ACROSS THE COUNTRY, people are making strange claims about religious freedom.
That principle, we’re told, allows a photographer, or a baker, or a wedding planner to refuse service to same-sex couples. It permits a pharmacist to refuse to give a woman a drug her doctor has prescribed. It means that if your boss is offended by birth control, such coverage can be excluded from your healthcare plan. It gives Kim Davis and other government employees the right to refuse to do their jobs. How did we get to this place?
Blame it in part on the U.S. Supreme Court. The high court and some lower federal courts have adopted a legal theory that if a religious belief is “sincerely held,” it deserves heightened protection.
On its face, the concept of sincerely held beliefs being central to religious liberty isn’t at all strange or unusual. We really don’t want government getting into the business of quizzing people to determine if their religious or philosophical beliefs are sincerely held. (As a practical matter, this would be a very difficult thing to do anyway.) As a result, if someone asserts that a religious belief is sincerely held, the courts usually accept that without serious questioning.
That’s fine. What’s missing is an understanding that sincerity is not enough. People believe all manner of things quite sincerely. The question to ask is, “What does it mean for public policy?” In no application outside of religion is a sincerely held belief an excuse to do whatever you want. A fellow may sincerely believe that the federal government has no right to collect taxes. The IRS will still see that he pays them.
But when it comes to religion, it seems any sincerely held belief receives deference—and too often the fact that this belief is misguided or detrimental to other people is overlooked. That piece of the equation is missing. We need to recognize that a belief may be sincerely held—and also be utterly misguided, reckless, or harmful to others. And if that’s the case, the actions that spring from that belief may be curtailed.
For many years, this was the standard at the Supreme Court. Mormons were not permitted to practice polygamy, even though in the late nineteenth century they sincerely believed it was mandated by a deity, because the practice was seen as detrimental to society. Jehovah’s Witnesses weren’t permitted to compel young children to work long hours distributing religious literature because such practices smacked of child labor and interfered with a youngster’s need to be educated.
The standard began to erode in 1972 when the Supreme Court ruled in Wisconsin v. Yoder that members of an Old Order Amish group had the right to stop educating their children after the eighth grade, even though Wisconsin law mandated that children attend school until age sixteen. The Amish argued that laws requiring teenagers to attend high school violated their sincerely held religious beliefs. They pointed out that they were educating children in their own fashion by teaching them trades. The Amish won the case. The high court’s ruling showed no concern for the teens who were pulled from school and denied educational opportunities that could have given them a life beyond the manual trades in which they were compelled to labor at such a young age.
In 1990 the Supreme Court switched direction and ruled in Employment Division v. Smith that neutral laws of general applicability were binding on religious groups as well as everyone else. The decision sparked an outcry, which led to the 1993 passage of a federal law known as the Religious Freedom Restoration Act (RFRA). The high court’s Smith decision was seen by some observers as a tad inflexible. Indeed, it fell disproportionately on members of minority religious groups. RFRA was designed to help them, but years later in the hands of an ultra-conservative, five-justice majority the law became an instrument for things no one had contemplated in the early 1990s.
This leads us to where we are now. RFRA has become the legal weapon of choice for the owners of for-profit companies who won’t tolerate the presence of birth control in employee healthcare plans. In the most recent case, Zubik v. Burwell, officials at religious nonprofits such as sectarian colleges and nursing homes, argued in court, with a straight face, that asking them to fill out a short form to free them from providing birth control coverage was a violation of their sincerely held beliefs.
Let’s be clear: an accommodation was made for these groups. They didn’t have to pay for birth control coverage. All they had to do was tell the federal government that they didn’t want to pay for it, and a third-party insurer would step in. But in the view of these religious groups, the mere act of telling the government that they wanted an accommodation violated their rights! (How else, one wonders, is the government supposed to know?) Cases like this demonstrate the shortcomings of the sincerely held belief standard. In and of itself, it can lead to absurd results.
So, what’s the answer? For starters, the sincerely held belief standard must not be used in a vacuum. If your religious beliefs infringe on others’ rights, the actions that follow may need to be tempered, no matter your sincerity.
This concept has been missing from many debates over religious liberty lately. The fact you sincerely believe something doesn’t mean those beliefs are so worthy of deference that they should merit special protection. They may or they may not. Other factors need to be considered.
The debate over birth control access has been especially telling. In this debate, one important element is missing: reasonableness. We live in an age where premarital sex is more or less universal, as is the use of birth control among sexually active women of child-bearing years. Yet the Supreme Court, citing the sincerely held religious beliefs of one man who owns a chain of craft stores, made it harder for the thousands of people who work for him to access a critical component of healthcare. Thus a self-asserted religious claim was permitted to trump the health and medical needs of many people.
The same holds true for the right to marry. The Supreme Court has held that same-sex couples may marry. A government clerk who doesn’t want to grant licenses to these couples should resign. Her religious beliefs may be sincere, but her expectation that those beliefs should give her the power to ignore the rights of others is unreasonable.
We need a religious freedom standard that recognizes reasonableness as a crucial tool for judging. Confronted with claims of religious liberty violations, we could ask a few questions: Is the government trying to prevent you from attending a house of worship? Have you been ordered to stop praying? Have religious texts been taken from you? Is there a drive afoot to make your religion illegal? Have you been denied the right to open a house of worship while other groups have had no problem doing so?
If the answer to any of these questions is yes, it sounds like you have a real religious liberty violation on your hands. But if someone in authority tells you that you have to take your sick child to a doctor instead of just praying for him, or if you’ve been ordered to stop obsessing over the pills your employees take at home, chances are good that your religious liberty is still intact.
In short, sincerity is nice—but it’s even better when it’s coupled with a strong dose of reasonableness.