A recent development in Obamacares reach raises an important point about religious liberty. The health care law requires hospitals to provide contraceptives to patients. Churches have protested and have won an exemption to this regulation as it concerns their own health services. This is all well and good: Religious institutions shouldnt be forced to support practices they find morally objectionable. For related reasons, various tax exemptions on religious institutions are also consistent with the principles of a free society.
On the other hand, some will object that these institutions are enjoying special treatment. In the Obamacare regulations, and especially taxes, is it not also something of a tension with the First Amendment for the federal government to recognize some institutions, by virtue of their religious beliefs, as being exempt from certain mandates, while other institutions would not benefit from such exemptions?
Another seemingly very different issue, concerning the drug war, touches on this same theme. About a decade ago, Congress exempted American Indians from federal laws against Peyote, as the drug had been used for centuries in certain tribal rituals, and it appeared to be a threat to their religious liberty to interfere with this peaceful albeit controversial practice. Yet some have pointed out, validly, that it is unfair for the federal government to single out certain religious groups and allow them to commit acts that would be considered illegal if done by anyone else. A similar point could be applied to exceptions to alcohol prohibition made for religious services.
It would seem both alternatives are unfair, from a standpoint of religious freedomeither the state is violating the religious liberty of certain groups that wish to partake in certain activities (or refrain from certain activities) as a matter of conscience, or it is carving loopholes for such groups while denying the rights of others to engage in the same conduct. To take another example, if a conscientious objector is free not to be forced to serve in war on religious groundswhich he should bewhy cannot a conscientious objector have secular or other ideological reasons for not going to war?
Meanwhile, David Theroux has pointed out how much of the modern state itself constitutes a theocracy, but of a more secular mold than is seen in some other political cultures. Indeed, is not the bulk of state activity a violation of the freedom of conscience for those who have religious objections to the states many practices? If it is a violation of an atheists rights to force him to pay taxes to finance a public school that mandates prayer in schoolsand it most certainly isis it not equally a violation of a Christians rights to force him to pay taxes to finance a public school that prohibits prayer? I have long thought the answer was obvious: The entire state apparatus, insofar as it forcibly displaces religious life in the name of secular liberty, is itself a standing abomination to the very principles of freedom of religion so loudly vocalized by proponents of a secular but robust state.
True religious liberty is impossible when leviathan involves itself in every intimate avenue of our personal, social, and economic lives. This is because the state itself compels all its subjects to act in ways that may very well violate their consciences and deeply held values. To allow it to do so when religious values would be undermined is a threat to religious freedom. To make exceptions that declare only religion can exempt people from state obligations is also a problem, for then the state is involved in deciding what is and is not a valid religious belief.
The only way to have true religious freedom is to have freedom for all. Individuals and groups, operating according to the restrictions of personal liberty and private property, should be free to engage in any peaceful behavior. All practices would be lawful not on the basis of whether they are motivated by religion but whether they are just. Virgin sacrifices and suicide bombings, whether religiously or secularly motivated, have no place in civil society. But practices that violate no ones rightsexempting property from taxes, refusing Obamacares mandates, using Peyote, refusing to finance public schools that teach alien values, whether religious or secular, and declining to fight in a warwould be permitted for everyone. We may believe some choices to be more moral than others, or more justified than others when there is a religious element, but the only way to truly have religious freedom for all is to have freedom in general for all. Should Obamacare exempt churches from having to provide contraceptives? Of course. And it should also exempt anyone else from being forced to provide them.
|Anthony Gregory is a Research Fellow at the Independent Institute and the author of American Surveillance: Intelligence, Privacy, and the Fourth Amendment (University of Wisconsin Press for the Independent Institute). His previous book, The Power of Habeas Corpus in America: From the King's Prerogative to the War on Terror, won the 2013 PROSE Award for Best Book in Law and Legal Studies.|
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