Does religious freedom have limits?

Here is the question no one wants to ask, “Does religious freedom have limits?” Now, why do I ask that? Well, every freedom listed in the Bill of Rights has its limits. It is something that is not often brought up, but it is something that needs to be brought up now in the context of the debate between the Roman Catholic Church and the Obama administration. But, it also needs to be brought up in the context of denominations other than the Roman Catholic Church and the times when their beliefs conflict with Roman beliefs. You see, when it comes to public policy and law, there will be times when non-Romans will end up opposing official Roman Catholic theology. And those conflicts could lead to conflicts over public policy and law.

 Let me start with some easier limits. For instance, in 1919 Supreme Court Justice Oliver Wendell Holmes wrote:

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Each of our other Bill of Rights freedom is similarly limited. For instance, despite the various Pentagon Paper-like rulings, there are occasions during which the government can exercise prior restraint on publication, one of the clearest cases is when a judge forbids the media from publishing certain information that might make a fair trial impossible. Also forbidden from publication are things such as child pornography. The right to bear arms has been limited by court rulings that certain types of weapons may be legitimately forbidden and by state licensing laws. For instance, California, Massachusetts, Illinois, and South Carolina have very restrictive concealed carry laws, yet the courts have consistently ruled that the right to bear arms may be limited by the states through these various laws.

The freedom of religion has also been likewise limited. Note that though some religions believe that a person becomes an adult as early as 12, yet the courts have ruled time after time that any attempt to place that into effect by allowing the marriage of people of that age may legitimately be forbidden. Also, while there have been rulings that animal sacrifice must be permitted–for instance the Santeria case in Dade County, Florida, many years ago–even voluntary human sacrifice may be forbidden. Every freedom listed in the Bill of Rights and the Constitution of the United States has been limited in some way or another over the life of this country. That is, it is impossible to have absolute freedoms in this world. I am convinced that it will be possible in the new Heavens and the new Earth to have absolute freedom, but not on this Earth. Because we are fallen and damaged, we are unable to handle absolute freedom.

We are now involved in one of those moments that may lead to some additional definitions on the freedom of religion. As you have read in various places, churches, synagogues, and mosques objected to the way the Obama administration issued a mandate for coverage of abortion and contraceptive drugs. The churches, synagogues, and mosques won their fight in that a compromise was issued in which they would not be forced to cover those things that they were against. Rather, the mandate was placed on the insurance companies. But, the Roman Catholic Church objected against even that compromise. And here is where the problem is. Where does one draw the boundary?

Now, let’s try to think it through. Would you be in agreement that a person employed by a Jehovah’s Witness affiliated ministry, such as a school or thrift store or bakery or whatever should have health insurance that refuses to pay for a blood transfusion? Would you be in agreement that a Christian Science ministry of the same type should have no problem in refusing to offer any health insurance based on their beliefs? The question is where should the limits be set.

Some of the limits seem obvious. A ministry or business run by a religious organization should not be forced to do something which violates deeply held religious beliefs. But, how obvious? For instance, courts have ruled that the State has the right to require any religious building, even if it be a church, synagogue, or mosque, to build handicap accessible ramps. The courts have ruled that a religious organization must give tax-exempt receipts to donors or it will lose its tax-exempt status. The courts have ruled that it is not a violation of the separation of Church and State to force that organization to pay taxes if it refuses to follow the requirements of the USA tax code as it applies to religious organizations. Do you see what I mean about the limits only appearing to be obvious? Some feel that even that much requirement by the State is wrong. However, there is also a history of scam artists using the separation of Church and State to avoid taxes. This is why the courts have ruled that some regulation is allowed in spite of the apparently absolute prohibition of the Bill of Rights.

Now let’s follow this through. Where is the line between what a Church can insist on and what the State can insist on? OK, here is a hint: I do not have a good answer and I doubt that anyone in this country has a good answer. Why do I say that? Well, the Bill of Rights is a modern construct. Yes, the 1700’s is modern. When one looks at history, secular governments are an extremely modern construct. All history of the development of governments, up to the modern era, records that governments were always affiliated to a particular religion. Sometimes the religion was more tolerant and sometimes it was less tolerant. But, there was always a religion involved.

[Side note: Before someone mentions it, yes, I quite well know my history and know that several secular governments have been guilty of mass killings, horrendous tortures, and sickening repression. However, this is not a post about killing, torture, or repression.]

This is why it is so problematic to try to get a good definition and balance on the Bill of Rights. Both those who argue for a secular USA and those who argue for a religious USA have a point. That is because the Bill of Rights was a compromise between two sides of the USA, the religious side and the secular side. It was an uneasy compromise back then and it is an uneasy compromise today. There is little doubt that the Founding Fathers shared a common Christian culture. No, it was not a common Judeo-Christian culture other than in the sense that Christianity is the New Israel (as Saint Paul says). But, there is also little doubt that some, such as Thomas Jefferson and Benjamin Franklin, were unhappy with the restrictions of traditional Christianity and wished to ensure that they were not bound by them. There is also little doubt that the Christians did not trust each other either. The Puritans of New England did not trust the Roman Catholics of Maryland. The Quakers of Pennsylvania still remembered the persecutions of England. The former indentured servants of Georgia (and some of the other colonies) remembered what it was to experience debtor’s prison and debt slavery. And, newspapermen everywhere remembered what it was like to be arrested anytime they criticized the government. The Bill of Rights was a compromise designed to ensure that each group could carry on with as little interference as possible.

This is why no one has a good answer for where the line is between what a Church can insist on and what the State can insist on. It is because it was an acceptable compromise, not an absolute solution. What does this have to do with the current debate over healthcare insurance?

===MORE TO COME===