The Dangers of Accommodation of Religion Based on Religious Status, As Opposed to Religiously Motivated Practice, And the Duty of Religious Individuals to Obey the Law

By MARCI HAMILTON

Thursday, Apr. 05, 2007

Even now, decades later, we are still reaping the harvest from the Supreme Court's unfortunate 1972 decision in Wisconsin v. Yoder, which held that the Free Exercise Clause required that the Amish be permitted to avoid Wisconsin's neutral, generally applicable compulsory education law so that their children could be educated in farming. That case is the odd duck in First Amendment law, in that it held that a religious group could overcome the force of law simply by reason of asserting its religious beliefs. Yet some cling to it as if it were typical of the Supreme Court's view of the matter.

In fact, most other Supreme Court precedents, in sharp contrast, tend to follow the contrary principle espoused in the Court's 1971 decision in Gillette v. United States, and reiterated in its 1990 decision in Employment Div. v. Smith. Gillette said, and Smith quoted Gillette to the effect that, the Court's "cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a democratic government."

Yoder, unfortunately, planted the seeds of the opposite idea - that religious individuals and groups are relieved of the legal duties fixed by democratic government, and applicable to all. The result has been wrongheaded laws like the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act, which have cemented in the minds of some the erroneous belief that religious status is a privilege against the rule of law.

Lately, the problem of religious adherents believing they are truly "above the law" has become even worse.

A Troubling Trend: The Use of Religion to Claim Special Privileges

There is a rock-bottom principle that permeated the reasoning of the Framers at the Constitutional Convention: Humans will likely abuse what power they are given. We are seeing classic examples of such abuses of power when religious entities claim special privileges - even when their religious belief does not command their actions. In other words, such entities are using mere religious status to trump law and custom. That is an attempted extension of Yoder that bodes ill for civil society.

In a recent op-ed in the Wall Street Journal, Katherine Kersten points to interesting developments in Minnesota involving Muslim adherents: Apparently, some Muslim taxi drivers (Muslims constitute three-quarters of the taxi force) have been refusing to take passengers transporting alcohol. In addition, some Muslim cashiers at Target stores have begun to refuse to scan products containing pork. Experts say, however, that the Muslim religion does not prohibit taxi drivers from taking passengers with alcohol or touching pork. The prohibitions, instead, are against drinking the alcohol and eating the pork.

Thus, the refusal to take passengers or to scan items is arising from religious status, not religious belief. The message the taxi drivers and cashiers are sending is that they are members of a privileged class, who need not cooperate with the rest of society. The wine-toters can walk and the pork-eaters can scan their own products, thank you very much. When the privilege extends to status, we are at the end of civil society and entering a scary era of Balkanization.

Of course, this issue is far from limited to Muslims, and I do not mean to pick out Muslims in particular - but only use these instances as recent examples of a disturbing societal trend by which religious adherents, of a variety of creeds, are increasingly tending to believe and argue that they are above the law.

Other Examples of the Trend: Religious Land Use, and Clergy Abuse Litigation

On a similar note, and as I discussed in a previous column, some religious land use applicants have started to argue that they need extra large buildings because they must have only one massive service on the weekends - even though their religious organizations have no such belief. RLUIPA has invited such land use application and litigation strategies, by its very existence - and the message Congress sent in passing it. These combined forces have persuaded religious applicants that somehow they are a special breed of landowner, different from and better than the secular family next door, and entitled to trump the needs of the larger community.

RLUIPA has suggested to them, and many seem to believe, that it is their religious identity (not their beliefs) that determines legal conclusions. They believe they are superior landowners because they are religious landowners. Yet the only difference, from a constitutional perspective, between religious and other landowners, is that when religious landowners are denied zoning relief they get resort to the federal courts, while their neighbors receiving a similar ruling have no such recourse.

The same tactics have been present in clergy abuse litigation, in which the religious organizations have thrown their religious weight around, as though they are constitutionally untouchables. Their arguments boil down, however, to improper claims to special status -- as opposed to legitimate claims, based in the Free Exercise Clause, of protection for religiously-motivated conduct.

No religion to date has argued that child abuse by clergy is mandated by their beliefs, but I have yet to find a religion that is not more than willing to argue that liability for covering up that child abuse should be abated, simply because it is a religious institution. Similarly, religious institutions press for exemptions from abuse reporting requirements that are crucial to children's protection, with no greater justification than their own supposedly privileged status.

Religious Entities' Sense of Entitlement Is a Potentially Disastrous Development

A number of years ago, I published an article entitled "Free? Exercise," posing the question whether we had lost our way with respect to religious liberty, by creating a sense of entitlement for religious individuals. I have come to believe that the answer is obviously "Yes," and it does not bode well for America.

The Bush Administration's Faith-based Initiative program grew out of religious organizations' sense of entitlement to use federal and state funds for their mission activities. Here, again, the sense of entitlement goes far beyond what the Free Exercise Clause guarantees: The guarantee is one of freedom, not one of funding.

When religious individuals believe that they need not abide by the law, because their religious identity (as opposed to their religious beliefs) demands it, we become a religiously divided society -- at a time when the variety of religious beliefs is expanding geometrically. The logical result is Balkanization of the worst kind.

At the same time, religious devotion is trivialized, because it is treated as though it needs special treatment in order to survive. Religion has become a hothouse flower, and the law its prop. That is not merely Balkanization, but also the Europeanization of religion.

I now believe this concern should be uppermost in each and every American's mind. When protection for religious belief is transformed into protection for mere religious identity, we create a caste society far removed from the dream of disestablishment and liberty envisioned by the Framers.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).

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