Arizona, Catholics and Freedom of Religion

By GENE NICHOL

When Arizona went through its most recent brouhaha, there was much discussion of religious freedom. The governor eventually vetoed a bill that would have allowed businesses, acting on religious conviction, to deny services to gay and lesbian customers.

The statute’s backers were unsurprisingly distressed. Joseph La Rue of the Alliance Defending Freedom complained: “in America people are free to live and work according to their faith.” Religion isn’t “something we have to leave inside the house.” No government, under our system of constitutional liberty, can demand a citizen violate his sincerely held religious belief. We tolerate “no law” restricting faith’s “free exercise.” 

Like most, I’m powerfully drawn to such sentiments. Our national story was launched on the urgings of religious liberty. Instinctively, we (or at least very large numbers of us) declare fealty to the supremacy of faith. If presented with a collision between the teachings of church and the dictates of government, we seek to embrace the higher law. Can religious conscience ever be the price of doing business? It turns out, in a pluralistic democracy, it is not possible to assure, uniformly, that “people are free to live and work according to their faith.” Here’s why.

First, the array of claims capable of being made in the name of religious freedom is, literally, boundless. The Supreme Court has entertained cases asserting faith-based commands to engage in polygamy, discriminate on the basis of race, smoke peyote, conduct live animal slaughter, refuse to enter the draft, pay taxes, contribute to social security, obtain a photo ID, go to school past the 8th grade, and wear the prescribed military uniform while on duty. And these are lawsuits pressed by individuals or organizations with enough resources and ingenuity to work their way to our highest tribunal. Imagine what the list of non-traditional tenets, writ large, must actually look like.  

Second, you can’t, in a system of religious freedom, allow government to choose between good and bad, worthy and unworthy, acceptable and untenable religious claims. Were a public official to undertake such a classification, he would violate the central premise of the first amendment. We can’t say, consistent with constitutional stricture: “that’s not a valid religion.”

North Carolina Sen. Jerry Tillman, Republican co-chair of the state Education Committee, unwittingly, and embarrassingly, made this point to his hometown newspaper during our last legislative session. “People say it’s great that vouchers go to some of these Christian schools,” he noted. “But do you want to see money go to a Catholic school? Do you want to see it go to a Muslim school, one that teaches Islam?” Ugh.

Third, most free exercise claims are, by nature, arguments for special exemption from admittedly constitutional rules of general application. Amish plaintiffs didn’t say truancy laws were unconstitutional, just that they couldn’t be applied to them. Peyote practitioners didn’t seek to invalidate drug laws, but to claim special exemption from their reach. Bob Jones University didn’t argue that the civil rights statutes were void, they demanded immunity. The leaders of my religion (Catholic) don’t say requiring various contraceptive services in medical insurance is impermissible, just that the regulations can’t be applied to those of certain religious persuasion. Arizona legislators didn’t seek to invalidate anti-discrimination standards, they sought to excuse some from compliance. They pled, in each of these instances, perhaps ironically, for special rights.

So, if religious freedom claims are limitless; if they can’t constitutionally be sorted and sifted; and if they, inevitably, ask to be excused from rules that apply to everyone else, they pose unyielding tension with notions of equal applicability and the rule of law itself.  It’s not startling, then, that even notably conservative justices like Antonin Scalia would develop legal standards making it markedly more difficult to pursue free exercise actions. He and his colleagues would not agree that all can be “free to live and work according to their faith.”

I don’t find this result congenial. Free exercise claims, as the listing above reveals, are frequently the pleas of dissenters, often marginalized ones. We order our society to fit the patterns of majorities. (It would never occur to my public university to schedule classes on Christmas, though it might on the holy days of others.) Still, the more diverse a society becomes, the more difficult it is to give ascendancy to the standards of religion over those of democracy. And, as our Sen. Tillman clumsily reminds, when we cry for government accommodation of religion, we usually mean our own.

Gene Nichol is Boyd Tinsley Distinguished Professor of law and director of the Center on Poverty, Work and Opportunity at the University of North Carolina and President Emeritus of College of William & Mary.

From The Progressive Populist, April 15, 2014