The news is filled these days with reports of lawsuits in which religious ideas or practices are either asserted as rights or condemned as denying the rights of others. Yet it is remarkably difficult to have a thoughtful conversation about any of these cases.
One fundamental reason is that the word “right” is a weapon as much as it is a description. Many advocates of “rights” seem to believe that declaring something . . . anything . . . a right settles the debate in favor of the declared right.
But even if the label “right” is applied in a manner consistent with contemporary interpretations of the law, such a declaration only begins the struggle, rather than settling it. Because no right is without limit; even those most precious rights enshrined in the First Amendment or most powerfully expressed and applied through the Fourteenth Amendment are not absolute.
Freedom of speech illustrates the point nicely. Anyone who has dealt with the permitting of protests knows that there is a well-established doctrine allowing reasonable restriction of speech with regard to time, place and manner. The First Amendment’s declaration that “Congress shall make no law . . . abridging the freedom of speech” (emphasis added) does not, in fact, mean that Congress (or a state legislature, or a city council) cannot place any restrictions on its exercise.
Of course, what precedes the freedom of speech clause in the First Amendment are two clauses about religion. Both the prohibition on “establishment of religion” and the protection against the restriction of the “free exercise of religion” are in play in numerous cases winding their way through the judicial system. These cases challenge acts of the government and of private individuals that are rooted in religion convictions.
The rights in the First Amendment concerning religion, like all other rights, are not without limit. This is because the free exercise of religion may conflict with other rights, especially those having to do with the equal protection of the law. We need only remember how some Christian preachers and adherents once justified slavery to see this in a vivid historical example.
It’s a horrible example.
But does that historical example prove that in every conflict between religious convictions and Fourteenth Amendment rights the right answer is clear . . . and always on the side of assertions of the Fourteenth Amendment’s protections?
This is not a hypothetical question.
There are contemporary cases challenging government actions on the grounds that they “establish” religion. Two examples: Town of Greece v. Galloway, currently under review by the U.S. Supreme Court, challenging prayers before council meetings, and DeLeon v Perry, in which a federal district judge ruled this week that Texas’ ban on same-sex marriage is unconstitutional. These cases, and others like them, occupy one end of the spectrum.
On the other, challenges are being brought by citizens who are asserting an infringement of their First Amendment right to the free exercise of religion. One current case (Elane Photography, LLC v Willock out of New Mexico, and currently under consideration by the U.S. Supreme Court) involves a private photographer who is asking for relief after being sued under New Mexico’s anti-discrimination laws for having refused to accept the business of a same-sex couple wanting photos of their commitment ceremony. Another (Hall v Walgreen Company, filed this month in the U.S. District Court for the Middle District of Tennessee) alleges wrongful termination of employment, asserting a First Amendment-inspired right of religious conscience against having to dispense the so-called “morning after” pill.
It’s convenient for us simply to dismiss these cases or lament them (depending on one’s ideological perspective). But we can ill afford such convenience.
The struggle to both honor the religious convictions of Americans (over 90 percent of whom believe in God, and 73 percent of whom believe in the virgin birth of Jesus) and to defend the rights of individuals, particularly those in the minority, is critically important not only for the individuals directly affected, but for all of us. Only if we learn to engage both sides of this divide thoughtfully, without demonization or condemnation, can we hope to sustain, let alone improve, a society founded both on freedom and on faith.