On Wednesday I attended a wonderful presentation of the International Center for Law and Religion Studies by BYU Law Professor Scharfs about the HHS contraception mandate in specific and the problem of our current legal understanding of religious expression.
Professor Scharf’s used the HHS contraception controversy as a jumping off point in order to discuss religious freedom in general.
I really enjoyed his analysis on why our focus in the sphere of general and neutral laws is flawed.
For those that do not follow legal issues very closely, the general standard espoused by the supreme court since the infamous Reynolds case about polygamy, but especially since Employment Division v. Smith is that if a law is constitutional even if it burdens some religious groups as long as it applies ‘equally’ to everyone. In the Smith case, a native American was denied unemployment benefits because he smoked peyote in compliance with deeply held religious convictions, and the court held that the law banning the the use of drugs is not overly burdensome to this religious group because the law applies equally to all.
America of course does not hold this view to quite the same degree as does parts of Europe. In europe there are bans for instance on kosher slaughter in the majority of nations, and Germany has recently been flirting with a ban on circumcision. I can not imagine those laws, thank god, passing or being deemed constitutional in America. ( This paragraph contains my thoughts not expressed by Prof. Scharfs)
Still, the traditional understanding has been that religious individuals can seek exemptions to neutral and valid laws. This is the case with the debate over the contraception ban. Catholic groups seek an exemption to the general law that applies to everyone in society.
In contrast, Prof Scharfes argues that we should move to an understanding of Religious Expression as more analogous to free speech. Its fundamental to realize that no law is truly general and neutral, he argued, because we all come to society with our own set of beliefs and understandings. He gave a great example with the Jehovah’s Witnesses and saluting the flag. At first, the court deemed that laws requiring saluting the flag were constitutional, even though for the most part they were passed explicitly against Jehvoah’s Witnesses.
Professor Scharfes argued that “Charaterizing religious freedom as an exemption fundamentally distorts issues at stake. Religious Freedom like other freedoms should be the presumption and should not require a justification. Rather the limitations should require special justification….”
He then challanged us to contrast Religious Freedom with Freedom of Speech. With Freedom of Speech it is different. Exemptions or limited coverage of a law is not characterized as an exemption from the law but a vindication of freedom. Limitations are considered limited exceptions to the general rule. Broad and sweeping ( neutral) limitations would be most suspect of all.
Imagine for instance a law broadly outlawing the publication of any biographical book without the author’s explicit permission. This law would be general and neutral on face, but would clearly be unacceptable and unconstitutional. Yet, such bans in regard to religion are tolerated. For instance, in France Muslim headgear is forbidden in schools, and there are cases involving bans on crucifix wearing exploding in England currently.
He suggests moving towards the model found in Japan and South Africa in recent years. The south African example was especially a good one .
There was a girl from South India who went to school with a nose stud which violated the dress policy, but was part of her traditional cultural/religious beliefs. The court found that it didn’t matter whether or not it was primarly cultural or religious and also that the practice did not have to be mandatory in the religion for it to be protected. They powerfully declared. “Religious and cultural practices are protected because they are central to human identity and hence to human dignity which is in turn central to equality.”
In that court’s estimation the fact that a law is on face general and neutral is not enough. Instead, the law must provide a reasonable accommodation, and the community must take positive measures and possibly additional hardship or expense to ensure that all can enjoy rights equally. This Protects those that do not or can not conform to society norms. On the whole, the courts will have to engage in a it more weighing of values, but this model would better protect the rights of everyone and further the interest of society in having a diverse society.
I really like Prof. Scharfs model. Under the general and neutral test, it is far too easy to craft laws that appear neutral but actually harm a minority disproportionately. An on face neutral law requiring, for instance, slaughter of animals in a particular secular fashion, has the effect of ending the livelihood of Jewish and Muslim butchers and burdening those communities very heavily. These laws are the modern path way of bigotry in a seemingly neutral face.
Prof. Scharfs answered questions about how these laws would play out in real cases such with pharmacists who do not want to fulfill prescriptions for the morning after pill. He, rightfully in my estimation, suggests a great degree of accommodation up to the point in which the rights of others are adversely harmed. Thus, in the case of a pharmacist, one working in a large store or in a big city would be able to refer a client a client elsewhere, while one working in a small town as the only employee would not have that same privilege.
The key difference between his model and the current one is that today a law is presumed valid if it appears neutral and requires affirmative pleading that it is not so. In contrast, Prof. Scharfs suggests that the default should be that religion should be protected, with narrowly tailored cases in which one may be forced to compromise belief if and only if it is absolutely necessary and outweighed by other rights.
Religious Freedom Discussion Series- Professor Scharfs ( “Accommodating Conscience: The HHS Contraception Mandate and the Problems Arising from General and Neutral Laws.”)
His credentials are incredible: Georgetown, Rhodes Scholar, Yale Law School! Very impressive pedigree.
Large controversy over mandate for contraception.
Exception to mandate
1) Primary purprose must be inculcation of religion
2) Employ primarily those of faith
3) Serve mostly those of faith
4) Qualify as church by tax status
Most groups would not qualify such as hospitals and charities.
Supporters- Matter of equal access to women’s health. War against Women
They are widely available and already subsidized by federal programs. Fight is more over who would pay: Government or private institutions
Feb 10, 2012 “compromise”- Organizations would not have to cover, but their providers would. Criticized as a distinction without a difference
500 Scholars and religious leaders criticized the compromise.
Political Ramification are yet unclear (Obama won Catholics 54% to 45% in 2008)
May 21 Coalition of catholic organizations filled more than 20 lawsuits against the mandate. Says the law violates the 1st amendment, Religious restoration act etc
Question of rhetoric and how we frame such issues.
Two standard positions
- General and Neutral laws should apply to everyone ( Equality, Neutrality and Non-discrimination)
- An exemption is warranted (Library, Conscience and Religious freedom.)
These arguments play out very simplistically
Very old discussion. Over conscription, work hours, flag saluting, capitol punishment, health care etc..
Workable compromises have been reached in most of these areas
Contempoary issues: Religious School Hiring, Religious Adoption Agencies, Service providers for Same Sex Couples.
Allegedly general and neautral laws are pitted against religious demands on the other hand.
Both sides of these debates fundamentally distort the values and issues at stake. Fault can be traced to Supreme Court
Employment Division v. Smith (USSC, 1990)
Majority (Scalia +4): General and Neutral laws are constitutional even if they burden religious freedom.
Minority: If laws burden religious freedom, then state must show compelling state interest and narrow tailoring.
Scaliia said its enough if law is valid and neutral and of general applicability. Even if it burdened religious practice it was permissible and no exception was required.
Interesting case because it illustrates the two views and the rhetorical straightjacket we wrap ourselves in when we defend them.
There is no such thing as general and neutral laws. Transforms free exercise clause into an equality clause
Virtually no laws affect everyone the same way. Neautrality is only possible relative to some baseline and they are never neutral themselves.
Law is general if it applies to everyone
Strong: no exceptions
Weak: exceptions permitted if they relate to purpose
Neutral if all affected in the same way
Strong: Everyone effected similarly
Weak: Law not intended to effect people differently
Focusing on purpose is weaker because we can say that if our hearts are pure and our hands are clear its alright. We did not intend for this law to create a special burden.
If we consider effects then the neutrality of this law is not clear. Someone is negatively affected more than others
Both weak and strong are disengenious, but especially the weak one
Reynolds case- No free exercise right to justify exemption to anti-polygamy laws. General and Neautral on face
But this sis totally wrong. It was clearly passed to harm Mormons. Numerous laws were passed specifically aimed not just at polygamy but at the Mormon Church on the whole.
Pledge of allegiance decision- Upheld as legislation of general scope. Also plainly disengenious. Enacted to coerce Jehovah’s witnesses to salute the flag after students cited religious reasons to not salute the flag.
There was an immense amount of anti-jehvah’s witnesses activity at the time
West Virginia state board v. Barnette- If there is any fixed star in our consituttional constellation it is that no official can proscribe views of citizens.
Dissent- Relies on generally neutral and applicable law.
Took six trips to supreme court to secure right to be free from coercion in the pledge.
Charaterizing religious freedom as an exemption fundamentally distorts issues at stake. Religious Freedom like other freedoms should be the presumption and should not require a justification. Rather then limitations should require special justification.
Problem: Exceptions are commonplace in law and are not usually loaded with rhetoric of ‘special treatment’
In Criminal law one has affirmative defenses and excuses or in contracts unconscionability arguments.
For example: Minimum wage law contains an immense amount of exceptions and exemptions.
Draft: Numerous exemption and deferments existed.
Often characterized for religious orgnization as a special dispensation allowing them to discriminate on the basis of religion. Styling exemption in this way makes it seem like a special favor
Contrast with Freedom of Speech. With Freedom of Speech it is different. Not characterized as an exemption from the law but a vindication of freedom. Limitations are considered limited exceptions to the general rule. Broad and sweeping ( neutral) limitations would be most suspect of all.
Religious activity is treated less like a right than a privellege. In this frame of mind it is very difficult to ask the right questions let alone come to the right conclusions.
This straightjacket is not inevitable.
Case in Japan of a refusal of a student to engage in kendo classes against his religious beliefs
School argued that it was impractical to offer alternatives and that it should not be concerned with religious faith of students.
Court disagreed. Said that offering alternatives does not harm those of other faiths. Does not promote the faith etc. Would not oppress or interfere with those that believe differently
School should check if there is any rational relevance between faith and request for accommodation. Such minimal investigation does not violate constitution. Rationally evaluate facts and make accommodation if reasonably possible. Presumption is that religious freedom should be taken seriously. Proposition that rule is general or neutral and this is an exemption does not event factor in analysis.
South Indian Girl with nose stud in South Africa. Cout did not find a big difference between religion and culture and the practice did not have to be mandatory. Can be a voluntary act that the indidivudal reguards as such. Does it protect voluntary action.
“Religious and cultural practices are protected because they are central to human identity and hence to human dignity which is in turn central to equality.”
Reasonable accommodation- Community must take positive measures and possibly additional hardship or expense to ensure that all can enjoy rights equally. Protects those that do not or can not conform to society norms. Excercie on proportionality that will depend intimately on the facts.
Subjective standard- If person states something is central to faith ti is not for others/court to tell them they are wrong.
Schools code was a ‘model general and neutral law’ Court found that acts of school was discriminatory and a violation of her rights.
Equality requires not just formal equality but taking and treating people seriousl in their complexity. Allow all people to enjoy their rights equally! Not limitless, but through balancing their interest and ways against hardship in granting
- Not a neutral law- includes exceptions
- Not a neutral law- It does not affect everyone in the same way ( Passed knowing the burden to the catholic church simply viewed as more important than concerns)
- Illiustrates how unhelpful our conceptual frameworks are in the U.S