By Mathew Goldstein
The Justice Department claims that the free exercise of religion clause of the first amendment to our constitution includes the freedom to act as one's religion demands even when such actions curtail the civil rights of others or conflict with the laws. This threatens the rights of countless Americans, particularly religious minorities and nontheists. We see this in the recent executive order granting employers the option to omit contraceptive coverage from employer sponsored health insurance plans. We see this in the recent Justice Department amicus brief supporting a baker who refused to provide a same gender couple with a marriage cake. If free exercise of religion is not limited by civil rights protections, or generally applicable laws with good secular justifications, then where is the stopping line? How does a judge decide that a free exercise claim goes too far?
It is difficult to fathom how a business that is owned by holders of publicly traded stock can be said to worship a deity, or posses a religious belief, let alone exercise a religion. A way to avoid this difficulty has been to limit the applicability of free exercise claims to privately owned and "closely held" business. In a private ownership context the business is deemed to be a vehicle through which the business owners practice their religion. Donald Trump's recent executive order exempting businesses from including contraceptive coverage in health plans dispensed with this publicly owned versus privately owned distinction. This will provoke lawsuits because it is so unprecedentedly broad.
The approach taken by this Republican party administration, and to some extent by the Republican party more generally, favors allowing businesses to refuse to sell products or services to, and maybe also refuse to hire or promote, individuals who do not respect whatever false beliefs, or unjustified limits on behavior, the business decides to impose on its customers or employees in the name of exercising any of the many religions. The Justice Department now appears to be arguing that a federal contractor should be able to refuse to provide services to people, including in emergencies, without risk of losing federal contracts and that organizations which were prohibited from requiring all of their employees to follow the tenets of the organization's faith should instead be able to discriminate against such employees.
An obvious problem with interpretations of free exercise of religion that privileges religious beliefs over other beliefs is that religious beliefs are themselves contradicted by religious beliefs so that there is no way to adjudicate between conflicting free exercise claims without denying someone their free exercise of their religion. Another problem with privileging religious beliefs is that there is a lack of proper justification for the laws treating opposing beliefs differently. If person P1 claims X is their religious belief and person P2 claims ~X is their corresponding anti-religious belief then why should the law favor X over ~X?
We already know whose free exercise of religion will be disadvantaged if judges are required to resolve clashes between conflicting beliefs. The free exercise of religion by employers will triumph over that of employees and customers. Otherwise, the adherents of the smaller, less wealthy, less popular, less organized, less zealous, religion, or the religion that the judge disfavors, will partially lose free exercise of their religion.
Free exercise is a meritorious and viable legal principle when it functions as a general protection against government repression of religions, provided that it is subordinate to civil rights equity principles and to laws that are evidenced to promote human welfare, regardless of employer, employee, or customer status. The resulting secular laws may sometimes conflict with religiously motivated practices. In that case the religious practices lose. Interfering with religious practices is not a secular goal, it is a last resort from practical necessity.
It is not difficult to understand why some religious people who are convinced that their religion is both factually true and important object when their religious motivated practice is being restricted to accommodate those who have contrary beliefs or to respect secular laws. Insofar as our laws conflict with religious beliefs, those religious beliefs are arguably being disadvantaged, and therefore we should not be surprised if some people react negatively. Secular democratic government depends, at least to some extent, and arguably to a large extent, upon the citizenry being, at least to some extent, secular.
Accordingly, people who value secularism should argue publicly for secular government, but by itself that will not suffice. We also need to argue more generally against religion as an arbiter of the facts about how the world works because the inability of religion to identify facts about how the world works is the reason that laws should be secular instead of religious. If it were otherwise, if religion was a valid method for determining how the world works (if our universe was supernatural) then our laws should be religious instead of secular.