In the United States, Muslim women trying to maintain modesty should get female-only hours at the public pool, right? What about Wiccan troops who want a chaplain of their own, even if there are only a few thousand of them in the military? And Catholic business owners who believe that contraception is killing ”” should they have to provide it to employees, now that the health-care law requires that workers get it?
The debate over whether religious freedom is being threatened seems to have hit an apex, with the Catholic Church launching its biggest campaign in a generation against the contraception mandate. Even the presidential campaign is mixing it up; Mitt Romney’s latest ad asks, “When religious freedom is threatened, who do you want to stand with?”
But the real question is: What does religious freedom look like? As America gets more religiously diverse, the concept is becoming harder to define….
Notwithstanding the premise of diversity that we will all love each other, I expect more Balkinization and rising tension as rights collide. As secularization increases expect religion to be throw under the bus again with rising tension. In fact I would expect an increase in religious violence as we become more diverse.
It is inevitable that such diversity of religion will lead to a choice of which right has priority: freedom of religion or freedom from religion. Only when the generic (secular) “common good” more or less overlaps with the prevailing generic cumulative religious ethos can the system hold. One or the other will give soon– freedom of or freedom from.
I think it is clear where we are going. We are not a Country guided by founding principles anymore. We are now a Country governed the cultural sentiments of the moment.
She got it wrong in the first paragraph, and never really recovers. There is a difference between accommodating religious wants (sometimes even needs) such as women-only swimming and forcing people to engage in behavior they regard as immoral. The last I checked, there is no constitutional requirement for the government to provide anyone access to a swimming pool. Muslim women are free to use a private pool or skip swimming altogether. But say swimming was required by law and private pools were forbidden. That is the nature of the HHS mandates. Catholic business owners, and Catholics schools, hospitals, and charities, are being forced to provide contraception, including abortion-inducing drugs, and sterilization insurance coverage to their employees. And remember, once they have finished with the Catholics, they will be coming after the rest of you.
The problem is not what religious freedom means, because this is quite clear in both the prevailing philosophies of the founders, the plain and contextual meaning of the First Amendment guarantee, and the 200 years of jurisprudence and history which have given life to that guarantee. The problem is whether the mechanism written into t he First Amendment actually functions to protect religious freedom. The best recent scholarship suggests that it does not (See Hacker The Culture of Conservative Christian Litigation (2005) and John Witte Religion and the American Constitutional Experiment (2010)). On a side note, I highly recommend the Witte book as the best contemporary comprehensive scholarly work in the field. The reason why it does not work is identified in the article…namely diversity. This is perfectly illustrated in United States v. Reynolds (1878), where the Supreme Court ruled that polygamy was not allowed under the free exercise (of religion) clause because it was “contrary to the spirit of Christianity.†The vague wording of the clause relies upon a societal consensus over what does and does not constitute free exercise. For 200 years this was rooted in our common Christian (more accurately Protestant) identity. However, if one examines Supreme Court jurisprudence over the past forty years, the Court has arbitrarily gone back and forth on what is free exercise to the point where many believe the clause no longer provides any bases for a defense. This is why many religious exercise cases are now challenged under the free speech clause (again see Hacker 2005 and Witte 2010). Therefore, the most pressing question is that since the constitution guarantee doesn’t protect religious liberty who does protect it. The answer is the capricious and arbitrary will of nine men and women and indirectly the President we elect who appoint them. Any religious person in the United States should be very very concerned about the state of, arguable, the most fundamental right of concern to our founders.