Religious Freedom and the Constitution Paperback – April 10, 2010

Religious Freedom"Religious freedom," if properly understood, should be a principle that everyone can embrace. It encompasses freedom to practice one's religion, freedom in matters of religion (e.g., freedom from religion), and, more broadly, freedom in matters of conscience. Any one of these definitions should appeal both to people of faith and to the non-religious. The last one--freedom in matters of conscience--would be a term of choice for those who recognize that not all deeply-held beliefs and motivating moral principles are religious in nature.The term "religious freedom" is not used in the the U.S. Constitution's Bill of Rights. Nor is "freedom of religion." The First Amendment says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The two phrasal modifiers of "law" in this sentence are known respectively as the "establishment clause" and the "free exercise" clause, and they originally applied only to the federal government. In 1947, the U.S. Supreme Court decided, in Everson v. Board of Education, that the Due Process Clause of the 14th Amendment warranted the application of the law to states and municipalities as well.The Limits of FreedomIdeally, some of the rights guaranteed by the Constitution are unlimited in their application. No one should be subjected to cruel or unusual punishment under any circumstances, and every citizen has a right to due process of law.[...]Other guaranteed rights are necessarily limited. Their unrestrained exercise may harm or infringe on the liberties of others. The right to bear arms does not include the right to carry concealed weapons or to carry guns into schools and government buildings. The right to free expression does not include the right to defame or threaten others or to publish trade secrets or copyrighted material.Like the right to bear arms and the right to free expression, the right to free exercise of religion can never be absolute. It must work in tandem with the Establishment Clause and the Equal Protection Clause (of the 14th Amendment). A society in which everyone has unfettered freedom to exercise religious beliefs has no way to protect the vulnerable from faith-based abuse or to balance competing claims of faith and conscience.Children deserve legal protection from parents who would deny them medical treatment on religious grounds and from churches that protect and enable abusive priests.Underage girls need state protection from churchmen who claim their faith entitles them to multiple child brides.Religious and non-religious minorities deserve fair accommodation in the public sphere, where dominant faith groups sometimes attempt to mark out territory to spread their brands. Holiday displays (creches), the words "under God" in the Pledge of Allegiance, school-sponsored prayers, Ten Commandments monuments and crucifixes on public land, and the teaching of creationism and "intelligent design" in the schools--all have sparked controversy and required litigation because of the establishment issues that they raise.The underlying issue in all these cases is the same. School-sponsored prayers favor one religion over another, or they privilege religious belief over non-belief. In either case, they constitute an "establishment" of religion and a failure of equal protection if they are allowed by the courts. Ten Commandments monuments are suitable for church property but not for county courthouses, where they may be construed as an endorsement of Judeo-Christianity. Muslims, freethinkers, and Buddhists, among others, may feel excluded and disparaged when dominant religious tradition receive preferential treatment from government.Unlimited free exercise may also encroach on other freedoms that Americans enjoy. When churches are exempted from land-use laws so that they can become mega-churches, residential neighborhoods often suffer from the increased noise and congestion. The 14th Amendment, guaranteeing all citizens equal protection of the laws, has provided the grounds for legal challenge in many such cases.Ideally, citizens whose freedoms are abridged as the result of another group's free exercise can mount legal challenges and the courts will render a judgment consistent with First Amendment principles. Sometimes, however, legislatures enact laws favoring particular religious practices, and these laws go unchallenged for generations or are upheld by justices who either misinterpret or disregard the First Amendment.The so-called "blue laws," (now mostly repealed) were one of the most egregious examples of government establishment of religion. These laws were enacted by states and municipalities throughout the U.S. with the express purpose of enforcing the Christian observance of Sunday as a day of worship and rest. Most recreational and commercial activities were therefore prohibited on Sundays, creating an unfair advantage for Christians who wished to operate businesses on the Sabbath (Saturday), the required holy day for Seventh-Day Adventists and Jews. These religious minorities were, in effect, unable to engage in commerce for not just one day of the week but two.Disputes over free exercise and establishment have plagued U.S. jurisprudence since our nation's founding and may have become more bitter in the last half century. "Establishment" challenges are usually brought by separationists, while "free exercise" challenges come from accommodationists, who claim varying degrees of regulatory immunity for their religious institutions and practices.In their 2007 book, "Religious Freedom and the Constitution" (Harvard University Press), Christopher L. Eisgruber and Lawrence G. Sager look back through the history of church-state issues and conclude that the principle of Equal Liberty has been more helpful in settling disputes than either strict separation or regulatory immunity (aka, "accommodation"). Equal Liberty has a constitutional pedigree that few Americans are aware of. They explain it as follows:"Equal Liberty directs Americans away from abstract speculations about the ideal relationship of church and state--questions about, for example, whether we have too much or too little religion in our public life, or about whether religion is good or bad for us, or about which forms of spirituality are best. It focuses instead upon how to structure cooperation in circumstances of diversity, and, as a result, its principles steer reliably and consistently between extremes in search of what is fair."Two Extreme Views: Strict Separation vs. Regulatory Immunity and Accommodation.Strict SeparationIn 1802, Thomas Jefferson wrote to the Danbury Baptists Association, "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should `make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and state."The "wall of separation between church and state" is a useful metaphor, but not a constitutional principle. It has, however, served as a proxy for the clear First Amendment principle (expressed in the establishment clause) that no particular religion should be the favorite of the state. Taken too literally, it forecloses the possibility that religion and the state can affect each other. But in fact, there cannot be a firewall between church and state. Religious organizations in the U.S. are subject to laws enacted by the state and are beneficiaries of those same laws and of the services provided by the state. These include police and fire protection and access to legal process. Churches are subject to property laws, building codes, and land use regulations; their staffs enjoy the protections of labor laws and the benefits of state unemployment insurance programs.Strict separationists insist on prophylactic policies to keep the two spheres apart. Many of them hold that religion is divisive and should be starved of public support, while others feel that a high wall of separation makes their own religious practice more secure. Separationists of both these persuasions favor "bright-line" principles that exclude religious organizations from any form of public funding, even when secular groups with similar or identical programs are eligible. This "one size fits all" approach ignores differences between faith-based social services that package religious indoctrination with their services and those that do not. Prophylaxis may not always be fair, in the separationists' view, but it is easier to administer than statutes tailored to individual cases.Strict separationists also oppose exempting religiously-motivated individuals or groups from otherwise applicable laws. Thus, in their view, Mormon polygamy should be disallowed, as should the ritual use of Peyote by native Americans. No exemptions should be granted from tax laws, land use regulations, dress codes, educational requirements, or public health and safety regulations. Again, their all-or-nothing approach sometimes sacrifices fairness in the interest of simplicity.To say that strict separationism is an "extreme" position is not to say that its claims are necessarily inconsistent with Equal Liberty. A judicial decision based on an Equal Liberty approach might be completely acceptable to either a separationist or an accommodationist.Regulatory Immunity and AccommodationAt the other end of the spectrum are those who view any form of government regulation of religion as an infringement of free exercise. Some of these--the Christian Reconstructionists and Dominionists--even go so far as to advocate for the wholesale replacement of secular civil law by God's law (as they interpret it). Until recently, few Americans would have expected such ideas to gain traction in this country, but then we learned that two of the early candidates in the 2012 presidential election campaign (Texas Governor Rick Perry and Minnesota Congresswoman Michele Bachmann) had strong Dominionist ties.A more mainstream accommodationist view is that our legislatures and courts have sometimes been overly zealous in upholding the establishment clause, thereby imposing constitutional disabilities on religious expression.Common to all forms of accommodation is the belief that religion is good for society and that it should be encouraged by government. Encouragement might take the form of immunity from otherwise valid laws regarding polygamy, dress codes, children's health and safety, employment discrimination, and land-use laws. Or it might entail public funding of sectarian schools, social services, and the like.Equal LibertyEqual Liberty is fundamentally opposed to both strict separation and regulatory immunity, though--once again--its conclusions may satisfy advocates of either position. Though Equal Liberty rejects blanket demands for special concessions to religious interests, it also recognizes that these interests--particularly those of minority faiths--sometimes need and deserve government solicitude to protect them from the hostility of other affiliative groups. Thus, no concession for Mormon polygamy has been allowed by U.S. courts, and Sikh students have been prohibited from carrying ceremonial kirpan (knives), as their religion requires. Both practices encroach upon the liberties of others, and neither can be justified on grounds of fairness or equality. (The statutes apply equally to everyone regardless of religious belief.) On the other hand, Sikh police officers in Newark, New Jersey have been granted exemption from the force's ban on beards because other officers had been granted the same exemption on medical grounds (skin ailments). And a high school basketball association that allowed players to wear eyeglasses was required by court decision to make a comparable concession to orthodox Jewish players whose religion required them to wear yarmulkes.Eisgruber and Sager provide copious examples of court cases that illustrate how the Equal Liberty principle has been or should have been applied. Their book delivers a sorely needed perspective on the religious wars going on in the U.S. and will be of interest to all readers who value religious--and equal--liberty.

About 10 years ago, the American Civil Liberties Union filed three federal lawsuits against four counties in Kentucky alleging a violation of the First Amendment's Establishment Clause for displaying the Ten Commandments in courthouses. The ACLU won all three of the lawsuits in district courts, and the counties appealed to the United States Court of Appeals. The appellate judges reversed two of the cases, but let stand American Civil Liberties Union of Kentucky v. McCreary County in a decision filed on June 9, 2010. McCreary County plans to appeal to the United States Supreme Court, but the ACLU is not appealing the two other cases.In this scholarly book, the authors propose principles for deciding such cases and call their jurisprudence Equal Liberty. The authors discuss the Supreme Court's 2005 five-to-four decision in ACLU v. McCreary upholding a preliminary injunction against displaying the Ten Commandments. Equal Liberty does not preclude a decision in favor of the displays, but the authors disagree with the lengthy opinion written by Justice Antonin Scalia:"Three of the dissenters--Scalia, Rehnquist, and Thomas--also defended Kentucky's display on a more radical ground. They said that the Establishment Clause left the government entirely free to endorse religion over nonreligion and, indeed, to endorse monotheism over other forms of religion. That view, which Scalia tried to defend on historical grounds, is of course at radical odds with the principles of Equal Liberty." (p. 144)Eisgruber and Sager are liberals, and the Supreme Court may overturn the final decision in ACLU v. McCreary because the present court is less liberal than the court in 2005. But what is a liberal and why are some people liberal and not others? Why are the ACLU and the four counties of Kentucky willing to go to such expense and trouble over a display?Liberalism is discussed in Norman Podhoretz's new book  Why Are Jews Liberals? (Vintage)  Podhoretz is a non-liberal who used to be a liberal, and there is a chapter titled, "The 'Torah' of Liberalism." This is the beginning paragraph:"According to a well-known remark attributed to G. K. Chesterton, 'When men stop believing in God they don't believe in nothing; they believe in anything.' But this was not true of the Jewish immigrants who came to America from Eastern Europe. Almost all of the young intellectuals and political leaders among them had stopped believing in the God of Judaism, but it was not 'anything' they now believed in--it was Marxism. (Norman Podhoretz, Why Are Jews Liberals?, New York: Random House, 2009, p. 280)The first five books in the Bible is the Torah, but in the chapter title it is a reference to  Das Kapital , written by Karl Marx in 1867. In this essay, I will suggest a more complete explanation of political enthusiasms--such as the lawsuits in Kentucky--than the one hinted at by Podhoretz. My theory is when religious people "stop believing in God" they become, not Marxists, but atheistic humanists. Atheistic humanists are people who think religious faith is irrational. Since humans have a drive to know and understand everything, an irrational person lacks integrity. I will be arguing that religious faith is not irrational and atheistic humanists are the irrational ones. The lack of integrity and maturity that accompanies irrationality makes atheistic humanists prone to political extremism.Karl Marx (1818-1883) and Herbert Spencer (1820-1903) are two examples of atheistic humanists and political extremists. Karl Marx was obsessed with the unfairness of the interest income earned by capitalists and businessmen. Herbert Spencer was obsessed with improving the standard of living of his fellow human beings.According to economic theory at the time when Marx wrote Das Kapital, rent accrues to the owners of land, workers earn wages, and the owners of factories (capital goods) get interest. Marx thought that interest income should go to the workers because capital goods are produced by workers. In the 1880s, Carl Menger (1840-1921) and Eugen von Böhm-Bawerk (1851-1914) refuted Marx's ideas about capital and interest. They explained that interest comes from advancing money to the workers and the owners of capital goods during the time it takes to produce the finished product, not from the actual ownership of capital goods.Herbert Spencer advocated laissez-faire capitalism to the extent of being against helping people down on their luck:"It seems hard that an unskillfulness which with all his efforts he cannot overcome, should entail hunger upon the artizan. It seems hard that a labourer incapacitated by sickness from competing with his stronger fellows, should have to bear the resulting privations. It seems hard that widows and orphans should be left to struggle for life or death. Nevertheless, when regarded not separately, but in connection with the interests of universal humanity, these harsh fatalities are seen to be full of beneficence--the same beneficence which brings to early graves the children of diseased parents, and singles out the intemperate and the debilitated as the victims of an epidemic." (Herbert Spencer (1903)  Social statics, abridged and revised: together with The man versus the state  , New York: D. Appleton & Company, p. 150)Herbert Spencer, not Charles Darwin (1809-1882), coined the phrase "survival of the fittest." Spencer was against relief programs financed by taxpayers and private charities. What Spencer and Marx had in common was their feeling that they were intellectually superior to people who have religious faith and their concern for the welfare of their fellow man.There are two kinds of knowledge: faith and reason. In reason, we know something is true because we can see the truth of it. In faith, we know something is true because God is telling us. Faith is a positive response to revelation. The resurrection of Jesus, for example, is an historical event that can't be explained in terms of any other historical event. The faith response to this event is to believe that Jesus entered into a new life with God or will do so at the end of time like all of God's prophets. Believing in God means believing our freedom is before God and that we can as individuals hope to be raised up after we die.Atheistic humanists think that religious faith is not only irrational, but is bad for humanity. The following quote is from the American Humanist Association:"SECOND: Promises of immortal salvation or fear of eternal damnation are both illusory and harmful. They distract humans from present concerns, from self-actualization, and from rectifying social injustices." ([...])The existence of God is a matter of reason, not faith. We know God exists because humans are finite beings, and finite beings need a cause. If all beings in the universe needed a cause, the universe would not be intelligible. This means there must exist at least one infinite being. In Western cultures, the infinite being is called God.The two legal sages in the following passage ridicule people who believe in life after death:"More generally, any persons who hold that divine law trumps civil law will be strongly inclined to obey God rather than the state. Such persons will suffer the penalty imposed by civil law rather than betray their religious commitments. As a result, the price they pay will not be eternal damnation or whatever other terrifying punishments their deity (or deities) might meet out for noncompliance with divine commands, but the mundane sanctions of the state: loss of a job, ineligibility for benefits, or in some cases, imprisonment." (p. 104)The price that religious people pay when they betray God is a guilty conscience and the FEAR of going to hell. A fire and brimstone sermon is a style of Christian preaching that does not deserve to be mocked. When Jesus was on the cross, he told the thief on his right that he would be with him soon in paradise. That he said nothing to the other thief is frightening enough without imagining being tortured. Furthermore, punishments in this world are either preventative or punitive. Possible suffering in the world to come can't be understood in these terms. Maybe the state of sin is intrinsically miserable, so that sinners are not suffering for their sins but by their sins. In any case, all anyone needs to know about hell is that it is possible to totally reject God.The following quote from a Muslim who became an atheistic humanist shows if more people worried about not getting to heaven, there would be less alcoholism and illegitimate births. This quote also partly explains why many or most atheistic humanists deny God exists. If God exists, revelation may be true and we may have to pay for our sins:"One night in that Greek hotel I looked in the mirror and said out loud, 'I don't believe in God.' I said it slowly, enunciating it carefully, in Somali. And I felt relief."It felt right. There was no pain, but a real clarity. The long process of seeing the flaws in my belief structure and carefully tiptoeing around the frayed edges as parts of it were torn out, piece by piece--that was all over. The angels, watching from my shoulders; the mental tension about having sex without marriage, and drinking alcohol, and not observing any religious obligations--they were gone. The ever-present prospect of hellfire lifted, and my horizon seemed broader. (Ayaan Hirsi Ali,  Infidel , New York: Free Press, p. 281)According to the Bible and the Koran, our purpose in life is to serve God in this world and to be with Him in the next. If this is not true, what is the purpose of our lives? This is what a famous existentialist philosopher says:"Thus the passion of man is the reverse of that of Christ, for man loses himself as man in order that God may be born. But the idea of God is contradictory and we lose ourselves in vain. Man is a useless passion." (Jean-Paul Sartre,  Being And Nothingness: An Essay in Phenomenological Ontology , New York: Washington Square Press, p. 784)Atheistic humanists do not think man is a "useless passion." They think that our purpose in life is to achieve what they call fulfillment, self-actualization, or self-realization. This sounds better than saying our purpose in life is to be happy because everyone knows people who devote themselves to their own happiness tend to be unhappy.The goal of self-realization ignores the real problem we face in life. Because of our freedom, we have to decide how to fulfill ourselves or realize our potentials. The truth is that we can fulfill ourselves in different ways. Achieving fulfillment or self-realization is an ill-defined goal compared to the well-defined goal of getting to heaven by avoiding sin and performing good works.People who believe in God and hope (with "fear and trembling") to get to heaven know why they should be good. The famous atheist Sigmund Freud didn't know why people should be kind and honorable. This is what he said in a letter to a friend:"When I ask myself why I have always behaved honorably, ready to spare others and to be kind whenever possible, and when I did not give up doing so when I observed that in that way one harms oneself and becomes an anvil because other people are brutal and untrustworthy, then it is true, I have no answer." (Ernest Jones (1955),  The Life and Work of Sigmund Freud. , New York: Basic Books, Vol. II, p. 418)The first atheistic humanist in modern times to address questions of politics and government is Niccolò Machiavelli (1469-1527). Machiavelli said princes and officials in republics should promote the general welfare rather than concern themselves with being just and virtuous. Machiavellian means deceitful and cunning. Less well known is that "Old Nick" is another name for the Devil and comes from his first name. This is the kind of statement that earned Niccolò such opprobrium:"From this it may be concluded that men should either be caressed or exterminated, because they can avenge light injuries, but not severe ones. The damage done to a man should be such that there is no fear of vengeance." (Niccolò Machiavelli,  Prince and Other Works , Translation, Introduction and Notes by Allan H. Gilbert, New York: Hendricks House, 1964, p. 99)The reasons to believe in the Bible and the Koran can be grouped into three areas: the salvation history of mankind, the proof of God's existence, and the irrationality and ignorance of atheistic humanists. If atheistic humanists discussed revealed religion knowledgeably and intelligently, it would be an obstacle to faith. They are not especially unreasonable about our salvation history because there is little room for self-deception when it comes to historical events. Their lack of integrity comes out most clearly and demonstrably in two areas: the proof of God's existence and evolution. This is what the two law professors say about evolution:"The teaching of evolution is important not only as an answer to questions about the origin of human life, but as a foundational element in all of modern biology. Assessed as scientific theory (rather than theological doctrines), creation science and intelligent design strike us a slickly marketed intellectual snake oil, no more respectable than alchemy or cold fusion." (p. 188)The proof of God's existence comes from a method of inquiry called metaphysics. The idea that humans are finite beings is a metaphysical proposition, not a scientific one. That human beings have free will and conscious knowledge is also not a scientific statement. (Knowing that this page is black and white means more than that light is entering our eyes and going to our brains: it means an awareness of this.). We know we are rational animals because we can make ourselves the subject of our own knowledge. We can comprehend free will and conscious knowledge, but we can't define the concepts. It is a matter of common sense that human beings are embodied spirits or spiritual bodies.Biology textbooks don't say humans are embodied spirits, however, biology textbooks don't generally mention the existence of mental beings, such as abstractions, dreams, past and future, and mental constructs. An exception to this rule occurs in Biology, a textbook used by 65% of all biology majors in the United States. The index of the fourth edition has "mind-body duality" as an entry for page 776. The passage shows such a lack of understanding of "mind-body duality" that it must have been written by an atheistic humanist:"And certain properties of the human brain distinguish our species from all other animals. The human brain is, after all, the only known collection of matter that tries to understand itself. To most biologists, the brain and the mind are one and the same; understand how the brain is organized and how it works, and we'll understand such mindful functions as abstract thought and feelings. Some philosophers are less comfortable with this mechanistic view of mind, finding Descartes' concept of a mind-body duality more attractive." (Neil Campbell, Biology, Menlo Park, CA: The Benjamin/Cummings Publishing Company, 4th edition, p. 776 )The word "brain" refers to an organ in animals. The word "mind" is part of the well-known noun phrase "mind-body problem." This phrase refers to the question: What is the relationship between myself and my body? The question arises because we have free will. It is not called the self-body problem, I suppose, because there are related questions about "abstract thought," to use the textbook's example.The mind-body problem was not a mystery to René Descartes (1596-1650). He thought a human being is like a horse-drawn stagecoach with a driver on top. The team of horses is the body and the driver is a spiritual "little man" located between the eyes. This analysis conflicts with Descartes' real contribution to metaphysics: I think, therefore I am. A human being is one being, not two beings like a stagecoach with driver. The philosophical landscape of the author and publisher of Biology is limited to the molehills "brain and mind are one and the same" and "Descartes' concept of mind-body duality."The idea that evolution is an "answer to questions about the origin of human life," as the law professors put it, is pseudoscience. True science is that biology studies the evolution of the human body. Body and soul are the metaphysical concepts of matter and form applied to human beings. Form (soul) is the principle or incomplete being that makes humans equal to one another and superior to animals. Matter (body) is the principle that makes humans different from one another. Whether they know it or not, biologists need the concepts of body and soul to put the study of human beings--embodied spirits--on a rational basis.Calling creationism and intelligent design "slickly marketed intellectual snake oil" is another example of their contempt for people of faith. What the authors know about evolution comes from popular books and articles about evolution written by laymen trying to promote a particular philosophy or religious point of view. An intellectually curious person learns about evolution by reading textbooks, peer-reviewed articles, and scholarly works.The universe began 13 billion years ago (the Big Bang) and our solar system condensed into existence 5 billion years ago. Life began on Earth as bacteria and evolved into the present collection of species over a period of 3.5 billion years. There is no explanation for the Big Bang and the origin of life. There is also no explanation for evolution because the complexity of animals is so much greater than the complexity of bacteria. Natural selection only explains why species are adapted to their environment.Many laymen think either that natural selection explains evolution or that it is a matter of controversy among scientists. Biologists with Ph.D.s know better. The following quote is from research professors who have improved the theory of natural selection with a mechanism they call facilitated variation. There is nothing in this quote or the book itself that says natural selection explains the complexity of multi-cellular life:"Facilitated variation is not like orthogenesis, a theory championed by the American paleontologist Henry Osborn (1857-1935), which imbues organisms with an internal preset course of evolutionary a progression or variation unfolding over time. Natural selection remains a major part of the explanation of how organisms have evolved characteristics so well adapted to the environment." (Marc W. Kirschner and John C. Gerhart,  The Plausibility of Life: Resolving Darwin's Dilemma , p. 247)Equal Liberty justifies the ACLU's political actions in Kentucky against the Ten Commandments. Atheistic humanists are disadvantaged by the display of the Ten Commandments because they teach their children that God does not exist. Yet, their children see from the words "I am the Lord thy God" in courthouses that their parents are not mainstream citizens of the United States, but inhabit only the margins of American society.The authors of Religious Freedom and the Constitution think the term "religious freedom" has content and meaning. To them religious freedom is an ideal, not just a way of saying governing bodies in the United States should not promote religious faith:"We have not always lived up to the ideal of religious freedom that is so firmly embedded in the Constitution." (p. 2)In my opinion there is no such thing as religious freedom, just as there is no such thing as self-realization. There is only justice and virtue.