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Freedom of Religion Is Not Absolute

photograph of empty church pews

On April 7, 2020, prior to the Easter Holiday on Sunday April 12, 2020, Kansas Governor Laura Kelly issued an executive order which, among other things, had the effect of limiting the size of religious gatherings to fewer than ten people. Gov. Kelly’s order differed from similar stay-at-home orders issued by the governors of other states during the COVID-19 pandemic, like Florida’s Gov. Rick DeSantis, in that it did not include an exception for religious services. Subsequently the Legislative Coordinating Council of the Kansas State Legislature voted to revoke nearly all of Gov. Kelly’s emergency powers asserted in her executive order. Gov. Kelly then sued the Legislative Coordinating Council (LCC) for attempting to impede her constitutional powers as the executive of Kansas. Subsequently the Kansas Supreme Court upheld Gov. Kelly’s order, thus overturning the vote of the LCC.

The reporting on this case frames it as a decision between public health and religious liberty. This was, in fact, one of the stated concerns of the Kansas State Legislature’s LCC. However, the Kansas Supreme Court’s decision did not directly touch on issues of religious liberty. Instead the court reached its decision on procedural grounds, arguing that the Kansas State Legislature in general could not be a party to this lawsuit and that further the LCC did not have the authority in this instance to revoke Gov. Kelly’s executive order. That is, the LCC’s vote was null and void, as if it had never occurred.

Let us suppose, however, that the court had deigned to examine the constitutionality of Gov. Kelly’s order with respect to freedom of religion. Would they inevitably have found that the freedom of religion of the citizens of Kansas has been impaired? After all, the First Amendment in the US Bill of Rights says that Congress shall make no law restricting the free exercise of religion. Further the Kansas Constitution’s Bill of Rights says something similar in its seventh section, stating that its citizens will never have their right to worship God according to their conscience infringed. Despite this uncompromising rhetoric, it is not a forgone conclusion that the court would have found in favor of the LCC.

No person’s rights exist in a vacuum. Each right that one person bears creates corresponding obligations on the part of other people, groups, or institutions. Your right to the free exercise of religion creates an obligation on the part of various levels of government, at the very least, to refrain from interfering in how you choose to worship. However, that doesn’t allow you to do anything you please to me under the auspices of your religion. My own right to religious freedom, among the others I bear, must also be safeguarded by the government. Should your freedom of religion come into conflict with some right of mine, some form of adjudication would be needed. In other words, which have been attributed to numerous writers, “Your rights end where my nose begins.”

Here we can make sense of an important concept in arguments about constitutional law—the idea of a strict scrutiny. A case in which it is alleged that a fundamental right has been infringed, or in which a law is alleged to be enacted or enforced selectively against a “suspect classification” (e.g., religion or nationality) compels the court to review that case under standards of strict scrutiny. Among other things the government must demonstrate that its actions, where they infringe upon a fundamental right or disproportionately affect a protected group, do so for a compelling interest. What might such an interest be? For example, protecting another group’s fundamental rights. Hence the government may restrict your freedom of religion, to the minimum extent possible, if doing so is an effective and direct way to protect other citizens’ right to life. (That is, in judicial jargon, the government’s actions are “narrowly tailored” to achieve its compelling interest.)

Do orders like Gov. Kelly’s satisfy a strict scrutiny test? They clearly do. The state has a compelling interest to protect the lives of its citizens. Moreover, the restrictions laid out by stay-at-home orders are narrowly tailored; they prohibit physical gatherings of more than ten people, except for essential activities. This is narrow tailoring because it limits the breadth of the restrictions as much as possible. The restrictions would fail to be narrow if they, for example, forbade any people from coming within ten feet of each other for any purpose whatsoever. Nor are virtual gatherings forbidden. (Many worshipers are taking advantage of various teleconferencing technologies to observe their religious holidays responsibly.) Further, any gatherings that do occur should involve significant physical distance between each participant. These requirements are in line with epidemiological guidelines for minimizing the likelihood of viral spread by bodily contact and aerial exchange. Hence the restrictions are also directly linked to the achievement of the compelling interest to protect the lives of citizens.

Is all of the grand rhetoric about inviolable and inalienable rights just so much hot air, then? What can it mean that Congress shall make no law limiting the free expression of religion if it is acceptable that people should sometime be limited in the expression of their religion? It means simply that the government—or at least parts of it, occasionally—realizes that rights are things held in common by all citizens at once. The adjudication of conflicting rights claims ought not be interpreted as a decision that some kind of right, or some particular person’s right, has mysteriously evaporated for a time. Rather it ought to be interpreted as courts figuring out exactly how all citizens can bear all fundamental rights at all times. Only a narrow and selfish view of your rights can lead you to insist that you can indulge yourself at the cost of other citizens’ life and liberty.

Uighur Re-Education and Freedom of Conscience

"Tiananmen Square & Forbidden city entrance, Beijing, China" by Joe Hunt licensed under CC BY 2.0 (via Flickr)..jpg

In August, UN’s human rights committees received credible information about abuses in the Xinjiang region of China. In this large, supposedly autonomous region in the west of China, there are about 11 million Uighur Muslims who speak a language similar to Turkish. The concerns raised to the UN committee included biometric testing, surveillance, and re-education programs against this significant minority population. Human Rights Watch reported that citizens that had family members living in any of 26 “sensitive” countries were being detained. The surveillance is said to include tracking people using coded entry to buildings and facial recognition technology, and the use of WhatsApp is being tracked. Credible reports to the UN claim that an estimated 1 million Uighurs are in camps undergoing torture and forced to praise the president while renouncing their religion.

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The Ethics of the Masterpiece Cake Shop Decision

Photo of cakes in a display case

On June 4, The Supreme Court announced its 7-2 ruling in favor of a baker who refused to bake a cake for the wedding of a same-sex couple.  The public response was intense on both sides. People took to the streets and to social media to express their attitudes about the decision.  One common misconception in the popular commentary on this topic appears to be that the Court ruled that places of business have the right to discriminate against patrons for religious reasons.  The Court’s decision was actually much narrower. It did not create a religious exemption from anti-discrimination laws.

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California Has its Own Travel Ban. Is That a Good Thing?

Photo of a California highway

In January 2017, a California law went into effect that prohibits state funding for travel to states that have passed laws that are discriminatory toward members of the LGBTQ community.  There are currently eight states on the list: Kansas, North Carolina, Mississippi, Tennessee, Alabama, Kentucky, South Dakota, and Texas.  The ban does not limit personal, private travel in any way.

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The Church, the State, and a Missouri Playground

In one of the final rulings before the Supreme Court’s summer recess, the court found that it was unconstitutional to deny civil funds to a Missouri church on the basis that it was a religious institution. Trinity Lutheran Church applied for a grant that would re-surface its playground with recycled tires, creating a safer rubber surface for its preschool children to play on. Forty-four non-profit organizations applied for the grants, and the church’s application ranked fourth among them, but it was denied the grant on the grounds that it was a religious institution and thereby is an ineligible beneficiary of these public benefits.

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Jehovah’s Witnesses: An Extremist Group in Russia

In April 1951, 9,000 Jehovah’s Witnesses boarded the Trans-Siberian railway and were sent to the far eastern corner of Russia, where they would effectively disappear. In both Nazi Germany and Stalinist Russia, Jehovah’s Witnesses were accused of being unpatriotic. Adherents to this sect of Christianity don’t vote, don’t attend patriotic statements that glorify violence, and don’t participate in war. In Nazi Germany, they refused to profess “Heil Hitler”, and now under Vladimir Putin, they refuse to join the Russian Orthodox Church or publicly oppose Syrian rebels. On April 20, Russia’s supreme court labeled Jehovah’s Witnesses an extremist group, putting them on the same level as other militant extremist groups like Al-Qaeda and IS. Russia’s supreme court ordered that the Jehovah’s Witnesses’ Russian headquarters be closed, as well as their 395 local chapters.

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Should Americans Hope for a President Pence?

A little over a month into Donald Trump’s presidency, chaos continues to swirl around even the most basic of the administration’s operations. High profile controversies – most notably, the emerging details about Trump surrogates’ contact with members of the Russian government during the campaign – continue to roil the nascent administration. From within, leaks to the press abound, painting a portrait of a chaotic White House even more defined by power struggles and botched policy rollouts than usual. And all the while, Trump continues to make inflammatory statements, most recently asserting without evidence that then-President Barack Obama ordered wiretapping of Trump Tower during the 2016 election.

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Identity and Pluralism in Merkel’s Call to Ban the Veil

On Tuesday, December 6th, German Chancellor Angela Merkel gave a speech calling for a ban on the full-face veil worn by some Muslim women. Earlier this year, Interior Minister Thomas de Maiziere also called for a ban on the full veil in public places. In defense of the ban, politicians appeal to society cohesion, and adherence to the values of Germany.

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Balancing Religious Freedom and Security in Germany’s Full-Veil Ban

Although nations have been dealing with international Islamic terrorism since the 1960s, Islamism’s threat has expanded over the last half-century. It has seeped out of immediate regional disputes in the Middle East and found its way directly into Western territory with the 1993 bombing of the World Trade Centers and the subsequent attacks on the World Trade Center and the Pentagon in 2001.

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“French-ness” and the Burkini Ban

Multiple cities in the French Riviera banned Muslim women from wearing a “burkini” in public, a full body swimsuit resembling a wetsuit. France’s foremost court overturned these bans, arguing they “seriously, and clearly illegally, breached the fundamental freedoms to come and go, the freedom of beliefs and individual freedom.” Over 30 cities in France had prohibited women from wearing the religiously-motivated swimsuit at public beaches, even forcing women to leave the beach and only allowing them to come back if they are wearing something more “appropriate.”

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Kim Davis: Civil Activist or Criminal?

Kim Davis, a county clerk from Morehead, Kentucky, was jailed recently for refusing to issue marriage licenses to a homosexual couple and two heterosexual couples on religious grounds. “I never imagined a day like this would come –“ she says, “- where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience.”  Continue reading “Kim Davis: Civil Activist or Criminal?”

Communion of a Different Kind

When the authors of Indiana’s Religious Freedom Restoration Act (RFRA) passed it into law, marijuana churches were probably the last things on their mind. Yet, only a few months after the act’s passing, Indiana’s First Church of Cannabis has been established. Existing under the freedoms established by RFRA, the church operates on principles of “love, respect, equality and compassion,” with marijuana as its official sacrament. While many have cast it as a joke or a political statement against RFRA, the church also raises a number of questions about how the government can and should interact with organized religion.

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