The 1st Amendment: Part 1: Religious Liberty

The First Amendment

In the new tradition of almost timely posts, I've decided to renew my ongoing 27+ part series on US constitutional amendments.  Today we have part 2 (you can read part 1 here).  Luckily, unlike my first piece, I had somewhere to start with this one and enough to say that I will most likely break this into three posts.

The Text:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As you might have surmised from the title, I'm going to stick to religion today, speech, press, and assembly will just have to wait until another time.  This is not an expression of importance; in many ways I believe the freedom of speech to be the most fundamental of all rights; this is solely because of the number of current issues regarding religious liberty and how it can contrast with civil rights.

Public Prayers

First, a local case currently pending a decision from the Supreme Court, the Town of Greece v. Galloway (a more comprehensive breakdown can be found here).  In summary, the Town of Greece opens their town meetings with a prayer and generally invites a member of the local clergy to lead it.  Those leading the prayers were primarily Christian and so non-Christian residents are suing to either have the prayers ended or expanded by giving guidelines to those leading the prayers as to what would be appropriate.  Let me start with this; I'm not a particularly religious person and public prayers outside of a church service always leave me feeling a little out of place. That said, I also realize that these prayers are an inescapable fact of life.  Even as a secular society we have no shortage of public institutions invoking deities through prayer to open meetings or any of a dozen other types of gatherings.  As (and I can't believe I'm citing him) Justice Alito raised during the arguments, no prayer can possibly appease every religion, especially when atheists are included in the discussion.  Typically this is why prayers of this sort are expected to be as inoffensive as possible, and come from a variety of sources; something that the Town of Greece had been trying to do, but failed to follow through on. The Supreme Court decision is due back this summer, but it's unlikely to be anything earth shattering.  A sweeping ruling could ban all such public prayers, which would be a wildly unpopular decision, so I expect it will amount to little more than some type of enforcement of more diverse prayers.

Aside from being of local relevance, this case lets us talk about what will be a recurring theme. Where does my freedom to exercise my religion end and someone else's begin?  This isn't an easy question to answer and it becomes the central argument in most of these cases.  Does the city have a right to open their sessions with a prayer if they choose to?  Do the clergy leading the prayers have the right to do so without government oversight?  Do the citizens have a right to a government that does not favor any one religion?  The city probably does have that right; without some compelling reason higher governments shouldn't be dictating to local governments how to run their own meetings.  The clergy definitely have the right to non-interference; just the concept of the government dictating which types of prayers are publicly acceptable is clearly unconstitutional, even if it would resolve the immediate problem.  Finally, the citizens definitely have the right to a government that respects all religions.  So how do we balance the rights of the city, the clergy, the citizens?  Perhaps the best answer is really to give time to each religion represented in the city.  There will always be some who feel put off by however the meetings are started regardless of the prayer or lack thereof, so sometimes the best thing to do is cycle through making everyone uncomfortable occasionally.

Birth Control

Second, the first big national topic, Birth Control and Religion.  I'll leave the analysis of the specific cases to the more qualified and speak to the general principles involved (though, again, SCOTUSblog is a fantastic resource for the curious about both Conestoga Wood v. Sebelius and Sebelius v Hobby Lobby).  I find these cases fascinating in the abstract.  Do private companies have a right to operate based on religious principles?  And, if so, to what extent are they allowed to enforce those principles on those who work for them?

For the most part we, as a society, don't care when businesses operate on religious principles.  If they want to be closed on Saturdays or Sundays, or choose not to sell alcohol, or operate a Kosher or Halal kitchen, or any other manner of operation that is based on religious tenets, we rarely care either as customers or as employees.  Unfortunately, under the Affordable Care Act, we have to deal with address the implications of faith based private businesses.  If we accept the premise that a business can be faith based regardless of their actual business, we must decide how far they are allowed to enforce that faith and we need to deal with the conflict between non-discrimination acts and those religious liberties.  Hobby Lobby can't refuse employment based solely on the religion of the applicants which means they must have some employees who do not share their religious beliefs.  Even if we accept that the owners are running their business based on their faith, do they have the right to limit the health care options of the employees who do not share those beliefs?  Must everyone who works for them adhere to their religious standards?  In any other situation this would be an almost obvious no, but because the ACA is so controversial, this is seen as another avenue to attack an unpopular (at least in some groups) law. Imagine if, instead, the employees were being required to maintain a religious diet, or join in management led prayers daily.  A common argument is that this is a slippery slope to religious exemptions for other types of medical coverage, but I see this as a slippery slope to employment discrimination.  If businesses are allowed to be adherents to a religion then they would be able to argue for all rights therein, not just this specific scenario.

Photographers and Cakes

Third, we're going west to the gay weddings, photographers, and cakes.  Arizona made big news twice, first for passing a deeply unsettling bill and second for vetoing it.  Arizona made the big news, but they weren't the only state with a bill of that nature on their agenda and they won't be the last.  This has also been couched as a "religious liberty" question.  Since the business owners are good faithful Christians who can't, in good conscience, provide services to gay couples, they must refuse service based on religious grounds and they argue that they should have that right based on the 1st amendment.  Unlike the first two questions, I don't believe that this is a question of religious liberty.  The first is a clear question of Establishment (City vs Citizens), while the second is definitely a case of Free Exercise (Company vs Employees).  This last situation is, at least in my opinion, a question of business rights vs consumer rights regardless of religion.

Some business owners would like the right to decline service to certain customers.  These are primarily service businesses and they are largely basing their current claims in religious beliefs.  Unfortunately I think this misses the fundamental question: Do businesses have a right to deny services to customers?  In most cases they don't unless there is a key business interest in that denial.  In that sense, it may circle back as a question implied by the Birth Control exception cases.  Does maintaining religious beliefs constitute a key business interest?  That's a tough argument to make since religions generally believe in individuals living properly rather than businesses.  A person might find salvation, but their bakery won't be joining them in heaven.  That said, I'm not entirely convinced that businesses should be required to serve individuals that they disapprove of.  Typically a business functions best by providing their services to everyone regardless of their particulars, but if they choose not to, that seems like a decision best defended under Freedom to Assemble rather than Freedom of Religion.

The Point?

So what is the point of all of this?  Much like the point I reached in The 2nd Amendment post; the point is that we're thinking about rights in ways that our bill of rights was never designed for.  Our founders wanted to ensure that we would not be citizens of a country with a new State Religion.  We were to be free of both the Church of England and the Pope.  We were to be free to exercise our own religious beliefs, whatever they may be.  Well we have that.  We live in a society where the government does not tell us which religion we must be members of and does not arrest us for exercising our own beliefs.  Everything beyond that, be it liberal or conservative, is trying to find a justification in a document where none was intended to meet our current needs.