Global Courant
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While Americans enjoy remarkable freedom to practice their faith, courts and legislatures struggle to balance competing rights claims. Politicians and the media regularly provide theatrical sound bites that fuel the culture wars and promote a false dichotomy between protecting religious freedom on the one hand and guaranteeing equality and other fundamental rights on the other.
It is not uncommon to hear the argument that according to religion each any kind of recognition or special treatment is nothing less than an unconstitutional establishment and/or a form of discrimination against the non-religious.
These arguments have practical implications for the everyday lives of millions, influencing everything from school choice and voucher programs, to regulations for faith-based foster care and adoption services, to birth control/abortion mandates, to the business decisions of close-knit corporations. The place of religion in public life will undoubtedly continue to play a major role in future elections.
The religious community must speak a language that even secularists can understand. (iStock)
Some arguments cannot be resolved and are destined to remain stubbornly partisan right-left issues. The protection of religion enshrined in the dual religion clauses of our First Amendment (no establishment and free exercise) should not be one of them.
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To move past the current tensions, the leaders of the wider faith community must reframe the argument and reset the national conversation – because if not them, then who? Legally, this is a two-step process involving both establishment and free exercise.
First, the religious community must focus on speaking in a language that everyone understand – even those secularists who disagree with our assumptions.
As an Orthodox rabbi, I absolutely believe that religion is important in itself. But instead of trying to explain Why religion is special (status), an impossible theological feat in a post-religious world, both our legal and PR efforts should focus on How religion is and has been proven to be beneficial to everyone, including the non-religious (its use).
If religion is beneficial to society as a whole, then benevolent treatment of it is nothing more than a neutral acknowledgment and appreciation of a particular medium that consistently and demonstrably delivers a large number of secular goods on a neutral and non-discriminatory basis. Given that premise, government support for religious education would be much less controversial, a permissible and practical way to support activities leading to public benefit.
Fortunately, the research here is undeniably telling. Numerous studies have confirmed that religious Americans tend to be more altruistic neighbors and more conscientious citizens than their non-religious counterparts.
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As Harvard (an institution originally founded as a Christian seminary I might add), sociologist Robert Putnam describes in his masterpiece “American Grace” (which was based on two of the most comprehensive studies ever conducted on religion and the public live in America). among all other demographics, involvement in religious organizations and religious networks remains one of the strongest predictors of philanthropic generosity, civic engagement, and community leadership that we have.
Arguably then, religion do provide certain quantifiable secular goods to the wider American society Why it can sometimes be given special treatment without violating anti-establishment norms.
Second, from a free exercise perspective, we must have confidence in and use the existing legal system. It’s been nine years since the Supreme Court released its ruling in Sebelius v. Hobby Lobby, which ruled that for-profit companies can refuse to provide certain contraceptive services in health plans offered to employees because doing so would violate owners’ certain Christian beliefs.
Reading most of the breathless articles published in the months leading up to the decision would have made you feel that a Hobby Lobby victory would allow religious groups to do whatever they want, turning America into a theocracy . Well, Hobby Lobby won, and American democracy is doing just fine.
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That’s because strict control is actually a framework for dealing with competing rights claims to workand its narrow, case-specific application is not factored into the culture war dynamics.
Under federal law, if there is genuine religious conviction involved, And there is a law that would place a substantial burden on that belief, the court asks whether the government has a compelling interest in enforcing that law to the detriment of that belief – or (as in Hobby Lobby’s case) whether there is maybe one other way to make sure everyone gets what they need.
The one thing Hobby Lobby proved was that even in the most controversial cases, there is often another way. Politicians don’t need to invent a new balancing test for religious freedom; we have one and it works.
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And so, if the religious community is to succeed in winning opinions and not just in matters (and even after a victory, to avoid the prospect of appearing in court every time its ideological inclination changes), we must make it clear that there is no “us” versus “them” here. All that framework does is further divide our fractured society by creating “winners” and “losers,” instead of clarifying what it means to live and value diversity.
Respect for religious beliefs can, must and has effectively been balanced with other rights. And the exercise of religion is a good thing, even on a secular level. It should be appreciated for God’s sake – but also, arguably for the sake of everyone else.
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Dr. Mark Goldfeder is a former law professor and co-author of the five-volume treatise “Religious Organizations and the Law” (Westlaw).
