There is this Supreme
Court case that is making the news, lately. Hobby Lobby, a corporation of hobby
stores, is suing for accommodation from the birth control mandate portion of
the Affordable Care Act (ACA – colloquially known as Obamacare) under the Religious
Freedom Restoration Act of 1993 (RFRA). This is a bit of an important case. If
they win the case, it will be the first time that for-profit corporations will
be seen as having the “right” to religious liberty in the same way that people
and religious non-profits (Church ministries) have. The implications will mean
that any business that is for-profit will have legal recourse to be exempt from
laws they claim religiously interfere with their business model. This is
exceptionally dangerous.
However, for many, this
might seem positive, especially if you are sympathetic with those who are
against the ACA. This issue has been majorly politicized since the US
Conference of Catholic Bishops (USCCB) objected to the original ruling that
required religious non-profits (except churches) provide birth control to their
employees despite official dogmatic religious objections to birth control. But
for me, even though I do have a certain amount of sympathy for someone who has
to abide by rules they have moral objections to, this is a dangerous
development. But before we can even have a thoughtful conversation about these
implications, we should first know the basics of law regarding religious
liberty – especially RFRA.
We do not have absolute
religious liberty in the United States. We never have. There are limits to that
liberty. For instance, no one is allowed to sacrifice another human being, even
if for religious reasons. Why? It is not because that religion is “untrue.” It
is because the state, our power as a collective, has a vested interest in a
person or groups not killing other persons or groups. The official legal
language for this is a “Compelling Interest.” We, as the people, create laws
when we have an interest in limiting the liberty of some in order to ensure the
rights of others. This is not only the way we think about laws concerning
religious liberty, but all laws really. You and I are not free to drive as fast
as we want because we have a compelling interest to make sure everyone drives
at a safe speed.
However, as a country
that wants to respect religious conscience, we also don’t want laws to impose
burdens to religious conscience unless for very good reasons. Our entire life
is based on compromise and we do it every day, most of the time without
noticing or with very little stress involved. But most religions have some kind
of hierarchical understanding of practices that can be compromised and those
that cannot. For instance, Christians share space and live peacefully with
those who willfully blaspheme – but to force a Christian to blaspheme would
place a burden on their conscience that is beyond just peaceable living.
Sometimes, even without ill intent, laws are made that inadvertently cause
significant tension on the religious conscience. The official legal language
for this is called “Substantial Burden.”
The art of respecting
religious liberty and respecting the rule of law is a constant “see-saw”
between the compelling interests of the state (us collectively) and the
substantial burdens imposed on individual conscience.
RFRA gives us calculus
for this see-saw. Here’s how it goes, in the form of a flowchart:
Does a law present a
“substantial burden” to someone’s ability to practice their religion?
If No, pass the law.
If Yes, next question.
Is there a “compelling state interest” to passing the
law?
If No, then people with a “substantial
burden” get special accommodation.
If Yes, then pass the law.
The calculus enshrined
in law is that compelling state interests always override substantial burdens.
The one caveat is that these laws have to apply to everyone. We can’t make laws
that target religious practice – like “You may not sacrifice animals. But
slaughtering them for food is ok.” Otherwise, the ability of the government to
make laws for important reasons always override petitions of religious freedom,
EVEN IF they impose substantial burdens.
This is a very
important rule. This means that individual conscience ALWAYS comes second to
the will of the people to make and enforce laws that are generally applicable
and have strong, significantly compelling reasons. Religious liberty, even by
our very accommodating standards, is not such a bulletproof legal defense as
most people think.
The trick is
determining, as a deliberative and discursive people, whether or not we have a
compelling interest in removing another person’s liberty to live according to
their religious conscience. This isn’t something that should be taken lightly.
And most importantly, it should only be done for reasons that we all can
reasonably be expected to accept without changing religious beliefs. In other
words, we should be diligent in making sure we protect a person’s journey in
finding truth and only stop that journey for reasons that have nothing to do with
whether or not we believe they have found the correct religious truth.
Do you agree? Please
keep in mind this isn’t a conservative vs. liberal split. There are prominent
liberals and conservatives on either side of the debate. I, despite my very
liberal leanings, find myself agreeing with Justice Antonin Scalia, a firebrand
conservative, on this issue.
More to come later this
week. Less boring explanations. More fun examples and thought experiments. Stay
tuned.
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