The Confusing State of Religious Freedom

My sociology of religion students discovered an important lesson on Monday of last week. If you want me to abandon my plans for the day, ask me a religious freedom question. I had used Randall Balmer’s essay on the importance of the Bob Jones case as a set up for the day’s discussion on religion and race. Two questions later, we only had twenty minutes left and I hadn’t moved to the next PowerPoint slide.

The next class session, I had the pleasure of having Kelsey Dallas from Deseret News on Facebook Messenger. She was in DC covering groups for and against the Bladensburg Cross case which had oral arguments in the Supreme Court that morning. As she recounted in her story, at issue is whether the Cross is a symbol honoring war dead or is a distinctly religious symbol that violates the establishment clause. In this a reversal of what one might expect, the civic authorities defending the cross made the argument that this was simply a memorial without any religious significance.

This week the Supreme Court allowed a lower court decision banning taxpayer funds in New Jersey to be used for historic church renovations. While the news reports were about a dissent offered by Justice Kavanaugh complaining that this constituted “discrimination against religion”, it shows how the nature of state law influences our understandings of religious freedom or establishment. The New Jersey constitution explicitly prohibits taxpayer monies going to churches, separating it from the 2017 Missouri decision allowing a Lutheran school to gain access to funds generally available for non-religious purposes.

This week, the Portland, OR (where I spent 11 years) city council approved an ordinance that prohibits discrimination against citizens for being atheists or nonbelievers. In one of the least religious segments of the country, this ordinance is consistent with religious freedom jurisprudence. Think of it as the anti-RFRA.

Many people were upset when by a 5-4 vote, the Supreme Court failed to support Dominique Ray, a Muslim man who wanted an imam by his side when he was executed. The state argued that he’d been able to meet with an imam earlier in the day but that only correctional employees could be present. While the institution had a Christian chaplain on staff, it hired no full time Muslim clerics. The majority may have been right on the letter of the law, the lack of diversity within the religious supports within the prison raise likely establishment issues.

A similar issue of diversity and lack of sensitivity is present in a case currently underway in Arkansas. Three different Muslim groups with distinct religious teachings, are required to share a Friday prayer service. The prison provides separate worship opportunities for seven different Christian groups: Catholic, Baptist, Pentecostal, Jehovah’s Witness, Seventh Day Adventist, Protestant, and “General Christian”. Furthermore, the Muslims are required to regularly attend or lose their religious accommodations. The lesson here is that Arkansas recognized that different types of Christians would want to worship separately but, like Alabama, hasn’t considered the impacts of religious diversity.

Then there are the “religious belief” cases that are far more common in the news. (Likely because of the role of Christian Legal Organizations who keep those visible — read Daniel Bennett‘s excellent book for more detail.) In addition to the well-known cases of bakers and florists, we can add the concerns of tax preparers. The Indiana based tax preparer, who had done a woman’s taxes for several years, refused to prepare her joint return after she married her wife. Because the tax preparer believes that marriage is between a man and a woman, she felt that preparing the return would constitute an endorsement. She gave the couple the names of other tax preparers instead. Indiana does not have a non-discrimination law, so there is no official recourse.

Here’s one more interesting case involving religious beliefs. A high school wrestler in Colorado decided to forfeit his match rather than wrestle against a female opponent (pictured below — screen capture from the Washington Post).

To be clear, this isn’t a case of a transgender wrestler. The athletic association allows women to wrestle. Yet, the forfeiting wrestler explains his decision (in part) on his religious beliefs.

“There is something that I really do find problematic about the idea of wrestling with a girl, and a part of that does come from my faith and my belief,” said Johnston, who identifies as Christian and said he attends the International Anglican Church in Colorado Springs. “And a part of that does come from how I was raised to treat women as well as maybe from different experiences and things.”

As I’ve written before, these last two stories underscore the challenges presented by the Court’s fuzzy use of the phrase “sincerely held religious beliefs”. It is unclear what people really mean by that. It may well identify a felt discomfort with a situation that is uncomfortable or unknown. But I always want to know what precise religious views are being violated. Does doing taxes mean one is violating biblical beliefs? Is wrestling a girl who wants to wrestle something that puts one at odds with theological tenets?

In just the last few weeks we have evidence of how religious freedom must deal with diverse religious views (including no religion at all), how the states engage religious symbols in the contexts of their unique laws, and the uncertain nature of “religious beliefs”.

I fully expect my students to get me to chase down these rabbit trails quite frequently over the coming months.

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