Tag Archives: Supreme Court

The Religious Freedom Restoration Act establishes religious privilege

In the United States, the Supreme Court tells us, corporations have the status of “people” and thus have attendant constitutional rights including freedom of religion. That allows corporations to decline to participate in aspects of Obamacare if it considers that doing so would be against the corporation’s religious beliefs.

This landmark “Hobby Lobby” ruling followed predictable lines, with five Catholic judges out-voting the Court’s four moderates. Much of the commentary has focused on the doctrine of awarding personhood to corporations. An equally important issue, however, is the role of the 1993 Religious Freedom Restoration Act, whose effects are seen for the first time.

That Act would have been better named the Religious Privilege Establishment Act. It requires that the:

“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”, with allowed exceptions only where the burden “furthers a compelling governmental interest”, and in addition “is the least restrictive means of furthering that compelling governmental interest”.

This privileges the religious since it grants greater import and status to a religious motivation for doing or not doing something than to a secular motivation for the same thing. Through this promotion of religious belief it is a law “respecting an establishment of religion” and thus it violates the First Amendment. Continue reading

Christians don’t understand religious freedom

Religious freedom is something we all support, but what does it mean? Many Christians are under the impression that it gives a religious person more rights to do something than a secular person would have. It doesn’t. What it means is that someone does not have fewer rights to do something owing to its religious content.

So if people are allowed to meet together to play chess or for a book club or simply to socialise, then religious freedom dictates that they must be allowed to meet for a Bible study or for religious worship. Similarly, a state cannot allow people to participate, say, in this flavour of Protestant or that flavour of Protestant worship, but not in Catholic worship. Religious freedom has most often been infringed by the religious, wanting to elevate their brand of religion above other brands.

In Elizabethan England a whole series of laws prohibited the Catholic mass, prescribed death for Catholic priests, compelled participation in the Church of England, and prescribed the Book of Common Prayer as the only legal form of worship. Such laws culminated in the Popery Act of 1698 and the Test Acts which disqualified Catholics and non-conformists from public office.

Later, the spread of ideas of religious freedom led to the Roman Catholic Relief Acts of 1791 and 1829, which allowed Catholics to practice their religion and to participate in society. This process culminated in what Thomas Jefferson regarded as his finest work, his Virginia Statute for Religious Freedom. Jefferson thought that the state had no proper business involving itself with religion, saying:

The legitimate powers of government extend to such acts only as are injurious to others. It does me no injury for my neighbor to say there are 20 gods, or no god. It neither picks my pocket nor breaks my leg.

Continue reading