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Monday, November 21, 2016

How Both Sides Get Religious Freedom Wrong

By working together, we can live in a world of religious protection and equality with non-religious people.

Over the last few years, our country has been embroiled in disagreement between two visions of the right to freely exercise religion. One side claims that this right extends only to a kind of freedom of conscience – the ability to believe whatever religion you chose. The other side argues for an exemption from generally applicable laws. Both sides are misguided. There is a better way based on natural rights that provides both equality and religious protection.

Freedom of Conscience

Can the limited right of freedom of conscience really be the full extent of constitutional protection?The view of the right as freedom of conscience culminated in the Supreme Court case of Employment Division v. Smith (1990). This case held that no “neutral law of general applicability” which did not target religion can violate the right to the free exercise of religion.

But can this limited right really be the full extent of constitutional protection? For instance, can the government ban the Christian holy sacrament of the Eucharist by banning wine? It seems unlikely that this was the meaning intended by the Founders, who were almost all Protestant. Even during the height of Prohibition, when everyone was prohibited from consuming wine, the law did not extend this far. The National Prohibition Act, designed to implement the Twenty-first Amendment, exempted wine “for sacramental purposes, or like religious rites.”

Freedom by Exception

The other view, with exceptions to generally applicable laws, does not apply if the law is sufficiently important and there is no other way to avoid burdening the religious practice. This was the view of the Supreme Court before Smith and was then statutorily applied to the federal government by the Religious Freedom Restoration Act.

The problem with this argument is one of fairness. Should people of strong broad religious beliefs be exempted from laws that apply to everyone else? For instance, Mennonites are exempt from the Affordable Care Act’s individual mandate. But this hardly seems fair to an atheist who is required to pay the individual mandate penalty-tax. Why should those who consume marijuana as part of a religious ceremony, such as the First Church of Cannabis, be allowed to do so when others cannot? Should those with strongly held secular philosophical views not be protected as well?

The Natural Right of Choice

A better way of looking at this problem is founded upon natural rights. These are the inalienable rights that pre-exist government, as outlined in the Declaration of Independence. All of the individual rights protected by the Bill of Rights can be seen as natural rights or the procedural protection of natural rights. The basic premise behind natural rights is individual liberty and autonomy: a person’s freedom to act in any manner not harmful to others. Freedom of speech, assembly, and the right to free exercise of religion are each part of this natural right of liberty. But these enumerated rights within the natural right of liberty are not the only ones protected by our Constitution as the Ninth Amendment makes clear.

The question should be: does the action cause harm to others?The Founders recognized that when someone expresses their opinion or prays to God, they do not harm others and so it is not right for others – even through government – to control their actions. So the question should be: does the action cause harm to others? If not, then the government cannot prohibit it.

Some have raised the problem of judicial enforcement of rights of this kind. They point at vague terms such as “harm” or “injury” to ask if judges can really make such a determination. But judges make these kinds of determinations every day in every civil case that comes before them.

This occurs when judges apply the doctrine of standing – the idea that someone who was not harmed cannot complain. Judges look to see if there was “injury-in-fact,” a concrete or particularized threat of harm that is actual or imminent. The idea of the natural right of liberty is that if no one is harmed, why should anyone – even the government – complain?

A person offering a prayer to God harms no one, and thus no one else has the right to complain and it cannot be prohibited by government. A religious ceremony conducted in a place of worship in which everyone consents to participate thus cannot rightly be prohibited.

This is the basis of the natural right to the free exercise of religion. Religious exercise is protected, but there is no special exception to general laws for people of religious faith. All people are protected from the government prohibiting actions which do not harm others, including acts of religion. By working together, we can live in a world of religious protection and equality with non-religious people.

  • Devin Watkins is an honors graduate of the Antonin Scalia Law School at George Mason University.