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Religious Tolerance logo

Religious freedom

Overview of religious freedom conflicts between the
U.S. Government, Courts, and individuals & groups.

Info on: The Coalition for the Free Exercise of Religion.

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About conflicts:

Conflicts continually arise between individuals, faith groups, the courts, and the government over religious freedom. Some common examples are:

  • Some religious groups teach that parents should not immunize children against childhood diseases. Others urge their members to use spiritual healing methods instead of medical science for themselves and their children. This conflicts with the state's interest in preserving public health by limiting the spread of diseases and preventing of child and infant deaths.

  • The Amish and some other religious groups are opposed to decorations and ornaments. This can conflict with the state's safety requirements that slow-moving vehicles display lights and signs.

  • A lumber interest might want to create a road through an area that Natives consider sacred. During the 1980's, the U.S. Supreme Court (SCOTUS) considered a number of such cases. A trend appeared in which the court appeared to give less importance to religious considerations.

  • In 2012, Health and Human Services issued new regulations that required companies that provide health insurance to include coverage for sterilization procedures and birth control medication in the plans without a copay. They were also required to charge the employer the same amount, irrespective of whether the employee chooses or does not choose to use the procedures. That way, the employer would not be paying additional amounts whenever the employee makes use of the coverage. Churches were exempt from this regulation. However, businesses, institutions and services run by faith groups were not exempt. Catholic hospitals, universities, schools, agencies, etc. who hired employees of different faiths -- and none -- would have to allow their employees to freely choose whether to use birth control or sterilization. Both practices violate Catholic Church teaching; however, they are very commonly used by their employees. One survey showed that 98% of Catholic women had used a medication or practice that the Church condemns.

    Allowing the employees to choose freely was viewed by the Church as a restriction on their religious freedom. It was viewed by many of the Church's employees as the freedom to act on their moral, ethical, and religious choices of action. More details.

  • During the early 2010's many lawsuits based on religious freedom resulted from conflicts between employees of conservative religious schools and and the employer. Some examples occurred when the individual:

    • Formed a loving, committed relationship with a person of the same-gender and later entered into a legal same-sex marriage; or

    • Were infertile, and were treated in a fertility clinic with an in-vitro fertilization procedure in order to conceive a child; or

    • Was a woman who performed the same work as males at the school, and yet was paid less in violation of the federal Equal Pay Act. The school maintained that their interpretations of the Bible caused them to believe that husbands must play the lead role in the family and were primarily responsible for financial support of their wives and children. Thus they concluded that men had need for a higher wage than did women.

In each case, conflict arose from religious beliefs, either by the employer, or employee, or both who felt that their religious freedom was being unjustly restricted.

Back in 1990, SCOTUS issued a very important decision in the case of Employment Division vs. Smith. It involved the right of an native American to follow his religious traditions and heritage which involved smoking an hallucinogenic substance. In deciding against the individual who launched the lawsuit, he court established a very important principle: that governments could burden (restrict) religious freedom, as long as the law was neutral and applied to all persons equally. Later, this decision prompted many lower courts to permit additional government restrictions on religious freedom.

Dozens of groups concerned with religious freedom were alarmed by the SCOTUS decision. They joined together to form a Coalition for the Free Exercise of Religion. Their goal was to reverse this gradual erosion of basic religious freedoms in the United States. In an unprecedented show of unanimity, organizations representing very diverse belief systems joined forces. The list includes some interesting pairings of groups:

bullet American Civil Liberties Union and the Traditional Values Coalition

bullet American Muslim Council and American Jewish Committee

bullet American Humanist Association and the Jesuit Social Ministries

bullet National Association of Evangelicals and the National Council of Churches

bullet Church of Jesus Christ of Latter-day Saints and the Unitarian Universalist Association

bullet and 56 other groups representing Christianity, humanism, Islam, Judaism, Native American spirituality, Scientology, secularism, Sikhism, Unitarian Universalism and various civil rights causes.

Partly as a result of pressure from the Coalition, the US Congress passed the Religious Freedom Restoration Act (RFRA) in late 1993. Overwhelming bipartisan support was shown. (Reference 42 U.S. Code 2000bb). Its key clauses are:

bullet3 (a) In General: Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).

bullet3 (b) Exception: Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person:

bullet (1) is in furtherance of a compelling governmental interest; and

bullet (2) is the least restrictive means of furthering that compelling governmental interest.

bullet5 (1) the term 'government' includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a subdivision of a State;

bullet5 (2) the term 'State' includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States;

In summary, the law stated that religious freedom shall not be limited except when a government can prove a "compelling interest" to do so. And then, the government must select a method that results in the least possible interference with religious freedoms of individuals, churches and other organizations. This is a very onerous burden on the government, and applies to many laws .

This law had a major influence in over a hundred court decisions since it was enacted late in 1993.

An interesting case (City of Boerne v. Flores, No. 95-2074) arose in 1996. It involved the Roman Catholic Archbishop of San Antonio, TX. The city of Boerne TX refused to issue a construction permit which would have allowed the church to expand into a historical district. The expansion was needed because of an increase in the size of the congregation. The church sued under the RFRA; the federal judge determined that the act was unconstitutional. It has since been reviewed by several appeals courts who have ruled the act constitutional. In mid October, 1996, the Supreme Court of the US agreed to rule on the case. They issued their ruling on 1997-JUN-25, declaring the law to be unconstitutional. The vote was 6 to 3. That vote was an exception to the usual 4 to 5 vote that is usually seen on cases related to religion, morality or ethics.

Congress will then consider a new RFRA-type bill that might guarantee religious rights while staying within constitutional boundaries. Senator Edward Kennedy (D, MA)said: "We cannot take this 'no' from the Supreme Court as the final answer." In the meantime, several states have passed a law very similar to the original RFRA which are probably also unconstitutional.

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Subsequent developments....

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