It was a long time before I figured this stuff out.
Years ago, a Seattle paper used to carry a column about ethics. One week there was a letter from a reader asking something like, “Should my religion tell me what to do?”
Figuring that’s what people expect of their religions, I didn’t bother reading the answer; so, later, when I started wondering about the topic myself, I was free to envision two separate, interesting questions: First, What if my religion conflicts with some other obligation? And, second: If my religion can tell me what to do, can it also tell other people what to do? Some may be surprised to learn that the answer to the second question is “no;” and that goes a long way toward answering the first.
I started playing tennis when I was a teenager living in West Texas. In gym class we saw a filmstrip about how to shake hands with Mr. Racket, how to tell if the net was the right height, and how to keep score; after that we were on our own. Out in the real world we soon learned another important lesson: if you wanted to play on Sunday, you needed to make sure on Saturday that you had all the tennis balls you needed. That was because it was against the law for stores to sell you tennis balls on Sunday.
And why should not the Sabbath have been kept? Most proponents of these so-called “Blue Laws” probably considered that all legislation was meant to be a reflection of their Christian morality. Discrepancies might arise because of the Constitution’s generous willingness to humor other faiths. But where else could notions of right and wrong come from? Had not religion been offered to them as the only reason for all correct behavior?
But that’s not really how the system works. The Founding Fathers didn’t defer the question, or choose one religion and then dial it down, or decide that a “best of” collection would be okay. Rather than settle the competition between religions in the public arena, they decided that such competition would always be private. In the United States we have protected religion from government by protecting government from religion.
That decision works because all the laws needed to regulate the interactions between citizens can be made without reference to faith. We know that killing is a sin because it has been revealed to be, but we make it a crime because it causes grief and disrupts the social order; similarly theft, and bearing false witness. We know that adultery is a sin because it is revealed to be, but we made it a crime because it causes unhappiness and moreover because it used to prevent people from knowing who their offspring were. With DNA testing and no-fault divorce, adultery is not the crime that it once was, though presumably it continues to be as sinful as ever. Failure to observe the Sabbath is revealed to be a sin, but under our system of laws it should not be a crime because failure to observe it (or observing it on a different day) harms no other person. Here’s the analysis to perform when a court decision, say, seems to conflict with faith: if you cannot think of a basis for a law other than a religious one, then the law should not exist. Religion is neither necessary nor sufficient for legislation.
This is the answer to only the second of my two questions: the law should not prohibit belief, or even prohibit an act of faith that does not affect others adversely. But what of that case where a commandment seems to require an action that conflicts with the needs of another individual, or of society? At one end of the scale is the religious use of drugs whose possession is otherwise prohibited. At the other would be a parent’s withholding of medical treatment from a child on religious grounds. These are areas where legislators and courts have sometimes struggled, and that should be the subject of a later essay.
But our analysis goes a long way, and until recently it has provided an answer even to cases that seemed contentious. One was that of Kim Davis, the county clerk in Kentucky who refused to issue marriage licenses to some couples, citing her own religious beliefs. Use of a governmental office to impose beliefs on others is “establishment of religion,” the very thing that the Constitution prohibits explicitly, and not “freedom” of religion at all.
Another case was that of the football coach who held prayer meetings, on the field after the game, at a public school. He claimed that he was merely practicing his faith, but students said that they felt pressured to join in. The school district, not wanting to be seen as promoting a particular religion, asked him to stop. To paraphrase one famous jurist, Coach Joe Kennedy would have a constitutional right to pray, but he would not have a constitutional right to be a coach.
But apparently now he does, as the Supreme Court has reversed a trial court’s decision that his religious freedom had not been violated. Praying privately has always been permissible in public schools, but a prayer led by an authority figure, one who might decide who gets to play in the Big Game, would have been thought coercive. Is this different from the Kim Davis case only in degree, or in that the Coach’s actions are easier to avoid? It may take a later case, perhaps one where cheerleader practice is interrupted by the Muslim prayer call, to determine whether the Justices’ stance on this issue is actually neutral, or if it favors a religion that they share.
Because that’s how the classic controversy has traditionally arisen, when a governmental agency is asked to erect a religious monument, such as a Nativity scene or tablets representing the Ten Commandments, on public property. Temptation is great, but until now has tempered by the realization that, at the very least, other beliefs will need to be given equal space. When Pastafarians or the Church of Satan arrive, cooler heads usually prevail. This is one way that the understanding of freedom of religion may begin to dawn, when one first imagines what public competition might look like.
— Scott McKee