Religious Privilege and Religious Freedom and Roughage

Before I go any further, I need to tell you something about myself.  I’m a firm believer that every person should get enough fiber in their diet every day.  Current recommendations are that women under age 50 need about 25 grams per day, and men under age 50 need about 38 grams.  Most Americans get about half that much in the average day.  So, let’s reiterate, I’m a fiber fan.  Go fiber.  Great.

Now let’s talk about you.  Who are you?  Well, in this piece, you are a rhetorical you.  You and I are going to have a little argument about something.  Well, actually, I don’t think we’re really going to argue, I just disagree with something you say quite frequently and I think we need to talk about it.  I’m frankly kind of bugged at the lack of precision that has crept into a pet topic of yours.  You talk about religious freedom a lot and about how your religious freedoms are under attack and how you need to defend your religious freedoms.  I get the war metaphor.  Seriously, I do.  I really liked The Avengers.  I like to be on the right side when good people defend against bad things.  I have to say, though, in this instance, I think you’re overstating your case and in the end it harms the point you’re actually trying to make.  And since I care about you and care about your ideas, I want to take some time to parse through them with you so you can make a stronger argument.

Okay, let’s explore this through two different examples.  The first example is a courthouse.  I’m a lawyer and an American and I have respect for courthouses.  I think that solving our differences through rhetoric rather than violence is a good thing, and I like that there are a lot of public servants who guard law and order in our country and make sure that dangerous people are confined so they don’t hurt me or my family.  I really appreciate that both law and tradition in this country protect me in the courts too.  If I’m being wrongfully accused of something, I’m guaranteed help to defend myself.  One time, I defended a really lovely elderly Russian Jewish couple against their neighbor who had filed criminal charges against them.  Upon investigation it turned out that the neighbor, who was actually a nice lady, was experiencing dementia and was scared that Russians lived next door and accused them of coming into her house and stealing stuff and then replacing it later.  My clients were really scared because they didn’t understand the process, but we helped them through it.  It was a great experience,and we solved the problem.  So back to the religious freedom issue.  Some people feel really strongly that religious symbols should be placed in government buildings or on government property.  As an example, there are several cases of litigation arising over murals of the ten commandments being displayed in courthouses.

When religious symbols like the ten commandments in courthouses are taken down or challenged, you say that your religious freedom has been taken away.  It really upsets you, and you want to “fight” against this encroachment on your freedom.  This is where you lose me.  Do you really have the “freedom” to insist that your favorite message be placed in a prominent place in a government building?  Really?  I’m actually intrigued to hear that because I have a favorite message.  It is as follows:  “Fiber brings peace, fiber brings comfort, fiber brings justice.  Go fiber!”   I know that my message should really be placed everywhere in America, on bus stops and billboards, and grocery store ads.  But there is nowhere that my message is more important than at a courthouse because as age old wisdom says:  “A constipated lawyer is a less effective lawyer.”

You disagree with me?  I thought you would.  I know what  you’re thinking.  You think that I’m making fun of you using vaguely scatalogical humor, and that it is obvious to everyone that a message like the ten commandments is a basic notion of justice, it supports law and order, and that it is a lot more fitting for a courthouse than my irreverent fiber fandom.  You think that religious messages that support traditional notions of public morality are fitting in a place where people need to be reminded about their moral obligations to society.  You think that it is fitting to remind defendants that they have done wrong, and it is fitting to remind their judges what wrong actually is.  Religion is a cornerstone of a just society, and your ten commandments belong in the courthouse, while my fiber message is frivolous and distracting.     Actually, you’re probably right.  But see, in coming to this conclusion that you’re probably right, we’ve made two important assumptions.  The first is that not every person has the right to post whatever message they want prominently in a government building, and the second is that we’ve employed a value judgment that one message is better than the other.  A violation of freedom would be that you had the right to make a certain sort of speech and you were prevented from doing so.  But we’ve agreed that not everyone has that right when it comes to government property.  What you are actually arguing for is the privilege of posting your message because it’s better.  You want to privelege one type of speech over another.  Religious speech is MORE fitting, it’s MORE important, it’s MORE useful, and so you think it ought to be in a government building.  Well, we’ll get to that point in a minute, but let’s call a spade a spade here.  This isn’t about freedom, it is about asserting privilege–it is wanting to enjoy special rights or immunities.

Alright, now before we move on to our second example (remember the first was courthouses–I know this is long….lawyer, remember?) let’s take a minute to talk about why privileging religious speech in a courthouse is probably not a good idea.  I’ll start with a confession.  I’m not a great person.  Oh, I’m fine and all.  Pretty good, pretty decent, generally contribute to society, but I recognize that there are a lot of people out there who are simply better than me.  They are better behaved, and have better intentions in their hearts.  They are less selfish and more prone to service.  Some of them are Mormons, some are Catholics, some are Protestants, some are Hindu, some are Muslims, and some are atheists or agnostics.  It’s just the way it is–I admire these people and know they deserve my respect.  I can imagine how bad it would feel if I went into a courthouse for a trial and I didn’t know what to expect.  I would be scared and looking for reassurance.  If I looked up on the wall and saw a monument to Danu, the Mother of The Tuatha De Danann, with a prayer extolling her justice and mercy it would just make me feel worse.  I would feel like an outsider in a place where my rights were supposed to be equal, and I would doubt the ability of a court to really see me as an individual deserving protection rather than an “other.”  Ought I to force my friends, those friends who are better, more moral and less selfish than me, to feel like “others” in a place where they ought to feel safe and protected?   To bring this to a more realistic example, can you imagine how my Russian Jewish clients would have felt if a cross had been posted above the courtroom door?

Alright, now on to our second example, and I think you’re going to like this one, because we’re going to agree about it.  Imagine that you moved into a community where there were no good public school options, and so you contacted your parish priest to set up a school.  You, the priest, and the other parents in the congregation agreed that in addition to the reading, writing, and arithmetic, you would hire a principal of the school who was a member of your religion to lead the children in prayer and scripture recitation every morning, and close each school day with a homily encouraging them to be better more service-oriented Christians as they left the church school and went out into the community.  Imagine that a non-believer applied for the principal job, and then sued the school when he didn’t get the job.  Now is your religious freedom threatened?  You think so.  I happen to think so, and, as it turns out, nine members of the Supreme Court think so too.  (  Okay, I like it that we agree about this example, although personally I think you can dial back the attack/war/defense rhetoric because when all nine justices agree with you, I don’t think you exactly need to pull out the “threat” metaphors.  (Yes, I’m talking to you Maurine Proctor

Okay, so let’s go back to my original point.  Before our little chat, you really enjoyed painting lots of things with the broad “attack on religious freedom” brush.  I hope we agree now that this is simply not accurate.  Wanting to privilege religious speech is not the same as fending off attacks on religious freedom.  And here’s why you shouldn’t keep shrilly insisting that it is:  you have a good point in the first place–don’t muck it up.  It is important to protect all of our constitutional rights.  That is a common cause that almost every American agrees with.  When you create these scary lists of all the ways that your religious freedoms are under attack when you actually are just saying “people don’t like religion as much as I want them to” and “I think my religious viewpoint should be privileged above yours” you come across as unreasonable.  No outsider is going to listen to you, so all you achieve is just providing a kind of delicious horror to people who already agree with you.  If you are serious about making real arguments about religious freedom, and really protecting the free exercise of religion, then be precise.  Precision matters.  Your cause will be better for it.


  1. I agree with much of what you say but found it extremely patronizing.

  2. A solid, thoughtful post, Karen; I don’t think I disagree with a word of it (though we probably have different views about the policy implications of your words here); it clearly is the case that when those of us bothered by the administration’s HHS mandate protest the president’s decision, we’re not really responding to a violation of “religious freedom,” but rather to an interference in a certain level of religious privilege which certain kinds of churches and religious organizations have heretofore enjoyed. The debate should take place on that level, not a “religious freedom” one (though in our litigious, rights-happy political culture, I think we both know shifting the debate in that way is unlikely, even if there wasn’t strong partisan interests wanting to prevent it).

    Let me throw out an additional complication or two which you don’t mention in this post. The first is democratic government. Gary Gutting recently observed that, in the argument between religious organizations and the president, the rights and responsibilities of a third party–namely, a government which has a duty to craft policy in response to democratically determined legislation–gets left out. He’s right to make that observation, but note that it cuts both ways. What if you had a government which was obliged to respond to clear democratic majorities which wanted your pro-fiber message plastered all over government buildings? (Shades of Mayor Bloomberg and his anti-soft drink crusade in NYC.) What if the voters had made it clear through normal democratic procedures that they want to privilege certain churches, or at least certain religious messages? (Now I’m thinking of the recent referendum against any same-sex marriage or civil union in North Carolina, or maybe even the support of the SLC city council for the church’s creation of a speech-limited civic space right in the middle of Salt Lake City.) No, I am not saying that it is an easy matter of determining what the voters want; figuring out where democracy comes into the formation of policy, and on what level, is a complicated business (for example, regarding the HHS mandate, do we ask what citizens want in response to a question about religious freedom/privilege as framed by the churches themselves, or do we ask what the people actually employed at those religious institutions want in response to the actual proposed policy–or do we do both?). But your whole argument is built from a consideration of individual rights, needs, and perceptions, and to fully consider the issue you need to–or at least I think you ought to, even given that ours is a liberal democracy that include a Bill of Rights–bring the matter of democratic majorities and popular determinations, through government policy, into the discussion.

    Another possible complication is the communitarian one, related to the issue of democratic determinations: namely, to what degree ought one to consider the collective benefits and/or harms which may come from explicitly privileging a particular religious point of view within a society? To say that ours is a liberal democracy, as I acknowledged above, and therefore mustn’t have any sort of privileging going on is, I think, silly; if people have opinions and beliefs, and people form communities, and those communities can govern themselves democratically, then there inevitably will be at least some small level of privileging of certain opinions and beliefs going on. Again, that’s hardly an endorsement of giving certain churches, if the community in question (another complicated question: which one?) supports doing so, the authority to resist and/or to establish any kind of policy position they choose. But to the extent that some might look at the lawsuit brought by Catholic and other organizations against the administration and assume that this is all just a prelude to the arrival of a Christian Taliban/Handmaiden’s Tale world in America, they’re ignoring both the appeal and the legitimacy of communities attempting to establish certain religious baselines–or, in the HHS case, perhaps certain religious exceptions–in a democratic manner. To be sure, given the First Amendment, there is only so far that any communitarian establishment of religious norms or exceptions can go, but neither does that mean that the question of “establishing” certain popularly articulated presumptions through law is entirely out of the question (or so I believe, anyway).

    Sorry for going on for a while, but your post deserved it. I probably won’t be able to respond until tonight, some have at me, anyone.

  3. I didn’t find it patronizing. I feel sometimes it needs to be hammered home a bit that people who try to throw their religious weight around not caring if they step on others in the process are stepping on the toes of other people who do not feel the way they do or believe what they believe but are every bit entitled to a proper environment. People love to talk about religious freedom, but they seem to always miss the part about freedom from religion as well. I think this post illustrated it pretty well. I thought the fiber business was a bit silly, but I think it sheds an important light on this topic. The “War on Christianity” literally makes me gag because it conveniently glosses over the “War due to Christianity”. Live and let live is what I say. I don’t want other people to dictate religion (or lack thereof) to me, and so I surely will not do it to them.

  4. Great post, Karen. Thank you.

  5. Karen H. says:

    RAF, your points are very good, and I think it would be healthy to have a debate about whether or not democratic majorities ought to be able to insist on the privileging of religious messages. However, I think that before we can have that debate, we need to establish some kind of baseline as to what exactly it is that we’re talking about. If I’m reading it correctly, I think my post is a pre-cursor to your point. Before we can debate the efficacy of one policy decision over another, we need to be clear about what exactly that policy decision is. Right now, the waters are so muddy that I don’t know if a real debate on the issue is possible given the rhetorical hyperbole. Also, and I admit this, I very carefully stayed away from the slightly more complicated HHS case to make my point that there IS a difference between freedom and privilege in a clear way. The issue of religious speech in a government building is easy because it is more fraught with emotion than logic.

    At some point, I’d like to have the discussion with you about the communitarian aspects of the question that you raise above. I don’t think we’d come down in exactly the same place, but I’m not sure. I have a strong libertarian streak when it comes to individual rights, and it extends to communitarian decisions to a certain extent. I know I’d learn much from listening to your opinion.

    EOR, yes the fiber analogy was silly. I wanted to stay away from something more complicated where it could be argued that there was merit in posting. Perhaps a message of “Peace be on the country” etc. I think as a baseline it needs to be acknowledged that public (read government owned) space is not a billboard. Something frivolous demonstrates that.

  6. I love it when someone who is smarter and more eloquent than me takes on an issue that I constantly think about. Thank you. (And I am not being snarky, I promise. I am sharing this to FB because I love it so much.)

  7. themormonbrit says:

    RAF, I think this whole issue of whether or not consideration should be given to the majority opinion at the expense of the individual really comes down to which you believe is more important: the community or the individual. It appears that you believe that the most prevalent view of a particular community should be given special privileges and promoted because this is more in line with democracy. While I think that is a perfectly valid point of view, I don’t happen to share it. I think that any framework which allows the majority to exercise tyrrany over the minority is unjust, no matter how democratic it may be. I think there must be limits put in place to ensure that people’s liberties, freedoms and individual privileges are not encroached upon simply because they are in the minority.

  8. While I don’t disagree with your points and I have no problem even as a religious person with the Ten Commandments and other religious displays being kept out of government buildings, I think the whole fight over religious displays in government buildings is ridiculous. Speaking of the Ten Commandments–those were basically law that ruled the ancient world for a long period of time and to me, seeing those in government buildings is more a throwback to history than supporting one religion over another. I realize many other people probably don’t see things the way I do, but I have no problem with any religious displays from any religion being in a government building. To me, a simple religious display of any religion, if it indicates justice and law, seems harmless and no way indicative of government endorsing one religion over another.

  9. Excellent points, Karen. Reminds me of a time my husband and I were looking at various editions of _The Merchant of Venice_ and found one which had been performed in Nazi Germany. Chilling.

  10. Bethany says:

    This is always a tricky topic that’s why when our founding fathers set up our government they gave a separation of church and state. It was a progressive idea and brilliantly thought out. They understood the issues of having one religion control every aspect of someone’s lives from history and executing justice from that belief. We see those problems brought up in countries whose governments are based solely on religion.

    Our country is probably the only one that truly gives every religion a chance to exist, live side by side and not have religious civil wars break out amongst those who don’t agree. Our religious freedoms need to be cherished in a time of mass religious genocides and civil wars in other countries.

    As you brought up, religion is a cornerstone of our society regardless of what those who don’t want religion in government buildings and who decides what gets put up on buildings gets tricky. Our government is built upon justice which does include religious undertones whether we like it or not. Religious objects included on buildings and other places are because of that. It’s not to exclude one person/group from another, it’s an expression/representation of those undertones and the justices they represent. People who don’t understand that are the ones that protest the most. No one group in America has more rights than another in a court of law despite what is depicted on a government building and that’s because of separation of church and state. Religion will always be current undertones in any government, even ours.

  11. Karen, this was great! I’m going to start a movement to have this put up in every courthouse in the country!

  12. Brian F. says:

    Hi, I have a point of clarification. Are you limiting freedom of religion to just freedom of religious expression? I’m not trying to troll or thread jack. To me religious freedom is more than just expression, it includes freedom of practice, conscience, assembly, etc.
    I agree that having the 10 Commandments up or not up in a government building does not really impact freedom of religion.
    This is a pretty good piece, I do agree that some issues which are labeled as freedom of religion issues are really other freedom issues for example expression or assembly or press or what have you.

  13. Excellent post, Karen – and the fiber example, though silly, is a very good one, imo. There are lots of things that actually do cause argument and strife in our society that are no less silly, frankly, and some of them are religious in nature.

    I’m not a lawyer, but I had a Constitutional Law professor in college (not at BYU, just to be clear) who started a class discussion one day asking point blank how many of the students supported laws that criminalize polygamy. Almost everyone raised their hands. He then asked how many of the students supported enforcement of anti-sodomy laws and laws that criminalize adultery. Almost nobody raised their hands. The discussion that followed was fascinating – and it focused on the same basic issues of religious freedom and religious privilege you articulate in this post. I know it made many of the students in the class re-evaluate some of the things they had assumed for years – and this was at a bastion of liberal arts education where the vast majority of students were far from religiously conservative.

    I wish most of my Mormon friends and co-congregants had been able to sit in on that class. It’s a discussion that needs to occur, imo – and it needs to occur for us in the LDS Church specifically because of the foundational principles upon which our church was established and that drove the compilation of our Articles of Faith. I love this church, but one of the things that hurts my heart the most is that, in some cases, we have become collectively what we fought so hard over the first 70-100 years of our existence.

  14. Brilliant, Karen. Just the right strike and balance with humor and precision to make your point eloquently.

  15. So… This is my field, so I guess I ought to comment. Full disclosure: I just finished a fellowship at the Becket Fund, which won the Hosanna-Tabor case in the Supreme Court and has filed several lawsuits challenging the HHS contraception mandate. I don’t want to spend the time to get into the nitty-gritty, so I’ll just outline quickly what I think the conversation so far is missing.

    First, on the Ten Commandments display side, I have some sympathy with you, and I’m still working out what I think about the Establishment Clause. But as Russell points out, the government sends out messages like “eat fiber” all the time, every day (in fact, here’s a bunch of government “eat fiber” messages for you: It’s constantly sponsoring parades, monuments, museums, public relations campaigns, school curricula, etc., expressing opinions on nearly every topic under the sun. Courthouses themselves tend to be adorned with all sorts of messages about the nature and history of law and how it ought to be administered, many of which could be controversial if anyone paid serious attention to them. Yet for some reason, sending the message that our ideals of justice relate in some way to the Ten Commandments is largely forbidden.

    Now, that may be the right outcome–like I said, I’m still forming my opinions on the Establishment Clause–but I think it shows that your “religious privilege” argument is assuming a neutral baseline that doesn’t really exist. If your baseline is “people don’t have any right for the government to express their preferred messages in courthouses,” then yes, you could call it religious privilege when the government puts up Ten Commandments displays. But if your baseline is “people can lobby to have the government express their views”–which is also true–then forbidding the government from expressing religious views looks like discrimination against religious belief. Certainly many believers have interpreted it that way, and I think it’s fair to say that some of the people who sue over Ten Commandments displays actually intend it that way (e.g. the Freedom from Religion Foundation).

    The reason I think people see a religious liberty issue here is that government speech often carries a lot of authority and is pretty hard to avoid, especially for schoolchildren. So, for example, when religious believers see the government teaching their children all sorts of non-religious messages contrary to their religious beliefs but find their own ability to express religious messages in public restricted by the Establishment Clause, they feel like the government has an agenda to marginalize their religion. Why should religion’s critics be able to use the government as their megaphone but not believers? More basically, if government never talks about religion, it risks sending the message that religion doesn’t matter–which is in itself a religious message, and one that will alienate many citizens. I doubt there’s actually any neutral ground to be had on this issue. If you let the government express religious views, minority faiths will have reason to feel marginalized; if you don’t, majority faiths will. But whatever the right answer is, labeling one side “privilege” isn’t going to help you find it.

    Second, on Hosanna-Tabor (the religious teacher case you mentioned), I’m quite happy that all nine Justices took my firm’s side on the issue, and I hope that precedent sticks for a long, long time. But calling the case an “attack on religious freedom” was justified, even though the attack failed. Contrary to precedent in every circuit, the Justice Department took the incredible position that religious groups have no Free Exercise right to choose their own clergy. I was shocked. Scalia was shocked. Heck, *Kagan* was shocked. It’s really quite remarkable, and quite horrifying, even if churches managed to find some limited protection under Free Speech and the Freedom of Association doctrines.

    That the Justice Department took that position speaks volumes about the Obama administration’s attitude toward religious liberty, especially coming as it did around the time that HHS announced its contraception mandate without even getting legal opinions on whether its religious exemption was broad enough to satisfy the Free Exercise Clause and the Religious Freedom Restoration Act. The Republicans’ “war on religion” rhetoric is obnoxious, overblown, and counterproductive–Obama himself is very religious, and he’s done right by religion on some issues–but his administration’s handling of Hosanna-Tabor and the HHS mandate has definitely been troubling.

    Okay, back to work…

  16. Karen H. says:

    But Bethany, the ten commandments are not exactly a match with our penal code are they? Sure, we can all agree on the “not killing” and “not stealing” aspects, but criminalizing covetousness and a failure to honor parents would be a disaster. Perhaps a more apropos representation of the history of legal provisions would be to mount a replica of Hammurabi’s code in the courthouse. Personally I think that would be cool, but probably a bit silly as well. To be even more exact, maybe we should publish a copy of the current penal code in every court house, or if we want to make it historical, examples of criminal cases from the 1770s. See, it just gets a little imprecise with a blanket statement of how our current laws have religious undertones. Yes and no. Which undertones specifically do you mean, and why of all the undertones should they be displayed? Probably because you think they’re the most important ones. And there we get back to privileging religious speech. (Also, to be perfectly honest, I’ve never been convinced with the argument that the ten commandments were displayed for wholly secular purposes. That sounds like the kind of thing you say when you get caught doing something you probably shouldn’t.)

    Brian F., not a threadjack at all. I used an example of expression here in discussing the privilege issue, but it could be applied to other rights as well. I do want to be clear, though, that I don’t think there is no such thing as religious freedom, and that every argument made that deals with it is specious. See my private school example above which I think was a clear challenge to religious freedom. I feel, to a certain extent that these two are opposite ends of a spectrum with fairly clear implications. There are about a million examples of questions in the middle of these two that have every shade of gray possible. I don’t know how I feel about every one of them, but I think looking at the issue through a lens of freedom vs. privilege is important.

  17. I think it’s a bit silly when people complain that they can’t have formal, teacher-led prayer in schools (ignoring the fact that students aren’t prohibited from praying by themselves or in groups), and yet people ignore the fact that the government doesn’t protect religious practices, done by private citizens, as much as it should.

    There have been a number of Supreme Court decisions that diminish actual religious freedoms–from decisions aimed at polygamy to decisions aimed at peyote. Religious practices that I believe should be protected by the Constitution.

  18. Thank you #13. I do so agree with your thoughts.

  19. I agree whole-heartedly with Ray (13) as well. We are kin from another life or something. :)

    Tim (17) you’re okay with your child being led in prayer by a Satanist in their school? Satanism is a religion, and why should said teacher not be granted that same right if other teachers are allowed to do it? It is better to leave it all alone, and if a child wants to pray he can pray quietly to himself. If you want your child led in prayer there are many wonderful private schools available–I specifically recommend the education at Catholic Schools. Public Schools paid for with public funds are there for the needs of the public which includes everyone. I am a religious person, and I would even be uncomfortable if a Christian–hell, even a fellow Mormon–led my child’s class in prayer at a Public School.

  20. wreddyornot says:

    Thanks, Karen, for this posting and your analysis. It is nicely done.

    Doesn’t the issue somewhat go to permanence, the taking over of space for the long haul in public places, whether it’s a plaque of some platitude on the wall, a statue of some character from the present or past displayed there, the constant, repetitive announcement of a dogma over a sound system without cessation?

    Doesn’t the Constitution permit a person to speak the Ten Commandments or to display a sign or a plaque of a religious nature in a public place, like a courthouse, only on a regulated, transitory basis? What might be permitted generally on the grounds in front of the building, or in the foyer, for instance, would not be permitted at all in a courtroom or a laboratory. When it pertains to religion, there is not a permanent, public place of preference.

    What happens, of course, is that there is almost a constant competition by various groups to thwart the regulation and transitory bases of such speech. Sometimes it succeeds and needs to be purged. That’s why it’s good to eat fiber.

  21. Raymond says:

    “I think it’s a bit silly when people complain that they can’t have formal, teacher-led prayer in schools (ignoring the fact that students aren’t prohibited from praying by themselves or in groups) . . .”
    You lost me here, Tim. The fact that students can pray by themselves or in groups is good evidence that formal, teacher-led prayers (i.e., government endorsed prayers) are unnecessary. Also, the former is an example of the free practice of religion (protected by the Constitution). The latter is a good example of the government endorsing a certain religious practice (prohibited by the Constitution).

  22. The whole jurisprudence of the Establishment Clause has gone out of kilter because the rulings that were based on activities in an elementary school classroom have been extended to all public and governmental functions, while omitting the important link in the chain of reasoning in the original school cases that young children are especially susceptible to propaganda from their teachers and therefore extra caution needs to be exercised in teaching them religious ideas. This special vulnerability of children is not present in adults, and it is ridiculous to claim that an adult atheist is vulnerable to having his religious beliefs altered by the mere presence of the Ten Commandments in a government building or on its grounds.

    Back before the new Matheson Courthouse was built the Utah Supreme Court convened in the east wing of the state capitol, below a mural depicting Brigham Young and the Mormon pioneers. Do you really think that someone who was not a Mormon should think that this mural communicated a prejudice against non-Mormons or a determination to enforce Mormon doctrine as a legal standard? The proper answer is “Grow up”. We see all sorts of messages around us all the time. The essence if free speech and press is that we adults are trusted to make prudential judgments about how much significance we accord to each of them. The mere presence of a symbol is not assumed to influence us against our will, as if we were under some kind of post-hypnotic suggestion. There are all sorts of symbols that have multiple meanings. The ubiquitous beehive is on the Utah seal and flag and all sorts of government decoration and stationary in Utah, even though its origin is in the State of Deseret proposal of the 1850s and it is also a Mormon symbol that appears on the doorknobs of the Salt Lake Temple and the lectern that frames the speakers at General Conference.

    If we have to neuter our public buildings so the squishy minds of atheists can preserve their mindset, we will also have to change the names of cities all over America that derive from religious persons or concepts, including many of the Spanish names like San Francisco, Los Angeles, San Diego and Sacramento, in addition to St, George, Nephi, Lehi, Manti, and Bountiful.

    No one has a right to demand that the Ten Commandments be installed on a public building, but if the public committee responsible for its design include it as a reference to the historical role they have had in our Western culture in defining the very concept of law and justice, there is nothing wrong with that. Inside the south wall of the Lincoln Memorial is inscribed the full text of the Second Inaugural Address, in which Lincoln speajs of the Civil War as God’s punishment on the whole nation for allowing the injustice of slavery. On the opposite wall is the Gettysburg Address, in which Lincoln hoped that “this nation, under God, shall have a new birth of freedom”, the actual origin of the controversial phrase used in the pledge of allegiance. These expressions are part of our heritage as Americans, and the refetences to deity cannot be temoved from them without destroying their intended meaning. Let us all grow up and keep things in proportion.

  23. wreddyornot says:

    “This special vulnerability of children is not present in adults, and it is ridiculous to claim that an adult atheist is vulnerable to having his religious beliefs altered by the mere presence of the Ten Commandments in a government building or on its grounds.”

    I doubt that is the argument an adult atheist would make. The presence wouldn’t alter them. Neither would the absence. It might offend them. If all the preferential instances you named were removed, most adults would still know where to find them: in history books and the like. It’s not all about vulnerabilities at all. It’s about preferance, giving certain religion a preeminence. It’s about basic respect for others, whether they are believers or not. While I’m not advocating for the removal of any of the public displays you mentioned, I am sensitive and hope I have deference and respect for others’ Constitutional rights. I would certainly hope they would have similar respect for me.

  24. EOR and Raymond–

    Like I said, I think it’s silly when people complain about not having school-sponsored prayer. It’s not the fact that public schools can’t have school-sponsored prayers that bothers me; it’s the fact that people complain about it–and ignore the fact that there are actual real government threats to religious practices–that bothers me.

  25. Tim (24) such as…? If lack of led prayer in school isn’t what bothers you if you could be so kind as to specifically mention something I would appreciate the perspective on your views.

  26. Bradley says:

    The left side of your legal mind did a good job here. Since my mind lives in hippy dippy land, let’s see if my translation is correct. Where’s the love, right? After tens of thousands of years of scarcity, where we had to fight for every little scrap, it’s hard to let go of our militant urges. There’s still an Us vs Them mentality that we have to move past, so that everything doesn’t have to be a fight. It’s not worth it. If someone sues thee at thy cloak, let him have thy iPod also.

    The best example in recent memory is Proposition 8. It was a big deal in my ward, people going into battle over ideology. And what effect did it have other than polarization? If it ain’t love, it ain’t cool.

  27. Lamplighter says:

    Where and when did public prayer in school happen? I started school in 1953 and can never remember praying in school. Was that because I grew up in Godless California?
    Other than that, I thought the post was wonderful and as for silly, sometimes silly makes more sense than serious, we get too personally involved in serious.

  28. EOR–see Employment Division v. Smith (a Supreme Court decision that placed modern drug law that made using peyote illegal above the right to partake in Peyote as part of a sacred religious experience of a religion). I think criminalization of polygamy could be filed in the same category. Laws prohibit some religious practices in the private sphere, despite the fact that everyone involved in the religious practice is a fully consenting adult and outside parties aren’t being harmed.

    Interestingly enough, the majority of the liberals on the Supreme Court at the time of Employment Division supported religious freedoms and opposed the decision. The conservatives all voted on restricting religious freedoms. And the LDS church? Elder Oak’s spoken quite a bit about the decision, and he strongly disagrees with it.

  29. Raymond says:

    Tim (24)-
    I see. We are in agreement. I think I just misread your first comment. My bad. Thanks.

  30. I think the best example is that the people who scream the loudest about keeping the Ten Commandments on the walls of the courthouses are the same people who would scream the loudest if someone tried to put anything reflecting Islamic law next to them – or, in many cases, excerpts dealing with law and government from the Doctrine & Covenants or the Book of Mormon.

    When it gets right down to it, the defense always is, “We are a Christian nation, founded on Christian ideals, and removing the Ten Commandments from the courthouses is an attack on us – poor, persecuted Christians.” As the OP states, that is an argument of privilege, not an argument of freedom.

    It’s also hogwash. Neutrality / equality isn’t an attack, and Protestants and evangelicals in this country complaining about being persecuted in the USA is the height of hypocrisy. Payback is a b**** – but this isn’t even payback. At worst, it’s evening the playing field – and that (equality under the law) is the foundation on which our legal system is supposed to be founded. Losing privilege to be equal, when that is the articulated ideal, is not the same as being attacked.

  31. Karen H. says:

    To all the commenters, I want to reiterate, my point in the original post was not to advocate the prohibition of all religious speech. It was to draw the distinction between the concept of freedom of religion and privileging certain religious messages. The issue of religious speech is an interesting and many layered area, but I think if we approach the topic with a “freedom under attack” mentality, we’re missing the important nuance (and preventing communication.) (I did also put a plug in there for tolerance towards minority views…which I think is an important reminder in the midst of this type of conversation.)

    Alan, thanks for stopping by. Your fellowship sounds like it was fascinating. Yes, I think you pinpointed the way I would respond to your argument. It is an establishment clause issue. There is (thank the lords of the harvest) no prohibition against the government promoting fiber. However, they are dealing with the consequences of a specific constitutional mandate (or rather prohibition) when it comes to religious establishment. Your “forbidding the government from expressing religious views looks like discrimination against religious belief” argument isn’t too convincing to me because there is that specific constitutional consequence.

    Tim, I agree with you about prayer in school. Never have I prayed more fervently or sincerely than when I was in school. It went something like this: “Please God, help me remember the quadratic equation. Please. Pleasepleaseplease.”

    Wreddyornot, it has been such a long time since I looked at specific lines of argument within the relevant case law that I feel totally unqualified to comment on that specific issue. Maybe Alan has looked at that line of cases more recently. Alan?

    Coltakashi, I will take your very kind and repeated exhortations to grow up as a reference to my youthful visage. To which I say, Thank you sir!

    Bradley, there is always love at BCC. It is usually served with a healthy side order of snark that provides a pleasing piquant tenor to the meal.

  32. I just have one quick question – what is the reason for removing religion-inflected language from governmental discourse? While I sympathize with those that might be alienated by its inclusion, I don’t find arguments based on such a psychological basis too convincing. This is especially true when such arguments based upon a facet of identity and subcommunity – for example, do we post the Jewish Ten Commandments? the Catholic ones? the Protestant ones? Beyond that, which translation do we use? Do we alienate those that such the KJV? the Douay-Rheims? the NIV? the New World Translation of the Holy Scriptures?

    It becomes especially troublesome when extended to public schools and children – are we to base jurisprudence on whether children feel marginalized?

  33. Also, does “establishment” mean “perceived government endorsement of religion” or “government financial support for a specific religious body”?

  34. Well… Karen, you’re begging the question. We’re arguing here about what the Establishment Clause means, which has changed dramatically over time. (It didn’t prohibit Ten Commandments displays for the first 150 years after it was ratified, for example.) You can’t say, “Prohibiting religious speech isn’t discrimination because the Establishment Clause requires it” when the whole issue is whether and why the Establishment Clause requires it.

    But ignoring that, even if the Establishment Clause does require it (as it sometimes but not always does under present case law), that’s hardly evidence that it’s not discriminatory. The Constitution may require discriminatory things–see, e.g., the three-fifths compromise. Of course, when the Constitution isn’t perfectly clear, that an interpretation is discriminatory might be a good reason not to adopt it.

    On wreddyornot’s question (also responding to haycockm), I think s/he’s right, though I also haven’t really spent a ton of time on the Establishment Clause. Government religious speech cases play out differently depending on the context, and the rules are stricter for schools, but the basic theory behind prohibiting government religious speech is some combination of the following: 1) under the Lemon test, all government action must have a secular purpose, and religious speech presumably does not, and 2) under Justice O’Connor’s endorsement test, government religious speech is problematic because it endorses religion and thereby violates government’s duty of religious neutrality. Adults who challenge government religious speech in court generally do it as “offended observers,” whose injury consists of being implicitly told that they’re not full members of the political community because the government endorses religious beliefs that they do not share.

    As to why the Establishment Clause requires neutrality (or what “neutrality” even means), the Court tends not to have much of value to say. As I said before, I’m skeptical whether neutrality is actually possible, and likewise skeptical that it can actually explain the Supreme Court’s present religion jurisprudence, but interpreted right (see Doug Laycock’s work on substantive neutrality), it could be a reasonably good approach to the religion clauses.

  35. haycockm, on your second question, well, good question. :)

  36. As a lawyer who always has to make a trip to the restroom prior to court, I’d actually be more effective if I was constipated. Perhaps I should start my day with fiber and not oatmeal washed down with caffeinated beverages. On the rest of the post, the only point I have to make is that there is a difference between “freedom to” and “freedom from.” Driving away, now.

  37. StillConfused says:

    Yes, we definitely need more fiber in our diets.

  38. Meridian Magazine is like the bizarro Mos Eisley of the Mormon writing community: you will never find a more saccharine hive of scum and villainy.

  39. Bob- Thanks for bringing up what seems to me to be the salient point, but that seems to get left out. Freedom does not have a uniform definition, and trying to apply it is about as tricky as making Thanksgiving Dinner for our extended family. To make the meal something everyone can eat:
    No gluten (2 with Celiac)
    No onions (allergy)
    No legumes (allergy)
    No chocolate (allergy)
    No bananas (allergy)
    No stone fruit (allergy)
    No peanuts (major allergy)
    No wheat (allergy but not as serious as celiac)

    Now, you could say that we have a holiday on which everyone has some or all of their “rights” to certain foods taken away. Or, you could say that everyone has a right to be together as a family with no one going to the hospital because someone asserted that there was a war being waged on thanksgiving and if it isn’t a thanksgiving out of Martha Stewart, then everyone has lost their rights to what they want.

    So, do we keep the collective (majority) right to make everything with the same recipes my mom used when we were kids? Or do we go with accomadating all of the allergies/sensitivities and work together to have a slightly less traditional (majority) meal in favor of the time consuming and complicated dinner that took over a month to plan, as we tried out recipes several ways to see what cooked okay, tasted acceptable and kept our slightly crazy group (a lot of small minorities) able to sit down together at a meal?

    I see most rights issues as messy, complicated, time consuming and thought provoking, which requires a lot of practice to get right. In the end we made the complicated meal because it was the right thing to do, even if a little over half the people there had no allergies at all.

  40. Karen H. says:

    But Alan, for argument’s sake, let’s grant that there may be some wiggle room in the establishment clause for government sponsorship of some kind of religious speech or action. (And this is just for argument’s sake…) Why would you want the government to do that? Coming from a minority religious tradition, I don’t want the government mucking about in my spiritual life. I certainly don’t want them elevating or privileging someone else’s religion over mine. I don’t want them making value judgments about my religion, or even clumsily promoting it. Further, in the federal government there are basically two kinds of workers, career bureaucrats whose focus is a very narrow expertise in making the proverbial railroads run on time and politicians or political appointees. Who is qualified there to speak for me or my spiritual life? A Congressman or presidential candidate who by the very nature of his/her profession must make concessions to what is the perceived majority and that majority’s changing preferences? Or a technocrat? Why? If I want a religious technocrat, I’ll go to the church of my choice that breeds the specific kind of spiritual advisor that I want. I really think that separation is BETTER for both religion and government.

    Julia, as a cook, I very much like your analogy.

  41. Bethany says:


    I’m not a lawyer. I don’t speak legalize and I’m not great at expressing how I feel. The religious undertones I was referring to was Christianity. While there isn’t a specific law on adultery or honoring your parents, there are laws in place that refer to it. There are divorce laws for when adultery happens. There are abuse laws to protect the elderly and for those that can’t protect themselves.

    With regards to something like a monument with the ten commandments in a courthouse, if you take the monument away, it’s still a courthouse. No one’s religious freedoms are being challenged or taken away with the removal of it, even though people may cry that it is. When it comes down to it, it’s a decoration.

    However; all religion aside, let’s say I like the monument with the ten commandments. It’s ornately and beautifully done. It enhances and compliments the building. It was hand crafted and done with care by an artisan of the time. It was added when the building was built 100 years ago and has historical value. It has sat there without issues until one person decides he doesn’t feel it belongs there for whatever reasons. He goes to court demanding that it be removed and wins. A historical piece is destroyed because one person doesn’t think it belongs there. Is that fair to the rest of us that have enjoyed the monument’s history for the past 100 years? It’s not about religion when put that way, it’s about that one person (or a small group) can destroy what the rest of us feels has value of some kind, either from a religious or a historical point of view. It sends a message that the majority of people have no say in what is a democratic society and that the courts pander to those who whine “it offends me” instead. That’s what puts people up in arms and angers them even under the misunderstanding of religious freedom.

    I don’t know if I make any sense or if what I say has legal value. I get what you are saying even if I’ve worded things wrong. You can’t please everyone but the “all or nothing” isn’t fair to either side as well.

  42. Karen,

    As probably comes as no surprise, I’m rather sympathetic to how Alan has laid out some of the issues here.

    Let’s grant that there may be some wiggle room in the establishment clause for government sponsorship of some kind of religious speech or action….Why would you want the government to do that?

    Maybe because I belong to a majority religion, and as part of that majority I’m bothered that I can’t democratically organize to promote what I believe and the majority of my fellow community-members believe to be both good for society as well as the truth when it comes to any number of provisions or messages which could be established without running afoul of basic civil liberties. Your response plays the Mormon card, speaking of the harm which you could see coming from such messages and provisions that would presumably democratically exclude minorities like Mormons. But would they? Always? Would they in Idaho Falls or Evanston, Wyoming? Maybe they would–and certainly, if we were talking about the sort of thing which would get in the way of some of the accepted fundamentals of our liberal order (in other words, forms of establishment which would prevent people from speaking their mind, from organizing themselves together, from being secure in their property, etc.), then I’d completely agree with you. But I’m not convinced by the libertarian tendency to see every curtailment of individual freedom as equal to any and all curtailments of individual freedom; I think there can be (constantly re-)negotiated settlements over what and how democratic majorities can express themselves through the governments of their communities. I’m not convinced that it is obviously true that the Mormon in Wichita, KS, the Southern Baptist in San Francisco, the orthodox Jew in Fargo, ND, the Rastrafarian in Odessa, TX, or the Muslim in Bangor, ME, is automatically going to be facing serious oppression or even major discomfort should the majorities around them choose to democratically express the privilege of their numbers when it comes to establishing rules for charter schools, or organizing a holiday parade, etc.

  43. “It sends a message that the majority of people have no say in what is a democratic society and that the courts pander to those who whine “it offends me” instead”

    How is that different from any other large social body? Not that I think the courts would be pandering in this case, but I’m curious as to how you see this sort of act as being different from other social dynamics.

    It isn’t hard to see how laws making the closing of businesses on Sundays in majority Christian areas will add extra financial and social burdens to religious Jews or Muslims. One’s man’s inconsequential nuisance is another man’s loss of a day’s work. Operating (as we generally do) from the passing privileged, it is really hard for Mormons to know how unfair these sorts of laws are until they are directed at us. In the meantime, we are left with the default of taking the oppressed’s word that they are actually being oppressed.

  44. John,

    It isn’t hard to see how laws making the closing of businesses on Sundays in majority Christian areas will add extra financial and social burdens to religious Jews or Muslims. One’s man’s inconsequential nuisance is another man’s loss of a day’s work.

    Agreed, and we can see the arguments over this and related issues come out in Sherbert v. Verner and some other cases–what sort of allowances need to be made to prevent democratically determined rules and laws from becoming an undue burden upon believers who are in a minority position vis-a-vis those rules and laws? But note that those arguments do not, in principle, invalidate any attempt to (legitimately, democratically) erect such rules and laws; they simply help stipulate some of the boundaries within which such arguments are to be conducted within our liberal order. (Also note how this argument can cut both ways, working against majority norms as well as minority ones, as Scalia’s stupid gutting of the Sherbert test through Employment Division v. Smith has demonstrated.)

    In the meantime, we are left with the default of taking the oppressed’s word that they are actually being oppressed.

    Really? We do? I thought insisting upon reasons and clarity of language, rather than simply taking all claims of “religious discrimination” at face value, was part of what Karen’s original post was all about. I presume you don’t think we should just the word of Catholics/Mormons/evangelicals that the HHS is oppressing them seriously, simply because they say so, do you?

  45. I just wanted to quibble with ” I think you can dial back the attack/war/defense rhetoric because when all nine justices agree with you, I don’t think you exactly need to pull out the “threat” metaphors. ”

    If a case made it to the supreme court, a lot of money, and a lot of time was taken to get there. Further, I’d think a lot of people must not agree with you including some lower courts.

  46. Bethany (41) arguments to keep that 10 Commandments monument in place would be both more believable and more effective if framed in the context of historical value and preservation. If their is anything filthy hippy leftists like myself appreciate it is the charm and craftsmanship of historic monuments. However, usually such arguments are framed in terms of “the World”, “Christian Persecution” or calling people who disagree “Satan” and chasing after them with proverbial pitchforks.

  47. Of course not, Russell, but I also think majority determined proofs of harm to minorities have a bad history. The truth is, of course, murkier than either of our generalizations. We should ask people to reasonably demonstrate harm done, but I think we have to err on the side of the aggrieved.

  48. I believe that for every practice or attitude there exists, there is some religion that requires or prohibits it. To try and legislate something on which no religion has a directive is impossible. It is also impossible to get people to make decisions or vote while ignoring the religion (or lack thereof) that they follow. It is part of who they are. It would be like trying to ask an American (citizen of the United States) to vote as if they were not a an American.

    Government buildings should be entities unto themselves. While the laws were made by many religious people, the laws themselves should be able to stand alone. Since it is impractical to list all of the current laws on a single wall (or even in a single room) for all to see, we should be aiming for more austere settings in our courthouses. History has a place in law, but only when that historical law has not been superceeded by a more current law. You wouldn’t want a judge to reconsider her decision to use the death penalty just because she had a big sign over her head saying “Thou shalt not kill” any more than for a sign saying “fiber will help you relax” (meaning relaxed people would prefer leniency).

    We can’t keep historical settings just for the sake of history. We are a changing people and a changing Country. We use historical precedents, but also have the ability to go against them and create a new precedent.

  49. In some ways I think this has turned into a thread that those of us who are not legal scholars are a little mystified by. The original post was fairly straightforward, opening the discussion to include a broad audience and talk about the rhetoric of “a war on (fill in the blank) freedom” creating divisions that aren’t really necessary, and even get in the way of broader understanding between groups who are increasingly polarized by propaganda that uses “war” in a way that is not justified by the circumstances.

    I am sure all the legal cases and arguments would make a fascinating law review journal, but I don’t really see how they relate to creating a toned down rhetoric that encourages discussion instead of an increasingly polarized community. I really do think that intelligent people can discuss this issue without using complex legal language or over-simplified appeals to the gut level reactions engendered by the over use of the language of war and conflict.

    Maybe I am missing too much of the legal language to understand the significance of the minutia, but I think that anytime a topic that is being framed into a debate, by any particular side, as a matter of a war against (place the name of your favorite right here), we lose the ability to discuss that topic in a reasoned, adult manner.

    In this case, both sides have legitimate claims on the law and constitution, but the inflammatory language seems to turn this either into a screaming match, or a match of legalized propaganda intended to cut out those who might want to discuss the topic with the goal of having all sides of a debate validated, even if those sides never come to full agreement. I am sure someone(s) will point out how wrong I am to think that this is a discussion that can be had without lawyers and politicians who sound the war cry. I just wish that instead we could work towards making public places inviting to all, even when it is messy, complicated and requires multiple people to give a little to gain a lot for society as a whole.

    Going back to my non-legal example of cooking for my family with a variety of needs (some might see this as minorities demanding rights that are a burden to the majority) maybe we need to take a step back from legal language, political language and especially language that seeks to splinter and divide us.

    It would be easy to see some of my family advocate for all gluten to be removed from all of our diets, as a show of support to the group of family members struggling with the very real consequences of celiac on some of our family members. Or a group could decide that since one person has three of the allergies that we simply exclude them from dinner, and any conversations about it because their bias is so far out of the “mainstream” of our family that we really don’t need to take him into account.

    Another group could accuse me of creating the biggest problem, since I am the one with an onion allergy, because most store bought soups, sauces, bouillon and canned vegetable products contain onions or onion powder in some form. I add greatly to the cost of the meal since we have to find a turkey that hasn’t been “plumped” with turkey stock (the turkey stock used by all of the commercially processed turkeys have onion powder or onions in the recipe) and a turkey from either a local farmer or a specialized store that sells turkeys that haven’t been “plumped” is much more expensive than the turkeys you can get for free if you spend $150 on groceries at one of the local stores. My onion allergy means that we make stuffing from scratch which takes extra time and energy. We can’t “cheat” by getting fully prepared Thanksgiving dinners from a local restaurant, catering business or grocery store.

    No matter how you look at it, Thanksgiving at our house would be a lot easier if we just left out one or two people and went with what most of the family can eat. We don’t leave anyone out because we love and respect each other, and have created in our family the “right” to enjoy a meal free of things we are allergic to. I am sure we could make up a complicated set of rules to rank and categorize each allergy and give it “special protection” or accuse me of making war on Thanksgiving by insisting that I am not going to consume something that is harmful to me.

    I am not at war with anyone (except maybe onions, which I still crave from time to time) simply because I have a different view on the use of onions in food. Most of the time I don’t mind when others use onions in their cooking, or when they eat a meal with onions when I am there. However, when someone uses my kitchen equipment in cutting an onion, cutting the ends of green onions or chives with the kitchen scissors or preparing a recipe with onions in it, and doesn’t properly wash or clean the items they have used, I do think that I have a right to be upset and feel unappreciated. It isn’t that I am at war, nor do I need a Supreme Court ruling to tell me it is wrong to know someone has an allergy, I should not to feed them that thing. I feel the additional obligation to do everything I can to both keep that ingredient from a recipe when they will be eating it, and to still make sure that person is comfortable eating in my home.

    I see public places (I am only talking in the US since other countries have different law structures regarding rights, but I do hope that as church members we would see this as a world wide part of our faith) as the “home” of our government. I think that each person has a right to some space in that home, by virtue of their citizenship and humanity, and I believe that everyone has a right to have their personal beliefs honored in some ways, even if it is just that we don’t force them to check their needs at the door and then ask them to belly up a the table that has nothing on it that they can eat.

  50. Every courtroom in every courthouse should have a McNaughton painting.

  51. Julia (49) we eat baked ziti on Thanksgiving. Saves a lot of time, problems, headaches, etc… If people want a turkey dinner with all the trimmings they can go eat it at their own damn house. :)

    gst (50) BCoTW. Hands down.

  52. gst – Maybe I can commission one of his paintings with the constitution on an onion which is mutilated by me. You can tell I am the one who desecrated the onion constitution because as I walk away with the bloody onion juice dripping off a gigantic knife I am holding, that is longer than my arm, I have a sinister grin/snarl on my face, proving that I am pure evil.

    (Okay, my inner snark came out. I am putting her back to bed now.)

  53. EOR – I am not sure if you are dismissing my entire post because my family doesn’t share your family’s ziti tradition, or you are saying people with minority opinions and needs should just shut up and do things your way? Or maybe that it is somehow a worthless family endeavor, that we all try to work together to make a holiday meal that is meaningful and respectful to all involved?

    I certainly don’t go to the trouble to make a full turkey dinner when it is just my family at home, but when my mother hosts a meal, and invites all of her children, stepchildren and grandkids to come, I am certainly not going to tell her that your tradition is better than hers. Actually, your tradition of ziti (and I assume some sort of bread and/or vegetable) would still hit the gluten, flour & onion allergies, and that is just a “first blush” thought about the complications.

    Whichever way I interpret your comment (#51) I certainly don’t think putting a :) at the end somehow makes it less offensive.

  54. Julia (53) I am unsure why you were offended by my comment, but it is a shame that you were. In written communication there is no tone to be discerned, so the smiley face was an indicator of what I would have done in person–smiled. There was no deep hidden message in my baked ziti anecdote. My point was that instead of trying to accommodate the needs of everyone’s turkey and trimmings yes and no we scrap it in favor of something that everyone can eat. I never said baked ziti was gluten free, or onion free, or flour free–I was not even suggesting that your family eat baked ziti, or for that matter that your family scrap your deeply held turkey traditions. I was unaware that unless I was talking directly about what you were talking about (and your personal experiences of which it would be impossible for me to have any knowledge) there was no room for commiseration in the fact that more than one family in the United States has several members who have dietary restrictions and/or certain food stuffs that cannot be eaten on a largely food-based holiday. It is a mistake that I will not make again.

  55. EOR,

    Sorry if my sleep deprived mind convoluted your comment. I promise to reread everything after my migraine meds kick in and I have had a few hours of sleep. My guess is that I will be red faced and apologizing for my comment. I hope we can be friends. I actually agree with your comments at least half the time, and the ones I don’t agree with at least make me think.

    I am now taking my broken sense of humor off to bed and an imitrex injection. Hopefully my ability to laugh at myself while eating crow is functioning when I wake up.

    Thank you for being blunt. Sometimes I need to just be told to stop being a dork. Thanks for reminding me that everyone has their off days, and today is definitely one of mine.

  56. I especially liked the comment about Thanksgiving dinner, but I wonder: should it be a national holiday given its potential religious connotations?

    I kid, I kid.

  57. Rachel Esplin Odell says:

    Julia (49), I agree that the “war on religion” language and imagery employed by many (a la Rick Perry, and Catholics Called to Witness) is off-putting, and worse. In fact, as someone who does happen to believe that religious liberty, or the acceptance of the role of religion in society and public life, is facing a worrisome and growing array of challenges, I find this sort of uber-polarizing approach quite unhelpful. I suppose it helps to “marshal the troops,” at the ballot box and the HHS comment box, but at what cost to the quality of the public discourse, to the empathetic capacity of people and both sides of the issue, and to the tactical likelihood of success?

    In fact, that was my initial reaction to Elder Oak’s talk on religious liberty, first delivered at BYU-Idaho in October 2009. In this speech, Elder Oaks actually introduced his subject by saying:

    In choosing my subject I have relied on an old military maxim that when there is a battle underway, persons who desire to join the fray should ‘march to the sound of the guns.’ So it is that I invite you to march with me as I speak about religious freedom under the United States Constitution. There is a battle over the meaning of that freedom. The contest is of eternal importance, and it is your generation that must understand the issues and make the efforts to prevail.

    However, I think it is worth noting that Elder Oaks and other LDS Church officials have toned down the warfare rhetoric a bit. Elder Oaks gave a talk very similar to the one he delivered at BYU-I in a speech at Chapman University Law School in February 2011. The Church issued a news release about this speech and generally made a larger amount of fanfare about it. While containing more legalese, this speech dispensed with the battle imagery present in the BYU-I talk. I don’t know whether that merely had to do with the audience, or whether Elder Oaks had decided the martial language of the earlier iteration was overly adversarial.

    In any event, the LDS Church, while raising serious concerns over the issue of religious liberty, has generally avoided the sort of hyperbolic rhetoric used by the U.S. Conference of Catholic Bishops (USCCB) or some evangelical leaders. See, for example, this Newsroom piece and this Religion News Service (RNS) article. After quoting Southern Baptist Richard Land, the RNS article states, “Much of the rhetoric was less confrontational than Land’s, and several speakers from varying denominations called for civility in a debate that has, to some Americans, become unproductively shrill,” and then gives a quote from Elder Clayton as the example of this less-confrontational approach: “‘Civility ought to be the hallmark in the way we deal with one another,’ Elder L. Whitney Clayton of the Church of Jesus Christ of Latter-day Saints told an audience of about 350.”

    So the Brethren are placing the emphasis on an ecumenical approach that prioritizes civility in our conversations with those who disagree. That’s encouraging, as it’s ultimately probably a far more productive approach, and one less likely to invite more anger, hostility, enmity, and bitterness into our society, which is one of the last things we need right now.

  58. Rachel Esplin Odell says:

    Now, while (as I mentioned above) the U.S. Conference of Catholic Bishops may not have done as good of a job at striking that balance between courage and civility, I do want to qualify my criticism.

    First, here is a little sample of the tone struck in the USCCB’s recent manifesto, “Our First, Most Cherished Liberty”:

    We need, therefore, to speak frankly with each other when our freedoms are threatened. Now is such a time. As Catholic bishops and American citizens, we address an urgent summons to our fellow Catholics and fellow Americans to be on guard, for religious liberty is under attack, both at home and abroad.

    The treatise goes on to quote Pope Benedict himself:

    Of particular concern are certain attempts being made to limit that most cherished of American freedoms, the freedom of religion. … Here once more we see the need for an engaged, articulate and well-formed Catholic laity endowed with a strong critical sense vis-à-vis the dominant culture and with the courage to counter a reductive secularism which would delegitimize the Church’s participation in public debate about the issues which are determining the future of American society.

    Initially, when I was only paying a peripheral amount of attention to this issue, I might have read something like this and thought it was way over the top. However, the HHS mandate did much to bring this swing voter’s attention to what I now believe is actually not just a fringe issue or alarmist complaint. While I still recognize that it is a complex issue, I agree with Alan (15) that the current administration has shown some remarkable disregard for religious liberty – or religious values, or the role of religion in society, or whatever you want to call it.

    Let’s take the USCCB treatise cited and linked to above. In that document, they identify seven specific examples of how religious liberty is at risk. Some of these may be (or at least seem to be) peripheral concerns unlikely to materialize (e.g. the 2009 Connecticut bill), but some of them are not. The HHS mandate, the immigration laws, and the foster care and adoption requirements are very valid concerns.

    As I see it, these examples are very different from the example of the 10 Commandments in the courtroom, or prayer in public schools. As noted in previous comments, those latter examples have more to do with the Establishment Clause, a question that I won’t delve into here. But the examples that the USCCB highlights are effectively circumscribing the church’s activities into a narrow private sphere including only members of the church, by subjecting any activities that extend beyond that sphere to regulation by the state and its secularizing program of values.

    In other words, these most recent challenges have much more to do with protecting the church (and conscience more broadly) from state interference than they do with protecting the state from church interference. Though I appreciate many of the points made, I feel that the original post, laudable fiber advocacy aside, mayhaps blurred that line.

    I know that a common objection brought against this is that Catholic hospitals, etc., often receive federal funding. In other words, they have bargained with the devil and now they must pay the piper. You can’t have your cake and eat it too.

    However, first and most importantly, the HHS mandate does not use funding as the lever by which it exercises this regulatory authority; rather, it is a blanket mandate placed upon all insurance-providing employers (barring a too-narrow range of exemptions), regardless of whether they receive federal funding. So that isn’t really the issue at hand.

    But even if it were, I personally believe it would be an undesirable policy outcome for the government to refuse funding to a religious institution – which is oftentimes uniquely positioned to reach out to a certain segment of the population, including the poorest and most disadvantaged – without demanding absolute regulatory control over that institution, including the power to force it to violate its most closely held beliefs.

    That is why I ultimately appreciate the efforts of the Catholic Church, with its HHS mandate lawsuit, and the USCCB, with its “Fortnight of Freedom.” A bit ham-handed? Yeah, I guess. But a response to a genuine problem? IMHO, definitely. And I believe the benefits of their courage in this case will outweigh the costs that could come from the overly confrontational approach being taken.

  59. EOR – As I suspected earlier, I owe you an apology. I took offense way too easily to what should have been taken as a light hearted remark about the diversity of solutions that individuals and families choose as they work through challenges. Please accept my apology, which is given without excuses. I should have thought more and reacted less, especially as I reacted so harshly.

    Please order me a humble pie, with a side abject apology, and a sprinkling of crow on top. I have already thrown out the stupid/judgmental cider I was drinking earlier.

  60. Rachel, the current hardline out of the Vatican (and consequently out of the USCCB) has much more to do with an ongoing intramural counterreformation, a final act in the near-complete reversal of Vatican II. Obama and health care are more of a tactic in this ongoing attempted realignment than signs of some newfound zeal for ecumenism and civic engagement. Similar motivation appears to underlie the new vernacular translations of the mass and the “War on Nuns” that the Vatican has been waging recently, and this latter in particular does not seem to me particularly “courageous”, only sexist and opportunistic.

  61. Julia (55,59) It was a misunderstanding. It happens to all of us. I know that I am especially inept at communicating in this format because I rely so heavily on tone of voice. It was an easy mistake to have made. I accept your olive branch, but no need for humble pie or anything like that. I am glad we were able to get past it.

    Rachel (58) I cannot agree that forcing an employer who receives federal funds to follow the law is anything like religious persecution. The Catholic Church has no shortage of funds. They could easily run all of their hospitals and programs free from “government intrusion” by using their own funds. They choose to accept federal funds which are paid for by the public (when they of course pay no taxes) so they must live with the consequences. You are correct that they are uniquely situated to reach certain segments of society because of their religious mission so then it becomes a priority issue. Is it more important to refuse to provide necessary (and normal) costs of healthcare to its employees or more important to reach that disenfranchised segment that relies on them for both spiritual and temporal health?

  62. Rachel Esplin Odell says:

    EOR, I was not suggesting that imposing requirements or attaching strings to federal funding is ‘religious persecution’ or even a violation of religious liberty. I happen to believe that doing so is not necessarily desirable, but I fully recognize that is a very controversial position, and one that is negotiable.

    But as I noted above, that is not the problem in the case of the HHS mandate, which I do believe is a violation of religious liberty. The HHS mandate does not use funding as the lever by which it exercises this regulatory authority; rather, it is a blanket mandate placed upon all insurance-providing employers (again, barring a too-narrow range of exemptions), including religious employers, regardless of whether they receive federal funding.

    Dan, fair enough — I perhaps incorrectly described the actions of the USCCB as examples of “courage.” The USCCB is a very powerful institution in America, in some ways moreso than the Obama administration. So I don’t know that their stance necessarily required “courage” per se. (Though in some ways, I suppose the whole rolling-back-Vatican-II project is pretty gutsy. Entrenching on a range of issues in which your religious followers have become accustomed to ignoring your teachings is arguably no small risk.)

    That said, I stand by my original point. Maybe the USCCB’s stance is not “courageous,” but IMO it is a positive step. For a long time, the Catholic Church has been content with seeking ad hoc exemptions for itself and avoiding a more comprehensive assertion of the freedom of conscience of religious adherents. For whatever reason (I would submit it’s a combination of the unique challenge presented by the HHS mandate, as well as a goodly dose of the intramural dynamics you mentioned, accompanied by an unfortunate lack of communication and outreach to and from the Obama administration), the Catholic Church appears to be awakening to a sense of the increasingly enforced privatization of religion in American public life. I personally believe this awakening is a positive development. (I won’t delve into the ‘War on Nuns’ issue, since I simply don’t know enough about the details. I’m not one to be overly generous toward the Catholic Church when it comes to the status of women, but I would guess that the situation is more complicated and debatable than you suggest by calling it “only sexist and opportunistic” [my emphasis].)

    (And I see that my comments above actually did end up posting in proper order… I’m new to this blog-commenting thing.)

  63. Karen, I think you mistake me: I’m not arguing that government should be free to engage in whatever religious speech it chooses. As I’ve said, I’m still figuring out what I think about the Establishment Clause. You give a number of reasons why government religious speech should be limited, reasons I find relevant and important, but you’re still not responding to my criticism of your post, which is that your distinction between religious privilege and religious freedom doesn’t actually help us answer questions about the Establishment Clause. If the majority religion uses the government to spread their religious ideas, they have a privilege other people don’t. But if government can’t spread anybody’s religious ideas, then people with non-religious messages have a privilege that religious people don’t. Atheists who want to criticize religious thinking on creation, history, sex, etc. use the public schools to teach children that their parents’ religious beliefs are wrong, but religious people can’t use the public schools to try to convert atheists or even to shore up their own children’s faith.

    Again, something like this is probably the right outcome, but labeling one side of the argument “privilege” just doesn’t get you there. And worse, it’s dishonest. It makes it sound like religious people are demanding special treatment, and that if we don’t give it to them, everything will just be fair. In reality, yes, religious people are asking for special treatment–but if we don’t give it to them, they will be at a special disadvantage. There’s no option that really treats everybody the same.

    I think Julia’s Thanksgiving analogy gets to the heart of the matter. Different Americans have different religion allergies, and we have to accommodate them all somehow. Is it a privilege for me to eat onions when someone else at the table is allergic to them and can’t stand the smell? Or is it a privilege for the allergic person to stop the rest of us from eating onions? If we’re being fair, the answer to both is “yes,” which shows how useless the concept of “privilege” is in this context.

  64. I imagine there are some pockets of atheism that probably want atheism to be taught in schools, but by and large that is not my experience. Most atheists, or non-Christians simply want schools to teach curriculum. The sexual education that religious people want taught in schools is abstinence–that is not education–that is sticking your head in the sand. It would be more useful to not teach anything. If parents want to shore up their children’s religious education and belief structure they have avenues to do so, but if atheists want to teach their children evolution they do not. So, imo it is a special privilege that religious people are asking for.

    If there is a large number of atheists requesting that atheism be taught in schools I am unaware of it and would like (for my own edification) to be pointed to this. Otherwise, leaving religion/spirituality out of education is not the same as teaching atheism.

  65. Mark Brown says:

    Alan, with many states now providing tax money to private schools via the voucher system, private religious schools can and absolutely do teach that Mormonism, just for instance, is wrong. You are correct, we don’t have a precise understanding as to whether that is religious freedom or privilege, and religions have now exploited that confusion in order to take potshots at one another. We like to think of atheists as the Bogeymen, but when it comes to pure viciousness, other Christians are much more likely to want to go for our throats. That is what all these decades of culture warfare masquerading as fighting for religious freedom have given us.

    And speaking of imprecision, I’ve noticed that when our general authorities speak on this topic, they often use *religion* and *Judeo-Christian religion* interchangeably. I would feel a lot better about the zeal that many religious people display on this issue if they weren’t displaying such blatant self-interest. Yes, it hurts when our own ox is gored, and when our plans for temple-building are challenged, we LDS are often quick to see it as an instance of religious persecution. If we really believed our own rhetoric, we would be just as quick to speak up when Muslims are denied a building permit.

  66. Mark (65) “like” button.

  67. Karen H. says:

    Alan, I really appreciate your discussion here. It’s made me think about a lot of issues, so thank you. I do understand what you are saying, but I simply disagree with you. I know that legally the establishment clause has a murky interpretation record. I think, however, that the mere inclusion of a prohibition against establishing religion in the constitution is a huge marker here against the government engaging in activity that could show preference for one religious group over another. I think your argument that the government engaging in religious speech, such as teaching creationism in school, in order to “even the playing field” is flawed because it is pitting religious speech against secular speech and making a presumption that they ought to be equally balanced and that they are two great world views pitted against one another with a balanced see saw between them being the best outcome. I don’t agree with that. Religions and religious people have the ability to teach whatever they want in their churches and homes. Secular life is just everything else. It’s not moral net positive or moral net negative, it’s just life outside the religious sphere. They’re not on a see saw together seeking balance, they’re in different playgrounds. The government engages with secular life, and should leave you alone to have an enriching, vibrant spiritual life free from its interference.

    When I discussed “privilege” in the original post, it was in narrow circumstances where the label of “religious freedom” was being used in a way that described desired actions that did not take place, rather than the inability to engage in something religious. I agree with your comment that my original post does not address the establishment clause issues. I didn’t intend it to.

  68. Dang girl! Amazing. Loved the post.

  69. Left the thread, but thought I should come back to respond briefly. Two points:

    1) Mark, yes, absolutely we need to be consistent in standing up for religious freedom. I hate anti-Islam campaigns, etc., and there’s no way I would have worked at the Becket Fund if they weren’t really committed to the religious freedom of everybody; as they like to brag, they’ve represented everyone from Amish to Zoroastrians. Supporters of religious freedom on all sides have been willing to sell it out when it concerned a religion they didn’t like–the right doesn’t care much about Muslims’ religious freedom, and the ACLU doesn’t care much about religious freedom when people teach things they don’t like about gays. Visions of religious freedom have become increasingly partisan over the last twenty years, and it’s a big, big problem.

    2) Karen, I didn’t say I wanted to “even the playing field.” I said I think it’s impossible to even the playing field. As long as the government has power, people are going to try to use that power to further their religious and/or anti-religious ends, and many of them are going to succeed. The Establishment Clause can reduce the stakes in that fight somewhat, but actually making the government neutral among the various religions and their various enemies isn’t even conceptually possible, to say nothing of practically possible–there will always be some religions and some anti-religious movements better supported by government policy than others. So at present, atheists who want to use public schools to teach children that their parents’ religious beliefs are wrong may do so because they’re teaching a secular message (evolution, tolerance, sex ed, whatever), while religious people may not use the public schools to convert atheists because that would be religious. That’s the way it is, and I can’t think of a better policy to replace it, but I’m not going to pretend it’s an even playing field.

    Your “spheres” approach is pretty similar to the idea of separation that is the dominant paradigm in religion jurisprudence today. There are two problems with it. First, it’s not at all obvious where the spheres start and end. If my religion teaches me to have more than one wife, is that private? Not according to the 19th-Century Supreme Court. If my religion involves sacramental ingestion of peyote, that seems pretty private, right? Not to the Supreme Court–controlled substances are a public health issue. How about if my religion will only hire male priests. Is the selection of our religious authorities a private matter? No, says Obama’s Justice Department. That’s employment, and rooting out employment discrimination is an important goal of public policy. The line between public and private is rarely clear and always disputed. And since it’s always the public, through the government, that decides what’s public and what’s private, is it any surprise that over time the public has grown and the private has shrunk?

    Second, it’s not religiously neutral. Different religions define their religious sphere differently, so if we’re going to pick one private sphere where religion is permissible, it’s not going to fit everyone equally. In the U.S., our religious sphere is defined in basically Protestant and post-Protestant ways. So when religions do things that don’t look Protestant, people try to say religious freedom doesn’t apply because they’re in the public sphere. Protestants don’t sign contracts to be adjudicated under religious law the way Muslims do, so they don’t see a religious freedom issue when they campaign against Shari’a. Most Protestants don’t have the Catholic Church’s commitment to running hospitals, charities, schools, adoption services, etc. under the auspices of the Church–they think that’s “public” work, for the government–so it’s no surprise when they show no sympathy for the myriad issues (e.g. the current contraception fracas) that the Catholic Church faces because of its institutional social outreach.

    Anyway, thanks for the conversation, and I will officially bow out this time instead of just abandoning the thread by accident. Good to have talked with you all.

  70. It’s a sad day when evolution, tolerance, and sexual education are put forth as atheist issues instead of education and safety issues.

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