Friday, January 26, 2007

Freedom of religion

The first amendment to the U.S. constitution states as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
There have been controversies over what exactly this means pretty much since the text of the first amendment was written. One question is whether or not this nation was formed as a "Christian nation," and ifso, does that mean anything, and if not, on which intellectual foundation was this nation formed? Max Dimont, in his book "The Jews in America," has an interesting take on the intellectual foundation of the United States - he believes that in fact America was formed by Christians who modelled themselves after Jews. I never thought of things that way, but his arguments are compelling. Firstly, if you think back to high school Social Studies, you may remember talk about how the Puritans thought of their society in Massachusetts as a sort of "city upon a hill." Where did that phrase come from? It didn't occur to me that the "city upon a hill" meant Jerusalem until I actually visited Jerusalem and saw it as the requisite "city upon a hill." In fact, Jerusalem does rest on top of a hill, and I believe there is a great deal of evidence to suggest that the Puritans viewed their society in Massachusetts as a neo-Jerusalem. I am astounded that this aspect of things was really not discussed nor developed in my AP American History class in high school. It took a trip to Israel for me to realize the obvious. But there is more. The Pilgrims saw themselves as analogous to the Hebrews who fled the Pharoah, and America as their "promised land." They viewed the American Indians as akin to the Canaanites. And moreover, the society that was built in the United States does in some ways reflect the society that existed during the ancient days of the Kingdom of Israel. What was the government like back then? There was the king (aka, president), there was the Sanhedrin (akin to the modern American judiciary), and the "congregation of Israel" (legislature). The intellectual foundation of the United States may be rooted in ancient Greece and Rome, but it is absolutely also rooted in ancient Israel. I cannot fathom why this is ignored in American schools today. It should also be noted that there was freedom of religion in ancient Israel. But America as a nation was heterogenious from the start - there were Catholics, Lutherans, Anglicans, and of course Jews who existed in the nation since colonial times. And each colony had a distinctive character. In order to allow for the formation of a more perfect single union, there had to be freedom of religion, and most importantly of all, federalism. And yet, implicit in this freedom of religion is the supremacy clause:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
Thus, if a state like South Dakota seeks to outlaw abortion, perhaps in the name of religion, they will be faced with the supremacy clause which says that Supreme Court and federal congressional law reigns supreme. A corollary to the abortion issue is that of birth controll pills. There are now pharmacists who are refusing to fill prescription birth control pills? Should they have the right to refuse prescriptions? I can easily see a compelling interest of women to prevent pregnancy - which interest is stronger? Should the pharmacy profession refuse to grant licenses to those who will not fill all legal prescriptions? A modern issue that Americans face is how much freedom to accord Muslims. At what point does allowing Muslims their freedom of religion conflict with other secular laws, as outlined in Lemon v. Kurtzman? One case that has been receiving particular attention is that of taxi drivers at the Minneapolis/St. Paul airport. These cab drivers are refusing to transport people who are carrying alcohol. As it stands, alcohol is legal in the United States. I would say there is a compelling state interest in transporting intoxicated people via cabs, rather than having them on the road. The interest is in preventing drunk driving. Thus, I would say that the Twin Cities could easily pass a law that requires all cab drivers to pick up intoxicated people. However, this case is dealing with people who are merely transporting alcohol - not those who are intoxicated. What such legitimate secular interest is there in transporting these people? One interest I can think of is the interest in freedom of commerce - namely, in allowing individuals to carry items they purchased lawfully back to their homes. Do you believe such an interest overrides the interest of Somali cab drivers to have their 'freedom of religion?' And most importantly of all, do you believe that imams should have the right to preach hatred inside mosques, in the name of 'religion?' Does freedom of religion mean freedom for a religion to be espousing ideas that call for violence against a state? Does a state hold the power to tell an imam he no longer has the ability to be a religious leader, if he is preaching violence? And where does freedom of speech come into this? Lest we forget, there is also the case of Brandenburg v. Ohio, which says that there must be a "clear and immediate danger" prior to the government banning speech. Should there be a different law in wartime? Is this wartime? And what are the implications, if this is wartime, given this is not some clearly defined war against a foreign nation, as World War II, for example, was? As you can see, the extent to which America is a "Christian nation" and affords freedom of religion is as gripping today as it was at the foundation of this great nation. There are no easy answers to these questions, only more questions. What do you think? Questions/comments/ideas?


felix said...

RedTulips, we are in an undeclared war, if we would just declare war then we could legally take on the radical islamists living here now.
Declaration of War

Red Tulips said...


I agree 100% with you.


Red Tulips

EnterCenter said...

I believe that Lemon v. Kurtzman is too amorphous a legal test for deciding when a government rule, regulation or policy violates the Establishment Clause. Since 1971, the Court has applied Lemon inconsistently, both within and among cases; it has applied the test in some cases and has refused to apply the test in others with virtually identical facts.

If a state refuses to pass a law that prevents a Muslim cab driver from enacting his taboo against a passenger in violation of regulations, the state is arguably establishing a religion, as the Establishment Clause (as interpreted by among other cases, Lemon, is presently constituted). A state policy of officially ignoring the state's own laws that has the effect of allowing some people to impose their taboos on others poses grave problems for a secular society. The freedom of religion claim, which no doubt a Muslim would bring if he were "banned" from prohibiting the carrying of alcohol by passengers in his car, is simply not compelling. This claim may even conflict with the Dormant Commerce Clause assuming the state has no prohibition against people carrying alcohol in cars.

As far as the "conscience clauses" developed by more and more states allowing people to refuse to fill prescriptions, the clauses, as they are written into law, are, I think, unconstitutional for the simple reason that the clauses prefer religion to non-religion. In other words, a person is allowed to not fill a prescription for religious reasons, but not for non-religious or purely philosphical ones, or simply because the person doesn't want to. Moreover, the very idea of the conscience clauses presupposes that the pharmacists who refuse to fill the positions are correctly interpreting religious dictates and the people who seek the denied medication - say, the morning-after pill, are incorrectly interpreting the dictates. A state that allows for conscience clauses is thus favoring one religious doctrine over another; Lemon and the "departure from doctrine" test developed by the Supreme Court in 1979 (this test requires that in a case where an issue turns on what is the actual religious rule when there are two competitors, the state must allow the relevant sectarian entity to state what the rule is, so as to prevent the state from becoming "excessively entangled" with religion by picking the "correct" doctrine) prohibit this. What if the person who is refused the medication can cite a portion of a religious text that supports the view that she is ENTITLED to the medication? Why shouldn't THAT view control? Since it doesn't, the state has made a conscious decision to allow someone's whims to dictate the progression of life and death scenarios (since of course, after all, a court cannot inquire into the "sincerity" of someone's beliefs).

One's religious taboos should not be inflicted upon the general public - not just because issues of unconstitutionality present themselves, but because free speech is chilled and an atmosphere is created where political correctness thrives. This is why I applaud the decision made by British authorities to force the teacher who refused to remove her veil to remove it if she wished to continue to teach. As the 1990 Smith case teaches, freedom of religion is not violated by a general law of neutral applicability that incidentally targets some people.

Felix' comments are puzzling to me. When war is formally declared -regardless of whom it is declared against, certain Geneva Convention provisions kick in. This is precisely why no war since WWII has been declared - so we can have our cake (a war) and eat it too (not play by the rules of war). I'm not sure that the declaration of war would affect the rights of radical extremists. A declaration is neither necessary or sufficient to revoke habeas corpus, and internment measures and other constitutionally suspect measures such as limiting a group's free speech do not require a formal declaration to be declared legitimate. In Korematsu, the Court's stating that "we had declared a war," therefore the internment was justified, was dicta. What bothers me is that some people believe that in a time of "war," however defined, the Constitution itself can be suspended. This issue, to me, is a no-brainer: the Constitution only allows for its own suspension/destruction upon the meeting of a Constitutional Convention/amending that document.

Anonymous said...

Fascinating comparison between Puritans and Jews; I guess I don't know my history all that well after all! I wonder what other examples have escaped unnoticed...

As far as the establishment/nonestablishment of religion and conscience clauses, I think we're dealing with somewhat separate issues. In fact, just the other day we discussed a patient's right not to accept treatment in a life-threatening reasons, and came to the conclusion that whether the patient asserts his right to autonomy on that basis alone or on the basis of religious belief doesn't really wind up making any difference. I think it's the same with conscience clauses. Whether someone refuses to fill a prescription because he's a devout person or for some other philosophical reason, it doesn't really matter, because the end result is the same. I think that in passing laws, Congress/states should avoid trying to get inside someone's head and divine a person's subjective reasons for actions (pun intended). Rather, statutes based on objective criteria have proven to be much more effective laws in many states.

Thomas Forsyth said...

If I recall, mnay Christian sects have claimed to be the new Chosen people to try and make themselves legitimate. The Mormons make this claim, as did the Puritans when arriving in the New World, and even the early Christians made this claim even though the link between Christianity and Judaism was severed when Paul of Tarsus, who probably ate a few mushrooms before seeing Jesus, eliminated the circumcison requirement for Christianity.

Personally I see more of a link between Puritanism and fundamentalist Islam, with Cromwell's coup paralelling the Iranian Revolution, and the Puritans in the New World as a bunch of intolerant jerks with a persecuition complex.

Now, when it come sto using religion to deny a consumer service, I am very reluctant to use the government to intervene, as I am heavily suspicious of 90% of positive liberty, which is not really liberty unless your are using an Orwell lexicon. If a pharmacist refuse sto fill a birth control perscription, it should be handled at the lowest level, and better handled by a state phramacy organization. For a muslim cabbi who refuses to transport a passnger carrying alchohol, complain to the company, as both situations would be better served by the market than positive law. A pharmacy that employs fundie docs may lose business, as would a cab agency that allows drivers to ban certain customers.

Irina> A lot of the fun stuff in history isn't learned in class, so don't feel too bad.

Red Tulips said...

Thomas, sorry, but your libertarian ideas simply do not work in this case.

There is an immediate harm for a woman whose morning after pill is not filled. If such a woman lives in a remote location, it may be hard to find another pharmacy in time to fill the prescription. Lest we forget, there is a limited window with which the prescription can be taken. The harm then is in an unwanted pregnancy, not simply having to shop somewhere else.

As far as banning alcohol in cabs, there's two harms. Harm #1 is the harm to society if drunk people find it hard to hail cabs. The harm is that they will then drive instead, and get into car crashes. Harm #2 is for those who are transporting alcohol from the airport - namely, the harm to interstate commerce. (given, these individuals will be travelling across state and/or international lines) The dormant commerce clause then becomes an issue.

In short, there actually are harms to individuals under both scenarios.

Merely allowing for individual choice forgets this.

tom said...

You still cant force someone to do something against their conscience.

As regards the pharmacist ... he/she can say I am "out of stock." No further explanation necessary. And offer alternative places such as another pharmacy, OBGYN, hospital, planned parenthood, clinic, etc. Has any court actually accepted a possible 3-day old unwanted pregnancy as being harmful to the woman? If the woman actually has conceived there are other ways of terminating the pregnancy or completing and adoption. Consenting to unprotected sex implies awareness of possible unwanted outcomes.

And when confronting a Somali cab driver, do you advertise your alcohol-filled bag? It should be possible to tuck the few bottles in a way as to not be seen or offend. How many bottles can one carry anyway? If you are transporting many bottles let the winery ship them back home (if legal in MN but this is another discussion).

I guess I'm trying to say that there is a way to satisfy without compromising one's principles.