The June issue of The New Era includes an article entitled “Why Religious Freedom Matters: What’s at Risk.”
As I read through it, I had two primary thoughts. On the one hand, I applaud the church for attempting to educate teenagers about their civil rights and responsibilities. This is an important topic, and one that our teenagers should be exposed to.
On the other hand, though, I’m perplexed and bothered by the actual delivery. The content ranges from accurate to irrelevant to speculative to flat-out wrong. So while conceptually, I think this article is both necessary and important, it ultimately fails spectacularly.
I’ll be completely honest here: I mostly don’t want to discuss the content. I’d rather focus on two things that, if improved, would exponentially increase the value of the article.
Conflating Private and State Action
The first big problem I have with the article is that it doesn’t separate private actions from state actions. And while both state and private religious discrimination are invidious, in most cases, they’re analytically distinct, and cramming them together isn’t terribly illuminating. If I were writing this list (which I wouldn’t, btw, for reasons I’ll go into in the next section), I’d probably group job loss, hiding religion at work, working on the Sabbath, and faith-based clubs in the private action column, and most of the rest in the state action column. At the margins, there may be questions about where to categorize an issue (for instance, is loss of professional certification a state or a private action?), but, for the most part, the two aren’t hard to distinguish.
And distinguishing them is important, if we’re going to deal with them. Having the state refuse to allow you to adopt based on your religious beliefs and practices is significantly different from your neighbors’ not allowing their kids to play with your kids because of your religion. The first raises questions of law, while the second raises questions of social norms. The solution to the first may well be a lawsuit (or lobbying, or running for office), while the solution to the second may be becoming a better neighbor. Both are bad, both are discriminatory, but only one, frankly, invokes questions of religious freedom.[fn1]
What If?
When I was a kid, I was a big fan of Marvel comics, and in my collection, I had several What If? titles. The basic premise was, we’ll take something significant that happened to a superhero and tweak it. What kind of impact would that tweak have? What would it change in the trajectory of the hero we know so well?
The examples the New Era provides remind me of these What If? comics. Basically, every bullet point starts with “You may” or “You might” or “You could.” Some examples (like pressure to resign) are based on actual things that actually happened. Some are based on things that religious individuals have worried about, and some on things that others have suggested should happen. But the thing is, few of them are likely. Take, for example, the idea that churches will lose their tax exemptions. It won’t happen.[fn2]
But there’s a real problem here: the possible is intermingled with the unlikely is intermingled with the impossible. And essentially, it starts reading to me like the boy who cried wolf. If I, the person interested in religious liberty, am not willing to take the time to figure out the real threats, why is the person I’m trying to convince going to bother listening to me?
For this, too, there’s an easy solution: point to real examples of violations of religious freedom. They’re not hard to find! Check this:
State Action:
- Russian government’s classifying Jehovah’s Witnesses as “extremist” group.
- French laïcité.
- U.S. Muslim ban.[fn3]
- Using zoning rules to prevent mosques.
Private Actions
It’s Not About Us
One last thing: many of the examples I provided probably don’t pose any direct threat to Mormons or Mormonism. (Okay, Russia probably does, and we’ve faced discriminatory zoning with temples and churches, but that’s basically it.) That’s intentional on my part. I recognize and understand the power of “First they came …” But what if you can guarantee a fire break, guarantee that, even if they came for the Muslims and for the Jews, they won’t come for the Mormons? I don’t think that reduces the importance of arguing for religious freedom; in fact, in some ways, focusing on issues that will not affect us strengthens the perception that we’re interested in religious freedom as a right, unconnected from our selfish preferences. And that, too, is an important lesson to teach our teenagers (and, frankly, ourselves): we don’t merely advocate for things when those things will benefit us personally; we advocate for right things precisely because they’re the right thing.
So kudos to The New Era for addressing an important topic. I hope it returns to the topic soon, and that its next attempt is done in a more nuanced, accurate, and valuable manner.
[fn1] And I know, the article doesn’t say anything about neighbors not letting their kids play with yours. Perhaps the better example—though it lost the parallel structure that I thought adoption and kids enjoyed—is that you could be fired or pressured to resign for donating money to oppose same-sex marriage. That may not be ideal, but in a marketplace that’s trying to appeal to a certain customer base, that monetary donation may send a message that the clientele doesn’t want. Note that your employer cannot fire you for belonging to a church that opposes same-sex marriage; that would violate federal law. But as long as you’re not being fired for your religious beliefs, it seems to me that pressure to resign is not something we want to deal with through by law, both because it would shield people from the consequences of their actions and because it would significantly infringe on speech rights.
[fn2] Every time I say this, somebody chimes in to say, But it’s different this time!!!1! The world has changed!!1! The past is out the window!!11 So how about I revise that statement a little: churches could lose their tax exemptions for opposing same-sex marriage. But also, the Skrulls could come to Earth and take it over. But the likelihood is infinitesimal. I mean, if we just look at incentives, what incentive would the IRS have to revoke a church’s tax exemption? It’s a ton of work, it’s not going to provide any additional revenue, and it will only make the IRS less popular than it already is (see, e.g., the Lois Lerner thing). So it could, conceivably, happen. But it won’t.
[fn3] Yeah, I get why the church wouldn’t want to raise these politically-charged examples. But we use what we have.
By Common Consent, a Mormon Blog 
Thanks for this review – I’ve been stewing over a very strange Religious Freedom presentation given at a joint meeting during the 3rd hour of church a few weeks ago that featured many of the items you point out in this Article. And there was one of those explainer-type cartoonish videos on the Church’s website to go with it. The Church seems to view a lot of this stuff through a legal lens rather than a social one (a problem with American discourse in general, but I digress), and seems to run this program mainly through lawyers (i.e., at the Q12 it’s Oaks and Cook, etc.) Given that, I have a hard time interpreting this information as anything other than deliberately misleading. But to what end remains a mystery to me.
From the article: “You may be required to work on the Sabbath or religious holidays even when others are willing to take your shift and your employer accommodates other nonreligious interests.”
That’s basically always been true in the United States. I mean, before Title VII it was certainly true, unless you lived in a state that had some kind of law requiring religious accommodation. And even after Title VII, there’s really almost never been much of a right to religious accommodation. Title VLL was passed in the mid-60s, and a few years later, the EEOC passed regulations that interpreted failure to accommodate religious practice as a form of religious discrimination. There were a few Title VII cases of sabbatarians suing their employers for firing them for refusing to work on their sabbath, relying on the EEOC regulations. The Courts basically said no, you were fired for not working your assigned hours, not because of your religion, so no violation. In response, Congress amended Title VII to include an accommodation requirement, but later cases have taken most of the force out of the accommodation requirement by basically saying that it only applies when the accommodation wouldn’t impose more than a de minimis burden on the employer, which is a super easy standard to meet.
So the reality is that your employer can usually require you “to work on the Sabbath or on religious holidays [but Mormons don’t have religious holidays do we?].” Maybe the “even when others are willing to take you shift and your employer accommodates other nonreligious interests” is supposed to carve out the situations where there is a de minimis burden, but in reality, a halfway competent lawyer can almost always make a case to a federal judge that giving somebody the day off creates a more than de minimis burden.
I don’t know, I think if this were run through lawyers it would have done a much better job at the difference between private and state action. But you may be right that this is going through Elder Oaks, I don’t know. But let’s not forget that the religious freedom view that Elder Oaks was most familiar with as a lawyer and judge was created by liberal supreme court justices in the 1960s and maintained through the early 90s, and that it was the conservatives, chiefly Scalia, who dismantled it in the 1990s.
Thanks for the review. Sounds right to me. One additional concern I have — but I don’t know how to address it at a New Era level of sophistication — is that many of the real cases that I know about (perhaps your ‘likely’ or ‘possible’) are hard cases. You can tell an advocate’s version in which the “right” answer is obvious, but a fair and balanced description of the real facts and relevant law usually make for a close case. Presenting a one sided version with the suggestion that we all know what should happen feels like pamphleteering.
So just to be clear here, you believe that if somebody, donated their own private money to, say, Planned Parenthood in a more conservative part of the country (I’m in Texas and anti-planned parenthood billboards are all over the place), then that person’s employer should be able to legally fire them for that donation, (presumably to appeal to a certain customer base)?
I think it is telling that there is no byline on the article. No one wanted to take credit for the hodgepodge.
Tiberius, no. That’s outside the scope of what I’m talking about or what I said. What I am saying is that such a firing wouldn’t represent an imposition on the former employee’s religious freedom, even if she donated to Planned Parenthood out of a sense of religious obligation.
Moreover, like I said in the post, that’s not the kind of thing that’s amenable to a legal solution. How do you prevent customers from pressuring a company to fire an employee? I don’t know, but that’s not a world that the law should generally step into (unless the pressure is to fire someone as a result of their being in a protected class).
Okay, I was a little fuzzy on the implications of this statement:
“you could be fired or pressured to resign for donating money to oppose same-sex marriage. That may not be ideal, but in a marketplace that’s trying to appeal to a certain customer base, that monetary donation may send a message that the clientele doesn’t want.”
It seemed that you were implying that, while not ideal, firing somebody over a donation against same-sex marriage should be a legally legitimate, market-based reason to fire somebody.
So to flip around the Planned Parenthood example, you are not arguing that people should not be legally protected from being fired over their anti-same sex marriage donations, but rather that such protections don’t fall under the aegis of “religious freedom”? It’s true that you can’t prevent customers from pressuring a company against firing somebody, but you can hold corporations legally liable for firing somebody due to a private donation on their part, and if that’s going to be okay then it should be as okay for Planned Parenthood as it is for NOM.
There are legal aspects to freedom, but that is far from the whole of freedom, though naturally the portion where lawyers may like to concentrate their attention. Hammers, nails, and all that.
The problem isn’t in defining “religious freedom” broadly to include freedom from cultural or social pressure in addition to freedom from state action; the problem is in assuming that the cultural pressures are violations of the legal rights, and therefore trying to use legal solutions to remedy the cultural pressures without clearly understanding or articulating the difference.
I agree that it is important to focus on realistic threats, and that raising alarms where none exist can be counterproductive to the cause of religious liberty. However, I want to point out that the comments to this article appear to reflect a U.S. bias, whereas the New Era, as with other church publications, is written for an international audience.
I agree with Sam that tax exempt status for traditional churches is not seriously at risk in the United States. It would be more accurate for the article to emphasize that religiously affiliated or religious-principle based organizations are being targeted. For just one of many past examples, see, e.g., http://www.npr.org/2013/09/03/218572821/california-lawmakers-target-boy-scouts-tax-exempt-status. That said, the tax status of churches is subject to very different laws in other countries, and is not necessarily as secure as in the United States.
It is also the case in other countries that the church/state divide can be more blurred, and is arguably irrelevant. I think the church is right to emphasize that religious liberty is not just a legal concept but also a social norm of conduct. This is because, as a practical matter, your religious rights often are only as secure as both the government and a majority of your neighbors believe they should be.
Two examples will suffice. The Soviet Union had express constitutional protections for religious worship. http://www.departments.bucknell.edu/russian/const/77cons02.html. Yet these written protections meant nothing to those in a position to enforce them. Another example is from early Mormon history. President Martin Van Buren famously agreed that the Mormons’ rights were being violated and that their cause was just, but the Mormons were too politically unpopular for him to take action. The result would likely been very different if a greater proportion of the Mormons’ neighbors respected their religion.
JKC, if you are referring to the New Era article, it doesn’t propose legal solutions. The actions it calls for are “to raise our voices” and “join the cause together.”
I am always a bit skeptical when someone says that government is restricting their religious freedom as Mormons or Christians. Mostly it appears to me that those claiming such discrimination are privileging what they perceive as their own rights over the rights of everyone else around them. At the risk of alienating my libertarian friends, that is what has always struck me as ironic about what libertarians seem to get upset about. It appears to me to be an act of selfishness in a world where you are otherwise engaged with those around you, and dependent on that interaction for your livelihood or well-being. When you claim that someone else’s beliefs are a threat to your own, but the primary nature of that issue is because you have chosen a particular occupation or business, it smacks of overweening self-interest. You become what you claim to fear.
A couple responses:
Steve, church publications do look toward international audiences. But it’s important to note that everything in the article was US-centric. Had it been internationally-focused, it would have focused on different issues. Moreover, there is not any rush to strip exemptions from organizations, religiously-affiliated or not. The BSA is not a religious organization, but even if it were, the proposed bill failed to garner the votes necessary to pass.
John, you’re totally missing both JKC’s and my point: the difference between private and state action matters even if we’re just going to raise our voices together, that difference matters. Unless, of course, you think going into the streets and chanting “Religious liberty” is the proper way to raise our voices. As I said, and as JKC said, the problems of private discrimination differ from the problems of state action. If I’m raising my voice, it behooves me to know which one I’m talking about or, if I’m talking about both, it behooves me to be able to differentiate between the two.
No, John, I wasn’t suggesting that the article was calling for specific legal solutions. If it were, the New Era would be kind of a strange forum for that. My point is simply this: Raise our voices saying what, exactly? Join exactly which causes? Cultural pressures and state action require very different kinds of solutions, and treating it as just one big amalgam isn’t going to be very effective, and in fact, can end up doing more damage than good.
I’m no attorney but it seems you are complicating the message of the New Eria article. Maybe I think on the level of a teenager, but it seems to be a call to stand up for religious liberty in private and public life, in interactions with other people, in voting for candidates and laws that will do the same. It points out to the teens what they stand to lose. Many of them probably didn’t connect these dots, such as how religions losing tax exempt status would affect them personally. Yeah, some of it is slippery slope argument, but we do that all the time, even in the bloggernacle.
While not new for either, our 21st century political climate is full of extreme alarmist rhetoric and the Church (through this article) is lock step in line with it.
Well written. Good commentary. Thanks for sharing.
Well, since the line between legal and social is where all the interest and significance is which it “behooves” one to carefully consider, zoning matters are a complex interface of the two. Zoning is enforced by laws, and the laws are shaped by what communities want. If a mosque or LDS temple is getting the run-around, one approach at solving the problem “may be becoming a better neighbor.” To help the Philadephia Temple move along, the LDS Church greased the skids with a $300,000 donation to the mayor’s prisoner-reentry program.
John, I don’t know the background on that, but assuming it’s true, that’s a good example of the church using a cultural solution to a cultural problem. The fact that “laws” were somehow marginally involved doesn’t mean that there was a legal right to religious freedom that was being violated. Trying to use a legal solution would have been suing and arguing that the denial was a violation of religious freedom or trying to pass a law that establishes a new right guaranteeing zoning variances to religious groups, neither of which would have had much realistic chance at success, and both of which would have likely created blowback that would have made things worse.
It’s bothersome that the Church is indoctrinating our children with incorrect principles. Regarding the religious “right” not to work on Sunday, the Church requires all sorts of employees to work on the Sabbath, and since when does a person have the “right” to force an employer (or any other person) to honor their desire to not work on a particular day? Doesn’t this conflict with an employer’s right not to honor/recognize religious/moral beliefs that it may disagree with (btw, which is a right the Church is claiming for itself in one of the bullet points)?
Also, tax-exempt status for churches; tax exemptions for charitable contributions (which disproportionately benefit the wealthy); and federal funding for religious schools that have offensive doctrine and practices are certainly not issues of religious freedom. Instead, these items are forms of religious subsidies/welfare.
JKC, I left a comment with three links to news articles from 2010 regarding the LDS church’s $300,000 donation to the Mayor’s Office of Reintegration Services for Ex-Offenders. The comment is in moderation, probably due to the internet links.
Not the point, John.
John, you realize that if it take massive donations to resolve zoning issues, that’s a huge problem for religious liberty, right? I mean, the LDS church has the money to make those kinds of donations, but small, unpopular, or marginal churches may not have the resources or the political capital to do so. Which is why I place zoning—which, your assertion to the contrary, is definitely a legal issue—as one of the significant religious liberty issues in the US, albeit one with limited relevance or currency to the LDS situation (because we have the resources and know-how to play the game).
Junia, it’s beyond the scope of this post, but it’s not clear that tax exemption represents a subsidy at all. Moreover, while in the abstract, losing that or a deduction for charitable contributions to churches isn’t a religious issue, it becomes such if the exemption is lost as a result of religious discrimination. That is, even without targeting religion explicitly, an otherwise-neutral law may invidiously infringe on religious liberty. (See, e.g., Church of the Lukumi Babalu Aye. Cf. the facially-neutral NC voting ID case, where, though the law didn’t mention race, it was explicitly meant to disenfranchise African American voters.)
That is, I’m not arguing that there’s no infringement on religious liberty. Even in the US there is. But I’m saying that, when we talk about religious liberty, we need to be careful to address actual problems, or likely problems, not just any problem we think we might be able to imagine.
Also, Leo, I moderated your comment. I’m not comfortable with a comment that just copies and pastes the first paragraph of an article, but doesn’t bother putting it into quotation marks and doesn’t comment on it. Yes, you provided a link, but nothing signaled that it was someone else’s writing, which strikes me as plagiarism.
Sam Brunson, it is strange that you turn my thought that zoning is a complex interface of legal and social matters into an assertion that zoning is not a legal issue. I guess it serves your argumentation purposes. It is neat that you and JKC split on whether zoning is primarily a legal matter or a cultural matter with so-called laws marginally involved. I agree with points that each of you made.
John, reread my comment. I explicitly say that zoning is a legal issue. That’s not to say there’s no aspect of culture to it, because culture is always wrapped up with law. But discriminatory zoning is very clearly a matter of state action, not private action.
Let me try that sentence again, Sam. it is strange that you turn my thought that zoning is a complex interface of legal and social matters into an assertion BY ME that zoning is not a legal issue. I deny that I asserted that zoning is not a legal issue, and it is strange that you assigned such an assertion to me.
You know, I can see that my comment can be read to broadly label zoning in general as just a cultural problem, and that isn’t what I meant. It depends on the facts on the ground. If there is a zoning ordinance designed to discriminate against a religion (like Lukumi), that’s an infringement on a legal (actually, constitutional) right to religious freedom. If it’s not specifically designed to, but it has the effect of substantially burdening religious exercise, and isn’t necessary to fulfill a compelling government interest, then that’s an infringement on a legal (but not constitutional) right to religious freedom, under RLUIPA. If it’s just that the church wants to build something somewhere because it would be nice and pretty and convenient, but the zoning ordinances preventing it from doing so are neutral and generally applicable, and not being able to build what it wants wouldn’t impose a substantial burden on the religious exercise, then that’s not a legal problem at all, but a cultural one.
Your description of the Philly temple issue, John, sounded to me like it fell into the last category, so I characterized it as a cultural problem. And I stand by my statement that the church’s strategy was a cultural solution. And even if it really does fall into the legal problem category, I don’t necessarily fault the church for it, but, as Sam points out, that cultural solution makes a pretty poor answer to actual infringements on legal rights of religious liberty.
John, I’m sorry then. I misread you.
Another way of expressing it is this: Constitutionally, we have a right to be free from state or federal action that intentionally discriminates against our religious belief. Depending on context, we might also have a legal right to be free from federal or state action that substantially burdens our religious practice, unless it is necessary to fulfill a compelling government interest. We don’t have a legal right to be free from government action that applies to everyone and prevents us from doing stuff that we’d just like to do.
So some the questions facing us for purposes of defining religious freedom are (1) should we have the right to be free from state action that substantially burdens religious practice, even where it’s a neutral, general applicable law? and (2) should we have the right to be free from government action that keeps churches from doing stuff that we’d like to?
And I’m sorry if I’m beating a dead horse here, but the irony is that we used to have (1), and it was the conservatives that got rid of that legal protection when it was being used to protect unpopular Native American churches from the consequences of violating drug laws through sacramental peyote use, and now it is the conservatives that are claiming the erosion of religious freedom when they can no longer claim that same protection to protect them from the consequences of violation anti-discrimination laws through religiously-motivated discrimination against LGBT people.
As you well point out, not every obstacle to the practice of religion is a legal obstacle, and it should also be appreciated that those raising concerns about other obstacles are not necessarily claiming that “There ought to be a law.” Not everyone fantasizes about holding a press conference on the Supreme Court steps. They may want to promote as a social value, not enforced by the state, that others’ religious practices matter.
John, we might be talking past each other a bit. You’re right that ‘those raising concerns about other obstacles are not necessarily claiming that “There ought to be a law,”’ and if anyone thought that, your point is well-taken. My point, and Sam’s, I think, is that given that the legal and cultural problems and solutions are different, we need to be more careful and actually articulate what we consider to be threats, and which kinds of solutions we propose for different which kinds of threats.
This is great Sam — I very much agree with this post overall and share your exact concerns. My main objection is a quibble: you lumped French laïcité in as a broad category of violations of religious freedom. I don’t agree that’s the case. Some instances of how laïcité have been implemented, such as the French headscarf ban, violate religious freedom, but in general, vigorously separating church and state or rather providing for a robustly secular public political sphere (so that no one is forced to abide by sectarian or dogmatic principles in which they don’t believe) is not a violation of religious freedom. Many can and do argue that it’s the opposite: it more fully allows religious freedom because people who aren’t religious are not forced to abide by others’ religious obligations.
I mused on some of these ideas, including laïcité (both French and Turkish), in a BCC post seven years ago: https://bycommonconsent.com/2010/07/27/a-secular-turkish-delight/ — this post is now actually tragic in light of how Islamic strongman Erdoğan has gradually demolished Turkey’s robust secularism over the years since then, significantly threatening religious freedom in the process.
As to using zoning laws/rules to prevent the construction of mosques or Islamic centers, I appealed to Mitt Romney’s Mormon faith in a plea for Republican — or Mormon — leadership on that issue to no avail. (See https://bycommonconsent.com/2010/08/26/an-appeal-to-mitt-romney-for-republican-leadership-on-the-mosque-issue/) It seems Mormon Republicans aren’t putting their money where their mouth is when they talk about violations of religious freedom? That they want Mormons’ and Evangelical Christians’ religious freedom protected but Muslims? Not so much?
Sam,
A quick series of fully documented examples that run counter to your thesis and that were duly sourced in each and every case does not fit the definition of plagiarism, just the oppose, in fact. The series even began with an attribution. It is true that I didn’t fill in with personal commentary, connect all the dots for the reader, and turn it into a formal essay instead of a quick and innocent comment, which I will do later today. The comment will then be much longer.
Thanks for the warning. We’ll be ready.
Hey Leo, I see you had two comments. Your bigger one hit our spam filter, probably because it had too many links. Your other one—the one I moderated—quoted the first paragraph of a First Things article, then gave a link.
Looking at your first comment—presumably the one you’re going to expand on—I’ll confess I don’t see a “series of fully documented examples that run counter to [my] thesis.” But maybe when you come back later today, you’ll do that.
Of course, my thesis is that the New Era article has a good goal but, for various reasons, falls short of that goal. So I wait, with bated breath as it were, to see your counter to that.
john, I’m totally fine with your quibble about French laïcité. I’m not an expert by any means, and I agree that the separation it was intended to engender is good both for religion and for the state. My familiarity is mostly derived from post-headscarf-ban, so maybe I should have written that rather than laïcité.
A little late to the party on this one but thought I’d offer a couple of thoughts.
You seem to have a fairly narrow definition of that constitutes freedom of religion and consequently what should and should not be permitted either on a state or private level. I would think that most people, in addition to the right to believe as one wishes, would also want the right to act in accordance with those beliefs. Presumably we would agree that neither the state nor your employer regardless of public pressure should be able to sanction you for acting in accordance with your beliefs by attending church on your chosen day. But where does this line get drawn?
You seem to be of the view that it is acceptable for your employer (not certain where you think this falls on the state scale but if the government is not prohibiting it then it is permitting the discriminatory action to take place with a similar result. ie you are treated in a negative manner as a result of the exercise of your religious beliefs) to sanction you for supporting the “no to same-sex marriage” position, which would appear to be a restriction on acting in accordance with your religious beliefs.
However, what if you felt that it was necessary for you to act in accordance with your beliefs by helping out at the local foodbank or advocating, either vocally or with your pocketbook, in favor of enhanced government benefits for the less fortunate but your employer felt that such behavior contributed to the shiftlessness of society and consequently felt it necessary to sanction any employee who acted in such a manner? That doesn’t seem to be appreciably different than the “no to same-sex marriage” action except that one is currently politically correct and other is not. Would you be of the same view that it is acceptable for your employer to sanction you and the government to permit him to do so in that case? What if you were a Muslim advocating publicly for prayer rooms and prayer rights for Muslims at your workplace?
There is also room for debate I think on the likely v. unlikely v. impossible. For example, on the “no chance in hell” (ok infinitesimal chance) the IRS would take away the churches tax-exempt status, similar positions were taken back in 2003 regarding the eventual legalization of same-sex marriage after the ruling in Lawrence v. Texas and look where we are less than 15 years later. As for IRS not doing it because there is no real financial benefit, you seem to impute a rational decision making mindset to the government in general and the IRS in particular that I have seen little evidence of in the past. There was little financial benefit and potential negative public relations fallout in the “stricter examination of conservative political groups” (or as you say the Lois Lerner thing) but the IRS did it any way. Why would you think it is any less likely someone with a negative view of Mormons and their position on same-sex marriage would not be of a similar mindset? Certainly there would be a segment of US society that would favor such a move and thus mitigate, if not eliminate, the negative public relations concern. Thus it is hard to see how one can say that it “won’t” happen.
Finally while not specifically dealt with in your post, I would think that it is probably a given that one fallout is that, the church will, in the not too distant future, give up its right to perform marriages because it is not prepared to also perform same-sex marriages. Marriage is of course a state function and not a religious function and if you can’t refuse to perform the state function of giving out licenses for same-sex marriages because of your religious views I would think it would follow that you can’t have the right to perform the marriage itself unless you are prepared to do it for all types of marriage.
The religion clauses of the First Amendment are complex, both legally and logically. Their meaning depends crucially on the way the clauses have been explicated by the courts in complicated series of cases. It is not possible to make sense of the religion clauses without some legal training. For an illustration of this problem, compare the comments in this thread written by lawyers to those written by non-lawyers. They mostly talk past each other.
One lesson I take from the complexity of religious freedom law is the overarching importance of our respect for the rule of law. We can’t all be lawyers (thank God!), but we can all understand the value of sustaining the authority of the law and of the courts that make law and enforce it. That’s a value of citizenship that is more fundamental than any political cause—even the cause of religious freedom. If we compromise our commitment to the rule of law, then we lose the foundation that makes religious freedom possible.
Especially now, in times that seem politically precarious, we must be very cautious about rhetoric that blurs the line between loyal opposition and rabble-rousing. Political rhetoric tends to weaken our commitment to the rule of law when it oversimplifies issues like religious freedom and neglects to put those issues in the larger context of our shared obligations of citizenship. The New Era article unfortunately comes off as a frightening parade of terribles. This is the kind of thing that will make young readers feel victimized when we ought instead to help them be empowered by obeying, honoring, and sustaining the law. There is a real difference between activism motivated by tribal fear and activism motivated by the desire for liberty. I’m concerned that too much of what we’re hearing from the church these days on this issue leans too far toward tribal fear.
You may be required to replace your CTR ring with a WWJD ring.
You might be forced to get the mark of the beast on your forehead and your hand.
You will be offered the opportunity to get the mark of the feast* on your other hand.
You will most definitely be required to stop saying “moisture” and “fetching.”
*Entitles the bearer to buy one get one free at participating restaurants. Weekdays only. Void where prohibited.
Ojisan, Sam can answer for himself, but for my part, I wanted to respond to a couple points you raise, since they relate to my earlier comment.
‘Presumably we would agree that neither the state nor your employer regardless of public pressure should be able to sanction you for acting in accordance with your beliefs by attending church on your chosen day.’
See my earlier comment. In most cases, you don’t have a right to take time off of work on your chosen day to attend church unless it would cause no burden to the employer. In practice, this means, for example, that if you are a manager assigned to work on Sunday, you have the right to ask another manager to cover for you, but your employer is not obligated to require another manager to cover for you. And if you don’t come to work because you were attending church, in most cases it’s going to be perfectly legal for the employer to discipline you for that.
‘You seem to be of the view that it is acceptable for your employer (not certain where you think this falls on the state scale but if the government is not prohibiting it then it is permitting the discriminatory action to take place with a similar result. ie you are treated in a negative manner as a result of the exercise of your religious beliefs) to sanction you for supporting the “no to same-sex marriage” position, which would appear to be a restriction on acting in accordance with your religious beliefs.
‘However, what if you felt that it was necessary for you to act in accordance with your beliefs by helping out at the local foodbank or advocating, either vocally or with your pocketbook, in favor of enhanced government benefits for the less fortunate but your employer felt that such behavior contributed to the shiftlessness of society and consequently felt it necessary to sanction any employee who acted in such a manner? That doesn’t seem to be appreciably different than the “no to same-sex marriage” action except that one is currently politically correct and other is not. Would you be of the same view that it is acceptable for your employer to sanction you and the government to permit him to do so in that case? What if you were a Muslim advocating publicly for prayer rooms and prayer rights for Muslims at your workplace?’
That first sentence is a doozy, but I think I follow you. Again, Sam can answer for himself, but I guess it depends what you mean by “acceptable.” If you are asking whether it is a nice thing to do for an employer to take adverse action against an employee for violating a work rule against speaking out against same sex marriage, the answer is, no. If you asking whether it’s legal, the answer is, in most cases, yes. If you’re asking whether it violates that person’s religious freedom, the answer is no. Changing the hypothetical to supporting private charity or government welfare doesn’t change the answer.
The Muslim hypothetical isn’t clear to me. If you are disciplined solely for asking the employer to make a space available for prayer, that would likely be a violation of Title VII, but the denial of that request, if it granting it would place more than a de minimis burden on the employer, is most likely not going to be considered discriminatory action under Title VII.
You seem to be lumping them in together as basically the same, because they lead to “a similar result,” but keep in mind that the government discrimination against a religion and the government not providing a remedy for private citizens discriminating against a religion are two very different things.
These seem like distinctions that won’t make a whit of difference to the average member, but ones that Mormon lawyers might find interesting.
Ojisan, I agree with everything that JKC said. I’m not, for instance, saying it’s laudable for your employer to fire you because you vocally oppose same-sex marriage, but I am saying that doing so isn’t necessarily an infringement on freedom of religion. (For instance, when I clerked for a federal judge, we were told in no uncertain terms that, for judicial ethics purposes, we were forbidden from endorsing candidates or otherwise supporting or opposing political issues. In that case, financial support for or against same-sex marriage, Donald Trump, or Bernie Sanders would have violated the terms of my employment, but that wouldn’t have been an infringement on my religious liberty.)
As for the tax exemption thing, I’m not in the mood to get into that again. Basically, if your argument is that all bets are off the table, and anything could happen, with no respect to incentives, history, or law, there’s no interesting discussion to have. Sure it could happen, but the Kree could also take over. If you want to argue that churches will lose their exemptions, you need to make an affirmative case for it; I’ve made (here, but especially in other posts) my argument that it won’t.
That said, don’t bother here. That’s not the point of this discussion.
And jimbob, the average member may not consider these distinctions interesting. But they’re important, and to the extent we care about religious liberty (and I, for one, do), we should care enough to figure out the subtle and not-so-subtle distinctions.
“I’m not, for instance, saying it’s laudable for your employer to fire you because you vocally oppose same-sex marriage, but I am saying that doing so isn’t necessarily an infringement on freedom of religion. (For instance, when I clerked for a federal judge, we were told in no uncertain terms that, for judicial ethics purposes, we were forbidden from endorsing candidates or otherwise supporting or opposing political issues. In that case, financial support for or against same-sex marriage, Donald Trump, or Bernie Sanders would have violated the terms of my employment, but that wouldn’t have been an infringement on my religious liberty.)”
Most people would agree that there are some very unique exceptions worth carving out such as government offices, interest group employment, etc. (e.g. donating to an pro-choice group when you are working for a pro-life group, donating to Dehlin when you are working for the Church), but the most germane question most people are worried about is whether a for-profit business could simply fire somebody for making a private interest-group donation.You directly said above that somebody should not be able to be legally fired for a donation to planned parenthood, but are now saying that donating against same-sex marriage should be legally protected grounds for firing (and since you explicitly invoked “the market,” I assume that this covers the for-profit sector), so I’m still trying to figure out how both of those stances are consistent, otherwise it sounds like your are basically trying to thread the needle to keep the door open for SJW mobs to destroy somebody’s livelihood, while not allowing Jim’s Tires to fire their saleswoman for making a private donation to the Society Against the Burning of Small Puppies.
“You directly said above that somebody should not be able to be legally fired for a donation to planned parenthood”
I think you should go back and read again, Tiberius. He didn’t say that. He said if they were fired for that reason it would not violate their religious freedom.
“…we should care enough to figure out the subtle and not-so-subtle distinctions.”
Sure. But this is the New Era you’re talking about, not a law review article. My experience is that a number of practicing lawyers don’t actually understand your distinctions, and I often litigate on the periphery of these issues. If it’s only the erudite lawyers who get to be able to have a say, even when the effects of religious freedom issues are actually experienced more acutely by the average citizen, then I think we’ve got a problem.
It’s like the episode of the Foodies episode of the Simpsons:
Foodie friend of Comic Book Guy: *We’re* the ones that discovered Korean Barbecue.
Lisa: Really? *Before* the Koreans?
Foodie friend: Oh sure, they cook it. But they don’t get it.
@ JKC: Fair enough; if he thinks somebody should be able to be fired from their Walmart job because they made a private donation to the ACLU, then at least he’s being consistent.
As another litigator, though, jimbob, “a number of practicing lawyers” isn’t a great guide. I know a lot of lawyers–even some very successful ones–that don’t seem to grasp basic legal principles. I don’t think the distinctions Sam is talking about are particularly hard to understand. Unfamiliar to a layperson confronting them for the first time, sure, unintuitive, maybe, but not so subtle that you need three years of law school to understand them.
True dat, jimbob. And lawyers wonder why no one likes them, especially ones who think the law is something other than what a culture says it is at a given point in time. The church knows that the distinction between public and private religious freedom is a distinction without a difference when it comes to their objectives.
Oh, and the Title VII religious discrimination case law is not accurately represented in this thread. I would offer links, but I don’t want to risk getting moderated.
Amen Serena. I think you could say the New Era article promotes standing up to people, to companies, and to the government for religious liberties. And even if it’s a private company that is discriminating against a Christian employee, as a member of a protected class, she merits protection by the government.
Listen, this is a blog, so I’m not being as careful in describing the case law as I would were I writing a brief, but I think what I’ve said is accurate. If you don’t, you could just explain where I went wrong, with or without links.
I know I’m a bit late to the conversation. My biggest issue with this New Era article (and frankly, all of the religious freedom rhetoric coming from the church lately) is that it ignores the complexity of what religious freedom entails in real life. For example, in the article it complains that your kids may have to learn things in public school that aren’t in line with the teachings of your religion. To require public schools to only teach things that are in line with every religion that is out there would render those schools utterly useless. Not to mention it is absolutely impossible to teach in a way to please every belief since many of them directly contradict each other. Also, arguing that it would impede religious freedom if you were fired from your job for your religious beliefs while later arguing that it would impede religious freedom if the Church isn’t allowed to fire people for their religious beliefs makes it clear that not everyone can have complete 100% religious freedom at all times. Clearly there needs to be a line drawn somewhere of when it’s ok to fire someone for their religious beliefs and when it’s not.
Religious beliefs often step on each other and on other rights. It is a delicate balance to allow people religious freedom without impeding the basic rights of other citizens. It isn’t just some group of evil people out there who are in cahoots with Satan who are trying to steal all the religious freedom. Instead, the people who threaten our religious freedom are often doing so in pursuit of their own religious freedom. If we can’t learn to compromise and give on some of these issues then we are just as guilty of destroying religious freedom.
Also this list is extremely Mormoncentric. If we really believe in defending religious freedom for all, there should be some items on this list that don’t apply to Mormons.
Lastly, as to the legal vs social issue: Many items on this list have been perpetrated by the Church against different groups of people in my lifetime. As far as I know all of those things have been held up as legal and I would imagine most church members would argue that makes it ok for the church to do it. If the Church wants its members to fight for religious freedom, shouldn’t it be refraining from hindering the religious freedom of religious minorities in Utah?
Sam Brunson at 10:26 am
The point of your post was the tenor of the article. My points related to why the tenor may not be consistent with how you viewed the issue.
1. Your view of religious freedom is that it extends only to belief. Therefore if an action does not impact your right to believe it does not constitute a restriction on your freedom of religion. Others have a different interpretation. Their view of religious freedom extends to the right to act in accordance with their religious views. Thus they see the government taking action in the wedding cake case and the marriage license case and they see the government taking steps to restrict their freedom of religion. This differing view will lead them to a different analysis of the current situation and possible impacts in the future.
2. You raised the exemption point in expressing your annoyance with the unlikely and impossible being part of the discussion. However, any conclusion on what is likely or unlikely or impossible is based on personal analysis. As hard as it may be to believe, no matter how many times you say it or how definitively you try to say it your view as to what is unlikely or impossible is nothing more than your opinion based on debatable reasoning. Therefore impossible or unlikely may be viewed differently by someone else and this differing view point will be reflected in any article written by that individual.
3. The intent was not to debate the exemption point with you although I would be happy to do so anytime. The point was to simply point out that the analysis is not as cut and dried as you would like everyone to think. It is however, amusing that you wrote a lengthy footnote on something that wasn’t the point of the discussion.
“Your view of religious freedom is that it extends only to belief. Therefore if an action does not impact your right to believe it does not constitute a restriction on your freedom of religion.”
I think you’re oversimplifying Sam’s position, Ojisan. It’s not as simple as a choice between whether religious freedom protects religious belief only or whether it protects action motivated by religious belief; it’s a question of where you draw the line.
Surely you would agree that not all actions motivated by religious belief should be protected from prosecution or other government action. Take someone who has a religious belief in human sacrifice. I think we would have no trouble agreeing that religious freedom would not create an exemption from laws against murder and manslaughter, or protect from civil liability in a wrongful death suit. Why not? Because the right to life trumps the right to religious freedom. So it’s not a question of whether action is protected, it’s a question of line-drawing.
Your also missing Sam’s point about the difference between private action and government action. Take a customer who chooses to organize a boycott against a business because he is bigoted against the owner’s religion. Even though that action is discriminatory, potentially damaging to the owner’s livelihood, and potentially immoral, it does not violate the owner’s legal rights to religious freedom. The legal right to religious freedom doesn’t protect us against private discrimination in the choice of where to shop, because we don’t have a right to anybody’s business. Would you take the position that the government should be able to take action against the boycott organizer?
Ojisan, while I appreciate your explaining to me what my view of religious freedom is, I’d appreciate it more if you got it right. I deliberately didn’t talk about the wedding cake case, and I’m pretty sure you don’t know my take on it.
You want to talk about exemptions? Okay. Here’s my analysis: you’re basically arguing that the public policy rule will eventually allow the IRS to revoke churches’ tax exemptions. The thing is, the public policy rule has been invoked almost exclusively to revoke exemptions of schools that discriminate on the basis of race. Two were religiously-affiliated schools. It has been used a couple times to deny an organization that wasn’t racially discriminatory (for example, a group that advocated violent anti-war protest and an organization that advocated for polygamy) its exemption, but that’s not a terribly relevant consideration, since the law doesn’t require churches to apply for tax exemption.
It’s never been used to revoke a church’s exemption. Moreover, there are a ton of hoops that the IRS has to jump through to audit a church, hoops that take an incredible amount of time and effort, that significantly limit the scope of their audit, and that give political appointees a significant amount of control over the audit.
Sure, Fred Karger might want the IRS to revoke the church’s exemption. But guess what: he lacks standing to do it. He can write a nasty letter, but that’s all he can do to force the IRS’s hand.
Did you follow the Lois Lerner thing over the last couple years? The IRS EO department is gun-shy to address tax-exempts at all, and especially to make unpopular determinations. There is no benefit to the IRS of revoking a church’s exemption—it won’t result in additional revenue to the government, it will take a ton of work from an overworked and underfunded agency, and it will lead almost inevitably to Congressional hearings.
So history, law, and incentives say it won’t happen. What do you have to counter that?
JKC–ding ding ding. Just as the First Amendment protects speech from the government, but not private entities, so too does it protect religion from the government, but not private entities. Of course, there are exceptions–after all, the 1st does not allow people to yell “fire” in a crowded theater without repercussions–but in general the rule should be enforced broadly.
So, for example, if a bakery refuses to bake a cake for a gay wedding because of their religious beilefs, they should be allowed to do so; and their customer base would be equally permitted to boycott the bakery.
On the other hand, allowing (for example) pharmacists to refuse to fill certain scrips because of religious beliefs is more complicated, since it is a public health issue.
“So, for example, if a bakery refuses to bake a cake for a gay wedding because of their religious beilefs, they should be allowed to do so; and their customer base would be equally permitted to boycott the bakery.”
Nepos, the analysis is potentially a little more complicated that. Civil rights law provides some additional protection for certain protected classes. So, for example, if you’re a landlord, you can’t discriminate against me because I have children, or because of my race. Similarly, I’m pretty sure (though it’s not my area, so I’m not 100% sure) the bakery would violate civil rights laws if it refused to serve African American customers. From a policy perspective, it makes sense to provide additional protections to classes of people who may not wield power.
Does that extend to sexuality? Several courts have held that it does. I’m not going to opine on that, though, since, unlike the tax law, I haven’t spent enough time on it to make a solid case one way or the other,
In a nutshell here’s why I think the New Era article stinks: it’s unhelpful.
At a time and place in world history in which we ought to celebrate and promote the spread of our enormous religious freedom, I don’t see how it benefits us to ominously warn each other “what’s at risk.”
We could use less alarmism and more of President Hinckley’s perspective and positivity.
“First Amendment protects speech from the government, but not private entities, so too does it protect religion from the government, but not private entities. Of course, there are exceptions–after all, the 1st does not allow people to yell “fire” in a crowded theater without repercussions–but in general the rule should be enforced broadly.
So, for example, if a bakery refuses to bake a cake for a gay wedding because of their religious beilefs, they should be allowed to do so; and their customer base would be equally permitted to boycott the bakery.”
Not quite. The free speech analogy is intuitively appealing, but that’s not how it works. The way the first amendment test works now, basically, is that if its a neutral law that applies to everyone generally and doesn’t target religion, it’s valid under the first amendment, even if it has the effect of punishing religious activity. If it does target religion, even then it can be upheld if necessary to advance a compelling state interest. So in other words, the First Amendment does not “protect religion from government;” it protects religion from specifically being targeted, in most cases, but doesn’t protect religion from the effect of neutral laws that apply regardless of religion. And you can thank 1990s conservatism for that (with a nice assist from 1870s conservatism).
So in the wedding cake example, the first amendment doesn’t protect a business owner from an anti-discrimination law that applies generally and does not single out religiously motivated discrimination.
Sam (and JKC): I think you were all right to stay away from wedding cakes in the first place. But since it’s an example of the “hard cases” that I referred to way up above (that we need to talk about but probably not in the New Era), let me offer up my simplifying (or maybe complicating?) examples:
Q1. Is it OK for a railroad or bus to refuse passage to a gay couple (or black couple, or mixed race couple)?
A1: No (by law) without regard to the religious preferences of the owner or driver.
A1: In my experience most people agree
Q2: Is it OK for a hotel to refuse to rent to a gay couple/black couple/mixed couple?
A2: No.
A2: Most people today would agree, although Jim Crow laws were enforced in some areas until as recently as 1965.
Q3. Is it OK for a multi-unit apartment building to refuse to rent to a gay couple/black couple/mixed couple?
A3: Generally no, regardless of religious belief (although anti-discrimination laws are not consistent about sexual orientation).
A3: In my experience most people agree in general, and then stop to think about possible exceptions such as (in a Mormon context) BYU married student housing. Also Airbnb and like services have apparently re-opened discussion about line-drawing in this area.
Q4: Is it OK for a private homeowner to refuse to rent a room in her own home to a gay couple?
A4: Generally yes, it is not unlawful to discriminate in this way.
A4: I believe that a significant majority of us agree. Even a significant majority of liberals/progressives/[pick your term]. That is, I might think such a person is obnoxious and I want nothing to do with them as a neighbor or friend (and I’m permitted to shun them under our secular laws, no matter what Christ might have to say about it), but other than refusing the next dinner invitation there’s nothing I can or will do about it, as a legal matter.
Now with that range in mind, is baking a cake more like a bus ticket or a room? And is it more like a room in a hotel, or in a quasi-public apartment building, or in your home? Does it matter whether I bake in my kitchen at home or out of a store front on Main street? Does it matter if I bake select pastries from Czechoslovakia for an elite customer base or general baked goods for (almost all) comers? What if I also distribute breads and cakes to restaurants in the area that are also commercial establishments?
You guys ever hear the joke about the five lawyers who got together and read an article in a young adult magazine?
I don’t know, Christian. It seems to me that the difference between the bus ticket, public accommodations and housing on the one hand and renting a room in one’s own home has less to do with the reach of a right to religious liberty and more to do with the scope of anti-discrimination laws. That is, it’s not that renting a room in your house is protected by a right to religious freedom, it’s just that the anti-discrimination laws don’t reach it in the first place.
I agree that it’s a potentially sticky question, and one that requires the court or agency making that determination to consider the questions you as in your last paragraph, but I don’t think it’s a religious freedom question as much as it is a question about the reach of anti-discrimination laws. It’s only after that reach is determined that religious liberty comes into play, I think. And if the anti-discrimination law doesn’t single out religiously motivated discrimination, then it’s valid. I mean, the Supreme Court could always change the law, but based on the cases as they exist now, as I read them, that’s the religious liberty question under the first amendment: (1) Does the anti-discrimination law single out religion? If no, game over. If yes, then (2) Is it is the least restrictive means to accomplish a compelling state interest? If yes, game over. If no, then your religiously motivated discrimination is protected.
I think there are thorny and interesting discussions to be had over whether a state interest in eradicating discrimination on the basis of sexual orientation is compelling, and if so, whether there is a way to accomplish that interest while exempting religiously motivated discrimination on the basis of sexual orientation, but under my reading of the cases, we don’t even get to those questions under the first amendment because anti-discrimination laws, generally speaking, do not single out religiously motivated discrimination for special punishment. They don’t distinguish at all between religiously motivated discrimination and mere bigotry. So under Scalia’s theory that the Court accepted in Smith, they are valid.
JKC: The distinction between what anti-discrimination laws reach and what they could reach is, in my opinion, dipping too deeply into lawyers talking to each other to take up further here. We’re already pretty deep in those weeds. I don’t disagree with you . . . except that I do sort of disagree or at least would want to argue, when it is fairly clear to me that anti-discrimination legislation is drafted and argued, and the cases are drawn up and argued, with First Amendment and other Constitutional limits in mind all along the way.
For this forum I only want to make the point that the real stuff is hard. That the casual “isn’t it obvious!” comments are almost always wrong, on every side.
“That the casual “isn’t it obvious!” comments are almost always wrong, on every side.”
That’s the truth!
And this is why it is hard to write a responsible article for a church magazine on this subject. “Isn’t it obvious!” is the direct way to rouse people to take political action, which is what the New Era article seems to be encouraging. But on this issue, “Isn’t it obvious!” is wrong because it’s always too simple, and therefore it is likely to cause misdirected action and corrosive, spurious divisions.
I’m not convinced that Sam’s suggestion to distinguish between private action and state action would significantly improve the New Era article. This comment thread demonstrates, perhaps, that making that distinction leads mostly to muttered curses about lawyers. However, it was worth a try, and it’s worth it to keep trying. Assuming that the general authorities are right to be concerned about religious freedom issues, we need intelligent, measured action, and the New Era article is unlikely to produce that kind of response.
The notion that religious freedom is not at serious risk, that law and culture on this matter are not thoroughly intertwined, and that concerns about religious freedom are extreme alarmist rhetoric (in the words of one comment) is shockingly naive, insensitive, and insular.
The Church is a world church with a commission to reach and teach all nations (Matthew 28:19). The transcendent and inalienable right of religious freedom is necessary to fulfill that commission. Yet vast swaths of the world, encompassing billions of people, have religious freedom in name only. In the Middle East conditions have reached truly genocidal proportions. You would never suspect that from the original post. You would never know how rare religious freedom is in history from the original post.
Documenting the egregious persecution of Christians and other faiths could easily reach book-length proportions. To keep this comment short, I will document the sorry state of religious freedom in some of the largest and most populous regions of the world, hoping that documenting the case by providing links to sources will not get my comment summarily censored. [links have since been removed to get past the BCC censors]
The Middle East: The genocidal conditions for Christians in the Middle East has been widely reported. Lest anyone think this is purely from right-wing sources, here is a link from the New York Times: [link removed see below]
The Wilson Center has analyzed the Middle East and North Africa on a country by country basis. In many cases the national constitution provides for religious freedom, but in practice that freedom is restricted by legal or other means. Sometimes this means some believers must keep a “low profile due to concerns for their personal safety and potential legal and social problems.” Sometimes it means there is a climate where they can by attacked impunity. You can read the report here: [link removed, see below]
Russia: Despite constitutional guarantees of freedom of religion, there is a frightening crackdown on the Jehovah’s Witnesses, which sends a unnerving message to all vulnerable churches. This has been well documented, but Newsweek has recently reported on a wave of “violence and intimidation with no protection from the police.” You can read that story here: [link removed, see below]
India, the world’s largest democracy, has constitutional guarantees of religious freedom. Yet the U.S. State Department (2015) documents anti-conversion laws and “religiously motivated violence or other animus” followed by police inaction. You can read about the “religiously motivated killings, assaults, riots, coerced religious conversions, discrimination, and vandalism” here: [link removed, see below]
The State Department report on the severe restrictions on religious freedom in China, affecting Muslims, Buddhists, and Christians, can be found here: [link removed, see below]
Barnabas Aid is a worldwide organization that monitors persecuted churches. I will let the reader google up their eye-opening reports.
Neither written constitutional guarantees (in many of the above cases) nor democracy (in the case of India) provided a fire break against assaults on religious freedom. When you are being attacked with impunity or discriminated against or forced to keep you head down, it is difficult to untangle private from state actions and social norms from the law. None of those so attacked would appreciate the story of the boy who cried wolf.
When your neighbor’s house is being attacked by a wolf, when the attacks have reached a genocidal stage, when children are being devoured by the wolf, and when we have so little power against the persecutors except for prayer, a post with the title the original post is simply heartless.
Documenting links available on request and have been removed to avoid the BCC filters.
Having reviewed the truly dismaying, frightening, and often violent attacks on religious freedom in much of the world outside of the West, I now turn to Europe, Australia, and Canada. In a third comment I will later address the situation in the U.S.
The history of almost every European country is replete with attacks on religious freedom going back many centuries and still continuing. The rise of anti-semitism within living memory of the Holocaust is particularly disheartening. Jews, their synagogues, and their cemeteries have been brutally and wantonly attacked. Accordingly, many Jews are fleeing Europe for Israel, making the remaining European Jews more isolated and vulnerable. Some governments have been particularly insensitive to Jewish and Muslim believers. Belgium’s largest region has recently voted to ban kosher and halal slaughtering practices, a measure the European Jewish Congress called “scandalous.” In 2012 the Cologne regional appellate court made male circumcision a criminal offense within its jurisdiction. After much outrage, the decision was rescinded by the passage of a new law, but the callous lack of concern for Jews and Muslims by the court, particularly given Germanys’ history, was shocking. Nor are Christians exempt from threats to their religious liberty in Europe. A British student was recently expelled from a two-year social work course for expressing traditional views on sexual morality on Facebook. The case is now before the courts. British teachers and students are subject to “British values” inspections, a term of considerable vagueness and plasticity that has rightfully alarmed Christians, Jews, and Muslims.
In Australia the Catholic Archbishop of Hobart was forced to defend himself and his church for teaching Catholic doctrine in Catholic schools after a complaint to the Tasmanian Anti-Discrimination Commission. While the complaint was eventually dropped, merely having to defend oneself when hauled before such a tribunal has a chilling effect on freedom of speech and religion and provides an obvious way to harass and financially burden churches with legal costs. The Sydney Morning Herald and Daily Telegraph (AU), among others, have been calling for an end to church tax exemptions. According to at least one poll, two-thirds of Australians agree, while just a a quarter disagree.
In Canada serious proposals have been floated in Quebec to ban religious garb (kippa, turban, cross, hijab, etc.) in schools and government offices. Mennonites (once prohibited from immigrating to Canada) have left Quebec over a government crackdown on their schools. A Canadian law school is still having to fight for accreditation because of its covenant of faith. Catholic physicians and medical workers in Canada are particularly concerned about being forced to be complicit in euthanasia and abortion in view of Canada’s failure to pass conscience protection legislation for medical professionals. Note that one historically common way to marginalize a religion is to force its adherents out of important professions.
These are just of few of the continuing threats to religious freedom in Europe, Australia, and Canada. I refer to reader to Hugh Latimer’s sermon of the plough.
Documenting links available on request. I would think that if we wanted an intelligent discussion, links to the original sources would be welcomed and encouraged, not blocked by a filter.
Those interested in a measured and serious series of articles on religious freedom from a global perspective would be well advised to check out the on-going seven-part series in the Mormon Newsroom. I won’t provide links to avoid the BCC filter. I wonder how many BCC readers have read these essays.
Thanks Leo for your take on what religious freedom worldwide should look like from a US-centric point of view.
Viewing world history, it is easy to document that religious freedom is the rare exception to history’s rule, not history’s norm. When is comes to religious liberty, history is full of things we might have previously thought unlikely or impossible. Who, for example, in 1900 foresaw the Armenian genocide? Who, even after that, foresaw the Holocaust?
Even in the U.S., curtailment of religious freedom by legal or illegal measures, often accompanied by violence, has a long history, the Bill of Rights notwithstanding. Catholics, Jews, Latter-day Saints, and Jehovah’s Witnesses can all testify to that. The notion that new and more sophisticated assaults on religion “can’t happen here,” would be naive in the extreme considering what has repeatedly happened here with many denominations and faith traditions and over long periods of time.
Nor are threats to religious freedom in the U.S. a thing of the past.
The ADL has reported for multiple years running a dramatic increase in violent anti-Semitic assaults and a near doubling of anti-semitic incidents on American college campuses. As one editorial headline put it,”Rampant Anti-Semitism Foreshadows Danger for All.”
The FBI reports anti-Muslim attacks, both physical attacks and anti-Muslim threats and intimidation, have spiked to levels not seen since the immediate aftermath of 9/11. Almost three-fifths of Americans say there is “a lot” of discrimination against Muslims in the U.S., with over three-quarters saying that the discrimination is increasing. An Al Jazeera headline opined, “Anti-Muslim violence spiraling out of control in America.”
It is politically correct to notice such attacks (and Sam to his credit does, though in my opinion he woefully underestimates the existential threat from such attacks), but it is not so correct to see the threats to other groups or to repeat the warnings of legal threats to religious freedom by Rabbi Lord Sacks. But those more subtle legal and cultural threats are woven from the same cloth as the more obvious ones. If we just point to the most obvious threats, we miss the true picture. Sam’s solutions (lawsuits and being better neighbors) miss the mark. Anti-Semitic violence is already illegal, and law enforcement agencies are already trying hard to prevent and prosecute such crimes. More lawsuits aren’t a promising solution. And asking Jews to be “better neighbors” is cruelly insensitive. The answer lies in addressing the culture, a culture that is increasingly actively hostile to religion.
Sometimes lawsuits are a solution, as when the Becket Fund successfully fought the federal government over the seizure of eagle feathers used by Native Americans in religious ceremonies. The victims of that governmental religious persecution did not have the deep pockets to fight the government and would have been crushed had not the Becket Fund taken up their cause, and being a small group, few people even knew of their plight.
Latter-day Saints who follow the reader comments in the Salt Lake Tribune on any story involving the Church are aware of the vitriol that would rouse the ADL and CAIR to very deep levels of concern if those remarks were directed against Jews or Muslims.
As for Catholicism, I refer the reader to the book The New Anti-Catholicism by distinguished religious historian Philip Jenkins subtitled The Last Acceptable Prejudice. The book’s publisher, Oxford University Press, describes the book as “a scathing account of anti-Catholicism in modern American—in our politics, the media, the entertainment industry, and academia.” Such prejudice didn’t make Sam’s list of easy to find cases because rampant anti-Catholic prejudice is often invisible to those not attuned to it and it is not so politically correct to notice it. It is not without reason that Cardinal George was concerned that his successors will die in prison or as martyrs. He may or may not be correct in his prophecy, but he is undoubtedly correct that anti-Catholicism has poisoned public and private discourse.
First Things, a learned Catholic journal, has recently highlighted a serious and growing campaign that would effectively drive pro-life Catholics out of the medical profession. Since giving links runs afoul of BCC’s filters, I refer the reader to the May 12th article by Wesley J. Smith. As I noted previously, keeping a religious group out of influential professions is an old anti-religious and anti-Catholic tactic. I previously noted Canada’s failure to pass conscience protection for physicians and medical workers. American Catholics may soon be similarly vulnerable.
The solution to such prejudice is not as simple as “becoming a better neighbor,” unless you are into blaming the victim. Often the victims of religious violence and prejudice are quiet, winsome, mild-mannered, and irenic, and they are often branded as haters and bigots. I know because I have met some.
The deep problem, which the original post does not address or even see, is a culture that is increasing hostile to religion, especially conservative or orthodox religion. The Overton Window has been steadily shifting against values held by conservative or orthodox religious groups. Those who follow the news know that careers and livelihoods have been destroyed by the shift in the Overton Window. Ruining just a few people can force many to keep their heads down, just as burning a few heretics encouraged other potential dissenters to keep a low profile. Styling ruining careers as necessary to protect free speech absurdly stands the matter on its head, i.e., we fired you for voicing an unpopular opinion in order to protect free speech.
Rod Dreher has coined “The Law of Merited Impossibility.” I invite the reader to google it up since BCC doesn’t like links. Dreher’s Law states that Christian concerns over religious liberty are completely absurd (the stuff of Marvel comics), nevertheless those Christians will completely deserve what they are soon going to get. I found Sam’s ominous comment about not shielding people from the consequences of their actions particularly chilling in this regard.
Note that denial of church tax exemptions may be motivated by anti-religious cultural shifts as well as by a search for more state revenues. Henry VIII’s plundering of the abbeys shows there are many excuses for attacking churches. See also Gaylor v. Lew.
The solution is a change in the culture that recognizes religious freedom as a transcendent and inalienable right that is frequently trampled upon. The solution is a culture that recognizes the law and social norms are intertwined. It could hardly be otherwise The solution is recognizing that the repeated denial of religious freedom is the stuff of history and current events, not science fiction.
The solution is also to recognize that to view the problem purely through a secular or legal lens is wrong-headed and strangely silent on the Biblical teaching shared by many faiths that there is at the deepest level a cosmic battle between good and evil and that the faithful can and should expect religious persecution (Matt. 5:11-12, John 15:18-20, etc.).
“The Overton Window has been steadily shifting against values held by conservative or orthodox religious groups.”
Leo,
If by this you mean that conservative and orthodox religious groups (whatever that means) are unable to legally enforce the restrictions they impose on themselves on unbelievers, then I don’t have a problem with that. I don’t want Orthodox Jews to tell me what to do with my bacon, just as they don’t want me to tell them what to do with their wine. It seems to me that the onus is shifting to individual “conservative or orthodox” religions to provide sufficient incentive within the religion to encourage participation in their by-laws by adherents; if they cannot do that without the help of a necessarily secular government, then there are deeper flaws in their worship that cannot be addressed legally. And if adherents dislike interaction with wider society, with its secular focus providing a level religious-freedom playing field, they will probably withdraw into closed societies, like the Benedict option that Rod Dreher proposes or like the post-visitation Nephites did with the self-proclaimed Lamanites in 4th Nephi. That’s never great, but, in accepting religious freedom, we allow people to withdraw from society if that is what their religion and conscience dictates. So long as they keep paying taxes, of course. :)
Leo, you’ll note, I hope, that I largely agree with your characterization of attacks on religious liberty. (I can’t say 100%, because I just skimmed your comments.) And if the article had used those as examples of infringements on religious liberty, I’d have no qualms with it. (In fact, I mentioned France and Russia as examples that would work in the OP.)
Unfortunately, those weren’t the examples the un-bylined New Era article went with, and its choice of examples, as I said, are s mess.
So yes, there are legit threats to religious liberty, and we as ZMormons and we as people should be aware of them. But if we actually want to convince others, we need to be able to understand what those threats are, and not claim that any hypothetical thing that may or may not happen infringes on our religious liberty.
Leo, get over it.
Ok, Leo, given that you’re looking at Gaylor v. Lew as an example of government attacking religion, I’m going to retroactively change my assessment of your examples. Because Gaylor v. Lew (a) did not involve government action, (b) had nothing to do with church exemption from tax, and (c) was ultimately dismissed for lack of standing. If you consider a(n unfruitful) private challenge to a tax subsidy to a federal housing subsidy available only to ministers to be an example of an attack on religious liberty, I’m afraid your definition goes way beyond anything that I can get behind.
Finally had a chance to check back, and whoops! Turns out I should’ve consulted the Google first. Well, at least my post gave the experts a chance to correct my “intuitively appealing” but completely wrong post.
I notice that in the appeal for one of the bakers who refused to make a gay wedding cake, the defense claimed that it was the message of the cake, not the cake itself, that the baker objected to. It seems like that would be a freedom of speech rather than freedom of religion issue–and are cakes a medium of expression?–but I couldn’t find anything about how the court ruled on that argument.
Nepos, I’ve actually been following the Masterpiece Cakeshop case in Colorado because it interests me. They raised the free speech argument from the beginning, arguing that the government was compelling them to “speak” a message they did not agree with.
The Colorado HR commission considered the argument, but rejected it because they categorically refused to bake the cake at all without any discussion of what words, if any would appear on the cake. Basically, while the words on the cake might be considered speech, they didn’t actually decide that point because the cakeshop was only arguing that making the cake itself was the message, and the commission found that the act of preparing a cake is not “speech” within the meaning of the first amendment.
The Colorado Court of appeals basically adopted the same reasoning, but also added that the only thing the government is compelling is to not discriminate on the basis of sexual orientation, so they aren’t forced to bake the cake because they have a choice to just get out the business if they aren’t willing to comply with the law regulating that business. They also said that reasonable people wouldn’t see the cake as the baker expressing a pro-same-sex marriage message, and to the extent that they saw the cake as expressing a celebration of same-sex marriage, they would attribute that message to the customer, not the baker. In other words, the baker is only “the conduit” for the message, not one actually speaking the message. They also said that nothing prevents the bakers from posting a disclaimer that providing cakes for same-sex weddings is not an endorsement of same-sex marriage or otherwise promoting their views against same-sex marriage. (Here’s a link to the opinion: https://www.aclu.org/legal-document/craig-v-masterpiece-opinion).
The Colorado Supreme Court declined to hear the case, and the U.S. Supreme Court is taking an unusually long time deciding whether it will hear it or not, so there’s no word yet from the U.S. Supreme Court.
Dear Sam: I happen to know many of the people who work at church magazines. They do fine work. I am encouraged that are trying to help our youth understand these critical issues. Instead of whining from the Bloggernacle “cry room,” why not try to your own guide for youth about religious freedom. However, for youth to get it you are going to have to skip your high-minded ivory tower words like “conflating” and “invidious.” It’s so easy for so many to be critics instead getting into the weeds and helping educating church members about these important issues.
Joel Campbell
BYU journalism
Graduate of Newseum Religious Freedom Center
JKC–Thanks for the update! That makes a lot of sense. I particularly like the part about the cake reflecting the views of the person who commissioned it, not the views of the baker; an obvious point, really.
Of course, the baker could have avoided the whole situation if he had just been polite. I mean, obviously, he could have baked the cake, but if he really didn’t want to do that, he could have come up with a reasonable excuse, recommended a different baker, etc. But he wanted them to know he was discriminating against them!
Joel Campbell–I suspect this wasn’t your intent, but suggesting that Mormon teenagers wouldn’t know the words “invidious” and “conflating” is pretty insulting to said teenagers, their parents, and their schools. While they may be uncommon words, their meaning is pretty easy to deduce even if you haven’t heard them before. Teenagers aren’t stupid.
Also, the remark about “ivory tower words” is rather amusing in light of your signature. I guess BYU faculty and students don’t use “high minded ivory tower words”? I’m pretty sure that’s not a compliment to BYU.