On Expanding the First Amendment

Trends can be hard to spot, sometimes even if you’re caught up in them. Having someone name an ongoing phenomenon of which you have been only subliminally aware, however, can be an epiphany.

I had such an epiphany while reading an article published by Political Research Associates. “The New Religious Freedom Argument: Gay Marriage in the 2012 Election” by Amy L. Stone points out that the religious Right is trying to expand the notion of freedom of religion beyond what is normally thought to be guaranteed by the First Amendment.

The argument recently advanced by Roman Catholic bishops in support of exempting church-related institutions from provisions of the Patient Protection and Affordable Care Act (ACA) was perplexing to me. It was not at all clear why requiring, for example, Catholic hospitals to provide reproductive services to their employees impinged on the rights of management by requiring them to support something of which they disapprove.

The government regulates commerce at many levels. In particular, it has long specified certain terms of employment through such legislation as minimum wage laws. The requirements of the ACA are no different in principle. If a Catholic hospital is required by law to provide no-cost contraception to female employees, how is it complicit in facilitating what the Catholic Church considers a sin? It is simply complying with a law passed democratically to which all employers in the country are subject. If a church-related employer is complicit in sin by providing contraception mandated by the ACA, is it any less complicit if an employee uses her wages to buy birth control pills herself? But the church has not argued that such an employee should not be allowed to buy the pill because it would compromise the church? Of course not; to do so would be ridiculous. It would make employment look more like slavery!

Amy Stone’s paper demystifies the Catholic Church’s argument and those of the likes of Hobby Lobby, a private “Christian” company that is objecting to the ACA requirement to provide reproductive health services to its employees as a restriction on the owners’ freedom of religion. (Hobby Lobby is suing the government over the requirement.) In such cases, the proponents argue that they have a constitutional right to live life in accordance with their religious beliefs.

Although “The New Religious Freedom Argument” focuses on marriage equality, Stone’s larger message is about how the religious Right is pursuing its agenda. She writes, “The Right’s new focus on religious freedom tries to reach a broad audience by using civil rights style language rather than morality to make its claim.” Thus, Hobby Lobby CEO David Green is not arguing that the burden of complying with the ACA should be lifted because complying with the law—and therefore the law itself— facilitates immoral behavior. Instead, he is claiming that religious freedom extends beyond freedom of belief and worship to—Stone quotes Matthew Wilson, associate professor of political science at Southern Methodist University here—“the ability to live a life of faith in the world, to act socially, economically, politically, etc. in concert with one’s convictions, without fear of being coerced by government into violating the tenets of faith.”

Moral arguments are unavailing when targeted at people who do not share the underlying belief of those making the argument. By using the rhetoric of civil rights, however, the Right seeks to appeal to a broader constituency concerned about fairness and civil liberties. The hope is that people of good will who are not religious extremists will buy the specious argument that “freedom of religion” should allow everyone to behave in accord with his or her own religious beliefs without concern for others. The religious Right is exhibiting the same attitudes we saw in the opposition to the public accommodations provisions of the Civil Rights Law of 1964, albeit with additional religious dress—“this is my business, and I should be able to run it any way I like, including serving whites only.”

If this expanded view of “freedom of religion” is embraced by a gullible nation—I suspect, or at least hope, that it will not be—it will result in an American society even more contentious and fragmented than it is already. It will not expand liberty, though it may provide more freedom to the wealthy at the expense of the non-wealthy, as if we need more of that in 2013.

It is easy to see what Stone calls the new religious freedom argument as nothing more than a power grab. It is that, of course, particularly on the part of right-wing media agitators. Those people, however, have encouraged the bewildering phenomenon of Christian paranoia. Although, by any practical measure, the United States is the most Christian (or, if you like, Christian-friendly) country in the world, Christians on the right have been convinced that they and their beliefs are under attack. The craziest of the crazies are even planning armed insurrection in defense of their “rights.” God help us.

Some sanity has recently been brought to the matter of religious freedom from, of all places, Europe. The European Court of Human Rights ruled yesterday on four cases from the United Kingdom of alleged persecution of Christians. Two cases involved wearing a cross at work, and two cases involved a refusal to perform one’s job when doing so involves serving gay people. The court found in favor of a plaintiff in only one case, that of one Nadia Eweida, an airline employee who wanted to wear a cross on a necklace along with her airline uniform. (The court’s 53-page opinion can be read here.)

Andrew Copson, chief executive of the British Humanist Association, summarized what the court did and how a democratic society should rationally deal with matters of religious practice. America should pay careful attention to his commonsense wisdom, which suggests what the response should be to the likes of the Roman Catholic Bishops and the CEO of Hobby Lobby. Copson’s statement, except for its British spelling and punctuation, could easily be the opinion of a wise American. He wrote

The European Court applied exactly the same tests and measures that we have been advocating for years. They asked the question “Will this manifestation of a person’s religion interfere with the rights of others?” In three out of the four cases they found it would and rightly dismissed them.

These cases have been repeatedly lost in court after court and have wasted an enormous amount of time just as they have generated a huge amount of unnecessarily divisive feeling amongst the public. The victim narrative that lies behind them, whipped up by the political Christian lobby groups that organise them and the socially conservative media that report them, has no basis in reality. The widespread misreporting of these cases under the guise of “Christian persecution” when they are anything but has undermined the chance of the public to get a really clear understanding of what the issues engaged by these cases really are.

What they describe as discrimination and marginalisation of Christians is in fact the proper upholding of human rights and equalities law and principles – principles which protect all people against unfair treatment – and we are pleased that the court has recognised this. All reasonable people will agree that there is scope in a secular democracy for reasonable accommodation of religious beliefs when that accommodation does not affect the rights and freedoms of others. But if believers try to invoke their beliefs as a defence for treating other people badly – denying them a service because they are gay or claiming a right to preach at them in a professional context – the law is right to prevent them. It’s not persecution of Christians; it’s the maintenance of a civilised society for all.