The Religious Right’s Assault on Religious Freedom

In 1785, a bill proposing a tax expenditure for Christian Teachers was opposed by the writer of the First Amendment. Today, even as such laws are commonplace, those who benefit from these expenditures seek to extend their purview to the spending habits of their employees. On what basis do they claim to have the right to do so? The First Amendment itself.

The particulars and context of the situation are fairly straightforward: the Little Sisters of the Poor (LSP) v. Burwell seeks to force taxpayers to fund health services for their own employees, who are to a significant extent already taxpayer funded. Having already won the ability to avoid paying into the healthcare fund, the tax exempt LSP organization asserts that even signing the voucher to opt out violates their right of religious exercise by providing other sources of payment for these services, making them, they argue, complicit in the procurement of contraceptives.

In doing so, they oppose the logic at the core of the First Amendment itself. James Madison, its author, drew on several sources for inspiration, one of whom was John Locke, who said:

Nobody, therefore, in fine, neither single persons nor churches, nay, nor even commonwealths, have any just title to invade the civil rights and worldly goods of each other upon pretence of religion.

We have already proved that the care of souls does not belong to the magistrate. Not a magisterial care…But a charitable care…cannot be denied unto any man. The care, therefore, of every man’s soul belongs unto himself and is to be left unto himself. But what if he neglect the care of his soul? I answer: What if he neglect the care of his health or of his estate… Will the magistrate provide by an express law that such a one shall not become poor or sick? [ 1 ]

Another was Thomas Jefferson, a close confidant and friend of Madison’s, who established the Virginia Statute for Religious Freedom in 1777. He wrote:

Be it enacted by General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities. [ 2 ]

Here is Madison himself, in his pamphlet attacking the bill to fund Christian Teachers:

Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to man, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens, so it violates the same principle, by granting to others peculiar exemptions. [ 3 ]

Now bear in mind that the freedom of religious exercise clause, which Madison clearly indicates refers to preventing the government from forcing citizens to participate in a religious ceremony or organization they do not believe in, which he specifically buttresses as being necessarily distinct from civil law, is claimed by the LSP as the right to make the following demand:

Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan. [ 4 ]

That is, they demand the special right of being entirely excluded from the law, of making no request for an opt-out, nor any payment for such specific services whatever, and further demanding that private insurance companies foot the bill for their religious opt out.

Consider that the premise of the case is that signing the voucher forces complicity on the LSP and their fellow litigants in the provision of birth control, and that they in this response explicitly demand the provision of these services by others. Consider as well that they argue the organization maintains an explicitly religious nature, which provides them standing to sue on the basis of the first amendment, but that they also accept government funding, as an expenditure, in the form of tax exemption. Their DC home for the elderly alone took in over $6,000,000 of donations in 2014 [ 5 ], which is neither taxed as income for the LSP, nor for the donors. They nevertheless intend on pitting an interpretation of the exercise clause which is wildly different from that of the Founders’ against the establishment clause.

In other words, the Little Sisters of the Poor vs. Burwell represents nothing so much as an attack on the Establishment clause and a redefinition of the Exercise clause in such a way as to ensure the special privileges from government the First Amendment was specifically written to prevent.

To my religious cousins, while I realize the internecine conflicts between Christian churches is much diminished in our age, have you considered the consequences of such a move in terms of other religions, not least of which is Islam?

To my atheist cousins, how can we remain true to our secular nature in light of these special rights for the religious, without allowing it to be said of us that we are a religion as well?

References follow:
[ 1 ]…
[ 2 ]…
[ 3 ] http://founders.archives.go…
[ 4 ]…
[ 5 ] http://www.charitynavigator…

Originally posted here.


The End of the Secular State


It isn’t just the decision that is so shocking, but the support it has among Supreme Court Justices. Justices Roberts, Kagan, Alito, and Kennedy agreed in full, Thomas, Breyer and Gorsuch agreed in part. Only Justices Ginsburg and Sotomayor dissented, with the latter writing the dissenting opinion. Roberts describes the logic of his decision this way:

Held: The Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status. Pp. 6–15.

(a) This Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion. Thus, in McDaniel v. Paty, 435 U. S. 618, the Court struck down a Tennessee statute disqualifying ministers from serving as delegates to the State’s constitutional convention. A plurality recognized that such a law discriminated against McDaniel by denying him a benefit solely because of his “status as a ‘minister.’ ”…

(b) The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character…

The Department contends that simply declining to allocate to Trinity Lutheran a subsidy the State had no obligation to provide does not meaningfully burden the Church’s free exercise rights. Absent any such burden, the argument continues, the Department is free to follow the State’s antiestablishment objection to providing funds directly to a church. But, as even the Department acknowledges, the Free Exercise Clause protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions”…

(c) The Department tries to sidestep this Court’s precedents by arguing that this case is instead controlled by Locke v. Davey. It is not. In Locke…Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church…

(d) The Department’s discriminatory policy does not survive the “most rigorous” scrutiny that this Court applies to laws imposing special disabilities on account of religious status…That standard demands a state interest “of the highest order” to justify the policy at issue…Yet the Department offers nothing more than Missouri’s preference for skating as far as possible from religious establishment concerns. In the face of the clear infringement on free exercise before the Court, that interest cannot qualify as compelling.

This is the majority ruling with which seven of the court’s nine judges agreed in full or in part. It is a farce, and represents such a direct assault on the intent, meaning, and purpose of the Establishment and Exercise Clauses that the decision can only be considered illegitimate, if not illegal.

Consider the weakness of the ruling’s own logic. Paragraph (a) argues that religious individuals and organizations cannot be denied generally available benefits due to their religious identity. Yet the decision succeeds in doing exactly this: the Court has decided that the state should tax citizens and use these monies to pay for clergy, which violates everyone’s freedom of exercise by forcing all citizens to financially support religious activities with which they disagree. Christians will pay for Satanists, Muslims for Jews, and Jews for Catholics, and atheists will be forced to support them all.

This is manifestly a violation of the Framer’s logic in establishing religious liberty in law. Thomas Jefferson, mentor to the writer of the First Amendment James Madison, established the template for American law regarding religion in his Virginia Statute for Religious Freedom, in which he wrote:

II. Be it enacted by the General Assembly, that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.

The phrase “that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever” is notable in that it represents the first clause of what is clearly a definition of religious exercise. What’s more, there is no conceivable means by which freedom of religious exercise can be interpreted without also including freedom from being forced to support any religion, since doing so forces one to commit religious acts with which one does not agree.

This contradiction is made explicit in paragraph (b), which in extraordinarily blatant language uses the Exercise Clause to directly attack the Establishment clause. In ( c ) a singularly specious logic is introduced to invent a new legal status, in which one’s religious identity is a question of who one is, rather than what one does. Beyond being well outside the scope of the First Amendment, this argument simply elides the fact that the religious identity of Trinity Lutheran is an explicit indication of what they will do, putting the Court’s logic in opposition to itself.

Paragraph (d) argues the state of Missouri violated the “most ‘rigorous scrutiny'” required of a law which, in Roberts’ language, “imposes special disabilities” on religious organizations. The language of the law he refers to reads:

(a) Under the Free Exercise Clause, a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability. Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872. However, where such a law is not neutral or not of general application, it must undergo the most rigorous of scrutiny: It must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest. Neutrality and general applicability are interrelated, and failure to satisfy one requirement is a likely indication that the other has not been satisfied.

What is clear, therefore, is that the Missouri decision to withhold state funding from Trinity Lutheran was a neutral and general law inasmuch as it pertains to all religions equally, and is required of it by the Exercise Clause. The Supreme Court has now ruled in Walz, 1979 that the state may provide taxpayer funds to religious organizations if such funding is available to all religions, and now that the state may not deny funding to religious organizations even if such funding is unavailable to all religions.

This decision, then, is an open assault on the meaning, logic, and historical purpose of the First Amendment. It’s more than that, however. It quite purposefully demolishes the authority of the Establishment Clause by doing for religious organizations what the Citizen’s United decision did for corporations: it makes them legally people, protected by law in the same way any citizen would be. It is, as Roberts has written, a question of identity, not purpose – even when the purpose of that identity is expressed in terms of itself. Roberts goes so far as to use the phrase “the Church’s free exercise rights”, which is a fabrication by him literally conferring the rights of citizens to religious organizations. Churches have no rights, to free exercise or any other kind. Citizens have rights to form organizations, which do not extend to forcing other citizens to pay for their religious observances.

Make no mistake: this is a calculated act intended to further weaken state secularism, to establish a de facto state religion, and to further consolidate the political union between the Republican party and American Christians. It is, in other words, the nail in the coffin of the secular state, and the beginning of a particularly American kind of quasi-theocracy.

I encourage all readers to write their Senators and Representatives, as well as their local media, to protest this grotesque assault on religious liberty and the US Constitution.