Tuesday, March 20, 2012

On Religious Freedom

The establishment clause of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The meaning couldn’t be clearer, but people still manage to find a way to disagree over it.

This was witnessed in February, 2012 after President Obama announced a policy requiring that employer-sponsored health insurance plans cover contraception. Heated objections were promptly raised by Catholic bishops. During the ensuing controversy, it became evident that some Americans believe that the establishment clause grants them freedom of conscience. As such, Catholic institutions should not be required to fund contraception if contraception is viewed as sinful. In contrast, other Americans believe that the establishment clause is designed to prevent the Catholic Church or any other church from interfering in government.
Notably, the controversy occurred during an election year. Both parties saw an opportunity to use it to their advantage. Republicans, wanting to shore up their base, opposed what they described as an “attack on religious freedom.” Many Christians in the United States believe that their faith is besieged by implacable secular humanists. Democrats, wanting to shore up their base, characterized the Republicans as enemies of reproductive freedom and women’s rights. Thus, the issue both inspired passion among feminists in the Democratic Party and helped to paint the Republican Party as the party of sexist Neanderthals.  This is all well and good, but as one grows older, these controversies, and the uses that political parties make of them, start to grow tiresome through sheer repetition.
These tactics wouldn’t succeed if it weren’t for partisans. Partisans readily believe that their favored party is defending a just cause. And they readily believe that the opposing party is conspiring to rob them of their freedoms. Those of us who have rejected partisanship realize that political parties are not particularly concerned about defending just causes or robbing folks of their freedoms. Parties are mainly about two things: raising money and winning elections. Just causes may be successfully defended or freedoms lost along the way, but those are ancillary concerns.
As it is with Coke and Pepsi or Tums and Rolaids, Republicans and Democrats need some way of demonstrating to the voter that there is actually a difference between the two parties. Therefore, election campaigns will invariably hinge on the few areas where the two parties actually disagree: God, guns, and gays. One year it’s contraception, the next year it’ll be gay marriage, abortion, gun control, stem cell research, infidelity in high places, gays in the military, and so on, all kept in steady rotation. God, guns, and gays differentiate the Republican and Democratic brands.
If one looks beyond the brand label at what’s inside the box, the product is the same. Neither party offers satisfactory answers to questions such as these: what do we do about the unchecked corporate predation of the American working class? How do we stem the loss of American jobs? How do we compel Congress to refrain from corrupt practices when members of Congress have a strong interest in continuing these practices? How do we prevent the stripping of American assets and the coming liquidation of this country by oligarchs who are only interested in short-term profits?
In an ideal situation, Americans would agree to disagree about religion, and put their heads together to solve these difficult problems. In reality, it seems inevitable that the matter of religion will continue to divide Americans. Therefore, it is in the interest of uniting Americans to study the establishment clause more closely. If people could agree on what the establishment clause means, maybe they’d agree that it was a good idea from the beginning.
The first step is to place the First Amendment in a historical context. The British monarchy, during the reign of Henry VIII, “established” the Anglican Church. In other words, the king decided that public money would be spent on building Anglican places of worship and paying the salaries of Anglican clergymen. Catholics had no say in the matter. Catholics were discriminated against and non-conforming Protestant denominations – the Puritans, for example -- were discriminated against. It wasn’t until 1840 that Catholics gained political influence in Great Britain and the Anglican Church was disestablished.
The first part of the establishment clause means, therefore, that Congress must not endorse or subsidize a particular religion. This makes sense. If Congress supported Catholics, the Protestants would complain. If the government supported Protestants, not only would the Catholics complain, but a lot of unemployed preachers will start calling themselves “Protestant.”  And who’s to say they aren’t?
Already, there is a problem. When the Obama administration announced its policy on insurance coverage for contraception, Senator Orrin Hatch complained that the policy had been developed without getting the blessing of Catholic bishops ahead of time. Admittedly, advising the president to consult bishops does not violate the First Amendment, but it does show a member of Congress expressing a preference for a particular religion.This is not true to the spirit of republican virtue.
One may ask, “why Catholics?” Why not rabbis, ministers, or imams? Only 24% of Americans consider themselves Catholic, and even devout Catholics ignore the bishops when it comes to birth control. Whereas bishops can only advise members of their flock to refrain from using birth control, politicians can say to women, “on the basis of religion, women who are employed at Catholic institutions, as compared to other women, will hereby face greater difficulty and financial hardship when seeking contraception.”
To this, John Locke would have retorted, “God Himself will not save men against their wills.” He believed that abiding by the dictates of a particular religion is only sincere and only capable of saving souls when it is done voluntarily. Thus, any form of cooperation between government and leaders of a particular religious faith will be to the detriment of that faith. Or, as Voltaire put it, “Politics has its source in evil than in the greatness of the human spirit.”
Rick Santorum, candidate for the Republican nomination.
Some may quarrel that no one has a right to contraception. It is a consumer product and obtaining it is simply a private economic decision. Having employer-sponsored health insurance is not a right in this country. In this country, health insurance is a fringe benefit that is subject to favorable tax treatment as an incentive to employers to offer it. Because employer-sponsored health insurance is subsidized by taxpayer dollars, the American people have an interest in urging that the same defined set of benefits be made available to all Americans. Or, at the very minimum, the American people have an interest in ensuring that people of a particular religious faith are not denied the coverage available to people of other faiths.
Still, there is the question of what is meant by phrases like, “freedom of conscience” or “free exercise of religion.” Thomas Jefferson explained: “religion is a matter which lies solely between Man and his God.” And, he noted that “the legitimate powers of government reach actions only, and not opinions.” Thus, it is necessary to build, “a wall of separation between Church and State.”[1] The idea of two separate spheres, private belief and civil interests, finds it origin in the writings of John Locke. Civil interests include the pursuit of a livelihood, liberty, health, and property. Locke writes that “no private person has any right in any manner to prejudice another person in his civil enjoyments because he is of another church or religion.”[2]
James Madison was especially insistent on maintaining the, “essential distinction between civil and religious functions.” When the state of Virginia sought to use public money to pay teachers of the Christian religion, he rose in opposition. In developing his position, he asserted that, “The Religion … of every man must be left to the conviction and conscience of every man.”[3] In his view, the very premise of a republican society is that people only abide by laws of their own making. If people are subject to laws that are not of their own making (i.e., laws belonging to a particular religious creed or tradition), Madison believed, they are slaves.
This conceptualization of religious tolerance has a long history in America, going back at least as far as Roger Williams’ A Letter to the Town of Providence, written in 1655. In that letter, Williams imagined a ship. “There goes many a Ship to Sea, with many a Hundred Souls in one Ship, whose Weal and Woe is common; and is true Picture of a Common-Wealth.” He added, “It hath fallen out sometimes, that both Papists and Protestants, Jews, and Turks, may be embarqued into one Ship.” Williams goes on to argue that members of the various faiths should be allowed to practice their separate faiths unmolested by one another or by the captain. Still, it is better that the passengers obey the captain, because he has the authority and qualifications to maintain peace and safety for all. The captain, of course, signifies civil government. It is not the Captain’s responsibility to proselytize or improve the morals of his passengers -- in these regards, the passengers are answerable only to God. The passengers on board the ship, even if they disagree with one another on matters of faith, are united by their desire for a safe and comfortable journey. If only it were so easy.

[1] Letter to the Danbury Baptist Association, 1802

[2] A Letter Concerning Toleration, 1689

[3] Memorial and Remonstrance against Religious Assessments, 1785

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