Today I fell into a bottomless pit of academic blogs about religious freedom, and I have a few still-not-really-developed thoughts that I want to try to parse out a bit.
Winnifred Fallers Sullivan is a major scholar in religious freedom, and she wrote a blog post last-year about religious freedom in the United States post-Smith. Decided in 1990, Employment Division v. Smith was the case that found that bans on peyote use didn’t infringe on Native American religious rights because the law was neutral and generally applicable rather than targeting Native Americans in a specifically discriminatory fashion. This overturned the past few decades of jurisprudence, which had tended to consider exemptions to for people who objected to laws for religious reasons, and was later overturned by Congress.
Sullivan notes that since Smith, there’s been a lot of efforts by churches to get recognition for their religious freedom as entities, rather than just as collections of individuals. She cites a case of a Lutheran school claiming the right to fire an elementary school teacher, but the Hobby Lobby case, or the many cases brought by Catholic charities, could be examples as well.
I’m not quite familiar enough with Religion Clause cases to say if I agree with the trend she’s seeing, but it was interesting to read alongside another article she wrote in two years earlier, in 2011, called “We are All Religious Now, Again” In it, she described how seriously disestablished American religion is – we have MUCH less government supervision of religion than other countries, but we also have much less of a history of institutional church authority. Our religious history is by and large Protestants who, if they didn’t like what the minister was saying, would go off and found their own church – religious authority is highly individual for us, and the success or failure of a religion is based on voluntary participation.
So this leads to two sort of peculiar circumstances legally. On the one hand, because individual belief is the defining factor of religion, federal courts have pretty firmly stated that it’s not their job to decide what counts as religion and what doesn’t. The fact of feeling compelled by belief is enough to make a religious claim. That sort of explains why the court came to the decision it came to in Smith – if religious belief can’t be defined, then maybe the best you can do is try to make laws neutral rather than accommodating religion. This logic was challenged by Congress with the passage of the Religious Freedom Restoration Act, but that had the effect of putting defining religion in the hands of Congress, rather than the courts – Sullivan calls this the “deconstitutionalization” of religion, based on the fact that the Constitution and the courts aren’t necessarily the ones drawing the lines about the role of religion in society.
On the other hand, defining religions as voluntary and individual makes it hard for church institutions, which obviously want to exercise some authority over their congregants in order to continue existing. So it makes sense that Catholic institutions, for example, would fight so strongly against the relatively trivial costs imposed on them by the Affordable Care Act – they want some degree of sovereignty to shore up their institutions against the fact that people can come and go as they please without much commitment to doctrine.
Even though the number of “nones” has been rising in America (people who don’t claim affiliation to any particular faith,) Sullivan argues that all Americans (except some disgruntled atheists) are essentially religious, since for our purposes any given individual belief – mixed-and-matched, “spiritual but not religious,” whatever – counts. She also says that this religious-ness is a sort of American exceptionalism, defining our way of doing things in contrast to secular Europe. (I definitely see this point – I feel the need to point out my religious identity here way more than I do at home, since the default assumption seems to be that people aren’t religious.)
At this point I should conclude but I’m not sure I have a conclusion. What does it mean for religious freedom in society if religious institutions use the courts to shore up some authority in a highly individualized society? How do you talk about religious freedom for groups compared to religious freedom for idiosyncratic individual beliefs? Can you even come up with a workable legal answer, given how internally contradictory the court’s decisions on the First Amendment have been in the past sixty or so years?
(The answer to the last one is no, I’m pretty sure about that at least.)