Last semester I took a philosophy class based on constitutional law. Because of the political differences surrounding this most recent election, I decided to focus on the political divisiveness of the U.S. and how the separation of church and state plays into some ideological differences. You can read it under the cut.
According to a survey done by the First Amendment Center (Haynes), 51% of Americans believe that the Constitution establishes this nation as a “Christian nation.” This could be because, for years now, the conservative right has been propagandizing this idea and telling Christian Americans that their individual right to religion is being trampled upon by those who support things like same-sex marriage, abortion, contraception, and other things that are intimate parts of our lives. What historians and scholars find, though, is that within The Constitution, we are given only the right to practice whichever religion we see fit for ourselves, or no religion, at all, and the government can make no law demanding that we practice any other religion. Therefore, we can say that this country was founded upon the idea that our government, including those who are judges and legislators, must not make or accept any law that would give one religious group power over any other group(s)- including but not limited to making other groups of people follow part(s) of that religion under the working guise that if others do not accept this, then their right to religious freedom is being violated. That being said, in this paper I hold that America is, in fact, a secular nation for the reason of allowing everyone their personal freedoms, and therefore using religion as a basis for decisions in the legal system is unconstitutional.
I will start first with my argument that this nation has historically stayed away from putting religion into government. John Adams, one of the framers of our nation, said, “The government of the United States is not, in any sense, founded on the Christian religion” (Schweitzer). But this goes one step further: our nation is founded on no religion, at all. It is built that way because our Founding fathers were skeptical of a nation that used religion as a legal basis. In Article VI of our Constitution, it states, “No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States” (Jefferson). This was not added in just for fun. This meant that political power would not be limited to those who practiced one certain religion- our government was meant to be open to all faiths or no faiths. Our Founding Fathers added this in because the Test Acts of England would exclude Catholics and non-conforming Protestants from participating in government, and would, therefore, be disenfranchising entire groups of citizens (Haynes, UK Parliament). Seeing the harm in such practices, they decided to set up our country so that all have the freedom to practice their religion openly and with the same protections. This freedom to practice religion does not mean anyone gets the right to force their beliefs onto others or create laws that have a basis in a particular religion or religious belief.
I will now make my argument that it is unconstitutional to enact or uphold such laws that impose religious beliefs upon citizens. I will begin with the case Lawrence v. Texas (Arthur, Shaw). In his opinion, Justice Kennedy states that there are certain spheres of our lives where “the State should not be a dominant presence.” He says that we have an autonomy that includes freedom of thought, belief, expression, and “certain intimate conduct” which would allow for things like same-sex intercourse within one’s home. What is most intriguing about Kennedy’s decision is what he says later on, though. He points at the condemnation of same-sex intercourse by those with certain religious or moral beliefs and how those beliefs, even if held by the majority, should not be enforced upon society by law through the power of the State. He points at the Due Process clause of the 14th Amendment of the Constitution as confirmation that our laws protect such personal decisions pertaining to marriage, procreation, contraception, et cetera. Kennedy follows with this: “If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons.” Thus, he says, any conduct made criminal by law that is supposed to be protected opens people up to discrimination. In this case, all aspects of the protected personal life he mentioned- marriage, contraception, procreation, etc- are opened up to discrimination when people make laws that target them unjustly and unconstitutionally. In his Goodridge v. Massachusetts Department of Public Health (Arthur, Shaw), Marshall states that the court is aware of the “deep-seated religious, moral, and ethical convictions” that people may have about same-sex marriage, but many people have deep-seated beliefs in the contrary, but these beliefs do not answer the question of whether or not a state has a right to deny a group of citizens a particular right, thus creating a group of “second-class citizens.” Marshall says that an exclusion of any one group from an institution that others get to enjoy is incompatible with the principles of respect for autonomy and equality under the law laid out in the Constitution.
In the Roe v. Wade (LII) decision, Justice Blackmun states, “One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion…Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.” Once more, the Court lets it be known that despite citizens having their own religious and moral beliefs, the job of the court is to make sure rights are not being violated and that all citizens are being treated equally under the law. This means that personal beliefs, no matter how strong they are, should not be a part of who gets protected and when they get protected under the Constitution.
In his decision for Engel v. Vitale (Arthur, Shaw), Justice Black states, “The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular religion, the inevitable result had been it had incurred the hatred, disrespect, and even contempt of those who held contrary beliefs.” He says that not allowing religion to seep into our government and laws is not the same as hostility towards religion or prayer- it simply means that people will be protected from a government and legislature that imposes religion upon citizens and then turns against them when they hold different beliefs. Simply put, we cannot allow our legislative and judiciary branches to deny citizens their equal and protected rights on the grounds that their rights violate your own religious ones. This ideology is harmful at its very best, and destructive at its worst, as we have seen that those who hold their religious views to the same standards as constitutional rights and legal protections go so far as to harass, attack, and stand against those who do not feel or believe as they do. I hold, above all else, that regardless of one’s personal views of what is or is not moral based on their religion, it is unconstitutional to bring those views into the realm of the law and I would say that our Founding Fathers and Court would not say otherwise.
I will now explain the controversy surrounding the idea of religious freedoms and then counter some statements made about constitutes a violation of one’s right to practice their religion. To first establish my thesis as controversial, I will point to two specific bills that were introduced to American citizens over the past two years: The “Religious Freedom Restoration Act” in Indiana and the “Protecting Freedom of Conscience from Government Discrimination Act” in Mississippi. Both laws are aimed at protecting citizens who feel their freedom to follow their religion is violated (Indiana General Assembly, Mississippi Legislature). The laws are in response to the following: same-sex marriage legalization, bathrooms and medical resources for trans* people, private businesses facing backlash for turning away same-sex couples. The Indiana bill states that the government cannot place a substantial burden on a person’s exercise of religion, but this would imply that the government has, in fact, attempted to do so in granting equal rights and protections to LGBTQ+ citizens. Similarly, the Mississippi law protects the following beliefs: Marriage is or should be recognized as the union of one man and one woman, sexual relations are properly reserved to such a marriage, and male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth (Mississippi Legislature).
Furthermore, I would like to present the recently unresolved Supreme Court case surrounding the Affordable Care Act and contraception. Under the ACA, women would be able to get free contraception, and houses of worship like churches would be automatically exempt. But now, religious schools, hospitals, and facilities for the sick and elderly are asking for the same exemption. Under the ACA, the groups would have to specifically choose to opt-out instead of being automatically exempt. The Little Sisters of The Poor in Washington, D.C. recently took their case to the court regarding the ACA opt-out saying it still places a burden on their ability to freely exercise their religion. This group and others say that they must either sin by providing contraceptives or pay fines and that they are still complicit in providing coverage when they opt-out. The reality of the situation is, though, – pointed out by Justice Ginsburg-that the ACA has third-party contraception providers so that religious organizations do not have to do so. Justice Sotomayor points to the fact that not every religious woman strictly adheres to not using contraception and many women, no matter their religion, have a real need for it. Justice Kennedy stated that it would be quite difficult for the court to make a decision stating that a religious university should be legally the same as a church in this case. After Scalia’s death and congress’s failure to hold a hearing for Obama’s nominee, the Supreme Court came to a 4-4 deadlock decision on the case (Totenberg).
We must remember that these laws are not just about the freedom to think a certain way, but the freedom to treat others a certain way based on your own religious convictions. While having your own religious beliefs and practicing those beliefs are covered under the First Amendment, it would be wrong to say that those freedoms permit one to treat any group of citizens differently than another simply because you might disagree with their choices/lifestyle. Thus, while our First Amendment gives one the freedom to believe whatever one would like, the Fourteenth Amendment protects individuals from laws that would deprive them of their rights without due process and from state laws that abridge certain privileges. In the case of the Affordable Care Act, the government allowed religious institutions to opt-out of providing contraceptives and made a third party responsible for getting it to those employees who still wanted it.This places no real burden on people of faith, it only highlights that there are people who live differently and choose different things for their own bodies. At most, the laws and cases I mentioned are in response to religious people being inconvenienced by those who live differently than they do and believe differently than they do. Being inconvenienced or even in some cases disgusted is not the same as having a burden placed on your ability to freely exercise your right to religion, nor even your right to think or express yourself a certain way. All the law should ask is that everyone is treated equally under it, and that goes for the people who practice religions, and those who might live in a way that goes against certain religious beliefs. What we know for sure is that there is a certain response from religious groups/legislators each time a law is passed ensuring equal protections to all citizens, and what we have seen is that in almost every case, our courts uphold these just laws and strike down the unjust ones because, under the First and Fourteenth Amendments, people have the right to practice religion how they would like and also have the right to be free from imposition by religious beliefs. Thus I hold that this nation was not only founded on secularism, but has since remained that way when at its best, and therefore religion as a basis for legal decisions and questions is unconstitutional.
Arthur, John, and William H. Shaw. Readings in the Philosophy of Law. Englewood Cliffs, NJ: Prentice Hall, 1993. Print.
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Totenberg, Nina. “Birth Control At The Supreme Court: Does Free Coverage Violate Religious Freedom?” NPR. NPR, n.d. Web. Nov. 2016. <http://www.npr.org/2016/03/23/471003272/birth-control-at-the-supreme-court-does-free-coverage-violate-religious-freedom>.