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Analysis of Constitutional Boundaries

Updated on February 2, 2013

There are two clauses I believe mainly deal with the topic of religion and politics. The first being The Establishment of Religion Clause which states, Congress shall make no law respecting an establishment of religion. This clause means, government cannot and should not create or support a specific religion. Also states the government shall be neutral in matters related to religion, and that government cannot authorize a specific church, cannot pass laws that favor or finance a specific religion over others, and cannot force a person to join a specific religion or have a specific religious belief. The Establishment Clause asserts that government should stay out of religion period.

The second clause which deals directly with this topic is The Free Exercise Clause. This clause has been interpreted by some to mean the free exercise of religion or freedom to practice religion without constraints. The clause gives each individual an entitlement to have whatever religious beliefs they wish however, religious actions, behavior and rituals must conform to secular laws passed by the government, when there are sound, convincing reasons for those laws. The Free Exercise Clause places limits on the government whereby the government cannot pass laws targeted at specific religions or at religion as a whole. The Free Exercise Clause requires the government and its laws to be neutral with respect to religion. The clause makes a distinction between beliefs and actions, behavior, and rituals. The problem is that a given church may not see the distinction between beliefs and actions in the same way that those who write the laws see it. Who’s to say what is a belief and what is an action and what is the formula for deciding between the two?

The recently passed Religious Freedom Restoration Act (RFRA) states that a person who alleges that his or her rights of free exercise of religion have been violated may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief. This Act essentially attempts to exempt religious institutions from civil laws that govern behavior when it is religiously motivated. In other words, civil laws would apply to everyone except those who claim their behavior is part and parcel of a religious belief. The distinction between belief and behavior becomes unclear. Where the government is taking action against a religious institution or individual, the Act requires the government to review three requirements. The first question asked is does the law impose a substantial burden on the religious institution or individual? The second is does the government have a compelling interest? And lastly are the least restrictive laws being applied? The Supreme Court was found RFRA to be unconstitutional as applied to the states.

Can government interfere with the religiously ceremonial ingesting of illegal drugs? By taking a closer look at the politics and legal arguments surrounding each issue you can start with Native Americans. For centuries they have a religious practice that includes the consumption of peyote. Peyote is known to have a hallucinogenic effect and its use and distribution is therefore prohibited by federal drug laws. The Supreme Court ruled that state drug laws overrode the free exercise of Native American religious practices which labeled the practice as illegal. Native American church members were prohibited by law from using peyote even in religious ceremonies. This alarmed the population who saw it as an attack on freedom of religion. To please voters, Congress enacted RFRA, requiring the government to show a compelling interest in criminalizing the religious practice. RFRA was later rules unconstitutional as it applied to state laws. In another case, members of a Brazilian church in New Mexico ingest hoasca during religious ceremonies. Hoasca also contains a hallucinogenic drug and therefore falls under federal drug laws. The group in New Mexico imports hoasca from Brazil. The dilemma becomes clear. Do federal drug laws apply to everyone or do they apply to everyone except those who use it in religious ceremonies?

On the one hand, the federal government stands to look good by enforcing drug laws and going after illegal drug importation and use. On the other hand, the federal government stands to look bad by seeming to threaten religious freedom and by seeming to decide what constitutes a religious act and what constitutes a criminal act. The case of the Brazilian church is before the Supreme Court and a number of established Christian churches including the National Association of Evangelicals, a top US Presbyterian church and the Christian Legal Society are opposing the federal government.

Can government prosecute parents for withholding medical treatment from their children based on religious beliefs? In all but 5 states Hawaii, Massachusetts, Maryland, Nebraska and North Carolina religious exemptions have been set up so parents can use their religious beliefs as a shield against prosecution for withholding medical treatment for their children. In states like Oregon and Colorado religious divisions such as Congregants of Church of Christ, Scientist, the Followers of Christ Church, the General Assembly and the Church of the First Born are strongly opposed to medical intervention in the case of illness. Jehovah’s Witnesses refuse to accept blood transfusions. These organizations believe instead that prayer will heal those who are ill. To members of these sects this is a religious practice and the law should have nothing to do with it. Others including the American Medical Association, the National District Attorneys Association, the Academy of American Pediatrics and the Supreme Court see it differently. In 1944 and in 1990 the Supreme Court ruled that while parents may free to become martyrs themselves, it does not follow that they are free to make martyrs of their children. Refusing to accept medical treatment for yourself is one thing but imposing your beliefs on another person, particularly children who may not be old enough to make an informed decision is quite unacceptable. This is allowed because the Church of Christ, Scientist has strong lobbies in Washington and in local town halls. It’s an easy sell. Religious belief is sacred under the Constitution and any challenges to religious practices are seen as a threat to religious freedom. If you are a politician and you want votes, then you must do as your religious base dictates. Support for religious exemptions for withholding medical treatment is thankfully dwindling in the United States.

Finally, can government erect a nativity scene on public property? It seems no one objects to nativity scenes placed in front of churches or menorahs placed in front of synagogues. This issue becomes emotionally charged when nativity scenes are placed on public government property. Some religious displays can be paid for or be sponsored by government or they may be paid for by private individuals or organizations. In some cases, the religious display is blended with secular displays e.g. Santa Claus or a “plastic” reindeer in order to dilute the religious content and make it appear to be less of a religious display. In other situations, a so called public square is chosen in the center of town or in public parks. This creates the appearance that the displays have not been given any special standing or treatment which is not available to all other displays all year round. Religious displays on public grounds are seen as government pushing a particular brand of religion, something that is clearly forbidden by the Establishment Clause. Furthermore, in the minds of some, it promotes the notion that the country is somehow Christian. For those who were not brought up in the Judeo Christian faiths this creates a sense of discomfort. Perhaps you are not quite American unless you are Judeo Christian. This is an unabashed violation of the separation of church and state. In 1989, the Supreme Court ruled that religious displays on public ground were unconstitutional in the case of County of Allegheny v ACLU. Some compromises have been tried such as including secular items plastic reindeers in the display, including more than one religious groups in the display and identifying the group or individual sponsoring the display. It is clear the government has no business interfering in religion.

Where should we draw the line between religion and politics? What constitutes criminal behavior and what constitutes belief? After 200 years of democracy, no simple bullet proof formula has been proposed that would satisfy all parties. Indeed in no country around the world, has any government found a completely workable solution. Possibly, the lesson to be learned here is that a free democratic society is a work-in-progress. It’s a constant, never ending struggle to find common ground, to find political compromises, to bend and sharpen but not distort the basic principles on which the country is founded. These principles were born out of the struggle to escape religious tyranny practiced in Europe during the 17th and 18th centuries. The founding fathers wanted nothing more to do with a state where religion controlled and dictated every aspect of everyday life. They saw how such a society could become. Therefore, when they migrated to the new land, a Constitution was put in place to build a society free from religious sanctions.

I think progress takes time. For example, at one time smoking was fashionable. It was not long ago that non smokers had no rights. The tobacco industry was so big that no politician dared to challenge them. Which governmental body, city, county, state, federal took second hand smoke seriously? Today attitudes have changed. Smoking is considered a disease, many cities have no smoking bylaws and second hand smoke is recognized as a health risk. A similar situation occurred with seat belts in automobiles and protective headgear for bikers. At one time they were seen as restrictions on personal freedom. Today, most people accept them as reasonable and sensible restrictions.

The only reasonable way to proceed is for society to debate and weight each situation as it comes up. I think with respect to drug use in Church, it is difficult to write legislation that would criminalize peyote yet allow the consumption of other drugs. For example, wine or alcohol is consumed by Christians as part of their religious beliefs. The consumption of wine by Christians is not an attempt to circumvent the Alcohol, Tobacco and Firearms act and is not meant to promote drug use. To be fair to everyone and with respect to withholding medical treatment for children and with respect to child abuse by priests and immunizations, there should be a complete repeal of all religious exemptions in child abuse, neglect and criminal statutes. There should be no exemptions from felony murder laws for faith healing parents who believe in the power of prayer to save their child. I believe most states are coming around to this and are reviewing their statutes.

When it comes to religious displays in public places, this too is being debated and being resolved in the public arena. Through the global reach of the internet more and more voices and faiths are participating and putting forward their views. I don’t think we need more laws to resolve this. All freedoms have limitations, and we as a democratic society see this first hand. You cannot yell fire in a cinema for example. The same goes to freedom of religion. It just takes time to work out where the boundaries should be drawn. I believe once reasonableness succeeds we will have a more sound way of creating these laws.


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