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Open To Thinking: Discrimination: Religious liberty?!
A recurring column
by Nick Patricca
2016-05-04

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The discussion of the principle of 'Religious Liberty' in our current presidential electioneering has generated so much darkness and so many red herrings that I have been reluctant to take on the topic. Since candidate Ted Cruz and others, however, keep raising this important issue, I would like to review some of the philosophical issues at the heart of this civil liberty.

As stated in the First Amendment of our U.S. Constitution, the idea seems clear and straightforward: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof … ."

Historically, this phrase has been understood to imply two inter-related legal principles: 1 ) the State cannot establish a religion, nor can it favor any religion, nor can it interfere with any religion; and 2 ) the individual U.S. citizen is free to choose his religion, practice his religion, change his religion, not practice his religion, and not have a religion as the individual sees fit. These two philosophical/legal implications do not always live in harmony with each other.

In our civil society, the State has interfered in the practices of some religions. Two examples: Mormons are not allowed to practice polygamy even if they perceive this practice as a divine mandate; and adherents of Christian Science may not deny certain life-saving, modern medical procedures to their children. In the former case, the State denied the legal right to an adult male citizen to enter into a valid civil marriage with more than one woman. In the latter case, the State denied the absolute right of parents to nurture and educate their children.

In both of these cases, the State intruded forcibly into the "privacy" and "rights" of the individual to safe-guard values the State judged essential to the well-being of the political community. The State elects to interfere when the core values of the civil society cannot tolerate the specific religious practice at issue.

Let us consider Female Genital Mutilation ( FGM ). This form of circumcision has been practiced for millennia among many peoples, cultures and religions. Today, FMG is mostly a practice of some Islamic and Animistic ethnicities. Medical science has demonstrated that this form of circumcision causes serious adverse medical and psychological damage. It seems clear that FGM should not be forced upon anyone, especially not on children. In my judgment, therefore, our civil society cannot tolerate this practice whether it be considered a cultural or a religious practice and should prohibit its imposition on any woman.

In the case of conventional male circumcision ( some would say mutilation ), medical science does not demonstrate serious adverse medical and psychological damage. In fact, there is some evidence that male circumcision has some health benefits. In this case, the State has no compelling interest and no basis for interfering in the parent's right to impose this surgery on their male infants. Regarding the practice of 'oral suction circumcision' by some orthodox rabbis, however, I do think that the State has a compelling public health objection because of the possible transmission of Hepatitis C and other viruses.

By focusing on the baking of wedding cakes or on the preparing of floral arrangements for two adult citizens entering into a legal marriage, I think Cruz and others are not promoting a genuine discussion of the meaning of religious liberty in our society. These cases are brought to court as political distractions and incitements by those opposed to equality for LGBTQI peoples. These cases are properly adjudicated under anti-discrimination laws and regulations, not under the principle of religious liberty.

What is of importance is a proper discussion of the implications of the Supreme Court's decision ( June, 2014 ) in favor of Hobby Lobby which re-affirmed the legal understanding of corporations as functional equivalents of 'persons' who have 'free exercise rights.' In this case, it was decided that the religious liberty of the owners of the corporation could be injured by certain regulations of 'Obamacare' because the corporation is entirely owned by one family with—allegedly—one uniform religious faith. According to this legal judgment, the religious liberty of the individual employees does not count, nor would the religious liberty of the limited number of individual stock holders in a 'closely held' corporation.

Just as the Supreme Court's decision in Citizens United ( January, 2010 ) means in practice that more money buys you greater political power, so too in Hobby Lobby more money buys you more religious liberty.

The unforeseen and unintended consequences of Citizens United have profoundly changed our political system.

The unforeseen and unintended consequences of Hobby Lobby should be the subject of our political conversations on religious liberty in this presidential election campaign.

Nick Patricca is professor emeritus at Loyola University Chicago, president of Chicago Network and playwright emeritus at Victory Gardens Theater.


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