The current debate swirling around reproductive rights is a position in favor of strong religious exemptions to secular laws, which is increasingly becoming the conservative party line. It’s a test of whether you support “religious freedom.”
Going down this path of allowing too many religious exemptions would, Antonin Scalia wrote in a 1990 Supreme Court decision, “lead towards anarchy.” We’d end up with “religious exemptions from civic obligations of almost every conceivable kind.” In another case, Justice Felix Frankfurter prophesied that this new world would be fraught with constitutional danger. Religious minorities could end up with too many “new privileges.” The First Amendment, he wrote, “gave religious equality, not civil immunity.” Then came the Religious Freedom Restoration Act, opening the doors for religious groups to make all the current religious freedom claims.
Until recently, religious freedom had been defined primarily as an absence of persecution and the separation of church and state. Now there is a new demand that the state must bend over backward to avoid making religious people choose between the law and their faiths.
As Christians have increasingly seen themselves as a persecuted minority, they have been the ones requesting religious accommodations: The bakers who claimed that they should be exempted from anti-discrimination laws or the nuns who didn’t want their organization’s employees to be eligible for contraceptive coverage under the Affordable Care Act and those who oppose federal funding for abortions. We should return to Justice Frankfurter’s position: religious equality, not civil immunity.
Robert B. Harris, Ph.D.
Albany (June 30)