Back to Prindle Institute

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.

State Neutrality and Public Holidays

photograph of sign at Korean Costco identifying holidays

Now that Christmas is over it is a good time to reflect on its role as an American public holiday and the role of public holidays more generally. Christmas, a holiday originating as a blend of pagan solstice festivals and a Christian celebration of Christ’s birth has become, in the United States at least, a fairly secular holiday. While claims of a War on Christmas are overblown, there certainly is a decline in religious association with the holiday. This should come as no surprise since the rate of religious participation in the United States has been declining for many years. According to Pew, among Millennials 44 percent consider Christmas more of a “cultural holiday.”

What is a “cultural holiday” and what differentiates them from ordinary holidays? According to Etymonline, the word “holiday” derives from Old English “haligdæg,” itself derived from the words “halig” and “dæg” meaning “holy” and “day” respectively. “Haligdæg” though came with the particular meaning of “holy day, consecrated day, religious anniversary; Sabbath” with the sense of “day of exemption from labor and recreation” only coming centuries later.

So, holidays originally were days of religious observance. People would stop working to engage in festivities and religious rituals. The ethics of celebrating these holidays is clear-cut. These holidays originate with the command of one’s god or gods, and the commands of the gods must be followed in obedience of the moral rule “one must obey the gods.” The moral imperative to observe so-called “cultural holidays” is less clear. Any good Christian celebrates Christmas but what justifies the celebration of Christmas for an atheist, whose ethics preclude obedience to the commands of supposed gods, or a Hindu, who worships other gods? Further still, what is the moral imperative for governments and corporations to observe these holidays and to thus give their employees a break from work at these times?

In a religiously homogeneous society, the justification for these bodies to collectively observe holidays is clear: if all their members must observe the holiday as per their shared deity’s commands, they will be unable to do anything else. But in a multicultural society, how do these bodies decide which religious holidays to observe and which to ignore? And, how do they decide what secular holidays to endorse, such as Martin Luther King Jr. Day or Columbus day? There are important consequences to these decisions. The observance of religious holidays by secular governments and corporations may create a public perception of those religions being endorsed or recognized as true, leading to increased marginalization of religious minorities. And, there may be tension between the observance of particular religious holidays by the federal government and the establishment clause of the 1st Amendment. In addition, every holiday provides benefits, in the form of free time, for people as well as costs, in the form of less economic productivity and potentially a lack of work-hours for those who need or want them.

In the United States, the government can only declare “federal holidays,” on which federal employees may not work. Unlike many other countries, there are no “national holidays” on which businesses are required to close. Thus, there end up being a vague list of “public holidays” on which many businesses will close, though many will not, and the observance of holidays is totally up to the discretion of the particular business. Furthermore, businesses may provide either paid or unpaid time off for employees on these holidays. There are ten federal holidays and six public holidays that are “universally embraced,” being endorsed by 90 percent of businesses and organizations. These are New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving, and Christmas. Among these, only Christmas is an originally religious holiday. All the others are purely cultural holidays.

What would happen if suddenly Christmas was no longer a federal holiday and if businesses and organizations stopped recognizing it? For starters, many people would be very upset. According to Gallup, 93 percent of Americans celebrate Christmas and having to work on that day would certainly be annoying. However, there is no reason to think there would be mass protests or revolution; it is just a holiday after all. But, since it is so universally popular, people would try to make do. I see two ways people could do so: first, people could simply use their own paid vacation days on Christmas and/or Christmas Eve, and, second, people could observe Christmas on the weekend in years where it falls during the week, or whenever they have a regularly scheduled day off. However, there are problems with both of these approaches that may reveal just why people would be so upset if Christmas were to cease being a recognized holiday.

Americans do not get a lot of time off. Indeed, among other advanced economies, the United States is the only one which does not have a statutory minimum amount of paid time off. Legally, it would be possible for every working American outside of the federal government to work every weekday of the year. The United Kingdom guarantees 28 days of paid time off on top of nine national holidays; France has 25 days and eleven national holidays. Even our close neighbors Canada and Mexico beat us with 10 and 6 days guaranteed off and 9 and 7 national holidays, respectively. Few people could afford to use one of their precious few vacation days on Christmas, and many people do not even have paid time off that they could use to avoid working on Christmas. People’s rallying around these few public holidays has its source in this troubling lack of labor rights.

On the other hand, celebrating Christmas on a day other than December 25th would be an acknowledgment of the total secularization of the holiday. Those who complain about the supposed “War on Christmas” would have new ammunition. And, in reality, many people do consider Christmas a religious holiday. Those who would reject such moves to turn Christmas into a floating holiday like Thanksgiving would have to defend why only Christmas gets to be designated a public holiday, and thus why only Christianity gets a public holiday. Those who presently work on Eid or Diwali or Yom Kippur while devoutly following the corresponding non-Christian religion would have to be given good reason why only Christians get to have a holiday that does not count against their total paid time off.

The consideration of the idea that governments and businesses must observe Christmas thus reveals a number of problems including the limited labor rights in the United States and the problems of recognizing only one religion’s holidays. While any individual certainly has the right to celebrate whatever holidays he wishes in his free time, and no government or corporation tries to prevent this, there are a number of moral problems with the public endorsement of holidays. Holidays allow businesses to pacify their employees without guaranteeing them as much paid time off as do businesses in other nations. And, the fact that only certain religious holidays are publicly endorsed shows how Christianity-centric American society is, callous to those who follow Islam, Judaism, Hinduism, and other religions with holidays of their own.

Everyone likes to be able to stay home and get paid to do so. Few would complain to get paid time off on every religious holiday that exists. But as such a world would probably have no working days at all, it is hardly realistic. So long as there exist public holidays such as Christmas which preference one religion over all others in a society as multicultural as the United States there will be unjust inequity. So long as American workers depend on whatever holidays they can get just to have any paid time off, there will be oppression and control of people by corporations. People like Christmas; they would be a lot more miserable if they had to work on December 25th. But, it is important to consider why people depend so much on having holidays off and how people following other religions are left behind when only Christmas is such a widely endorsed religious public holiday.

Using Religion to Sell Sex: A Navratri-Themed Condom Ad

A Navrati ceremony

In the Indian state of Gujarat, Navratri, or “Nine Nights,” is in full swing with festivals and celebrations to mark the nine sacred days of the year in the Hindu faith. One of Hinduism’s most auspicious holidays, Navratri is dedicated to Maa Durga, with nine days of activities to celebrate each of the goddess’s avatars. However, this Navratri has not been completely tranquil, with a billboard ad campaign causing waves of controversy.  The billboard featured Bollywood actress Sunny Leone smiling coyly, with the tagline “This Navratri, play, but with love.” The slogan is accompanied by a pair of dandiya sticks and the logo for the condom brand, Manforce.

Continue reading “Using Religion to Sell Sex: A Navratri-Themed Condom Ad”