Gene Nichol: The limits of religious liberty

Regarding xxxxx: State Rep. Paul Stam has explained his Religious Freedom Restoration Act would ensure that “government cannot tell individuals what to do against their religion in private business” without extraordinary justification.

Like most, I’m drawn to such sentiments. Our national story was launched on the urgings of religious liberty. If presented with a collision between the teachings of church and the dictates of government, we seek to embrace the higher law. But it turns out, in a pluralistic democracy, it’s not possible to uniformly assure that people are free to live and work according to their faith. Here’s why.

First, the array of possible claims in the name of religious freedom is, literally, boundless. The Supreme Court has entertained cases asserting faith-based commands to engage in polygamy, discriminate on the basis of race, smoke peyote and conduct live animal slaughter or to refuse to enter the draft, pay taxes, contribute to Social Security, obtain a photo ID, go to school past the eighth grade and wear the prescribed military uniform while on duty.

And these are cases pressed by organizations with enough resources to work their way to our highest tribunal. Imagine what the list of nontraditional tenets, writ large, must actually look like.

Second, you cannot, in a system of religious freedom, allow government to choose between good and bad, worthy and unworthy, religious claims. Were a public official to undertake such a classification, he would violate the central premise of the First Amendment.

Third, most free exercise claims are arguments for special exemption from admittedly constitutional rules of general application. Amish plaintiffs didn’t say truancy laws were unconstitutional, just that they couldn’t be applied to them. Peyote practitioners didn’t seek to invalidate drug laws, but to claim special relief from them. Bob Jones University didn’t argue the civil rights statutes were void; it demanded immunity from enforcement.

Stam doesn’t think anti-discrimination laws are impermissible; he believes claims of religious command should excuse compliance. Religionists plead, in each instance, for special rights. So, if religious freedom claims are limitless, if they can’t constitutionally be sorted and sifted, and if they inevitably ask to be excused from rules that apply to everyone else, they pose a stark tension with notions of equal applicability and the rule of law itself.

It’s not startling then that even notably conservative justices like Antonin Scalia would develop legal standards making it markedly difficult to pursue free exercise actions. He and his colleagues would not agree that all are free to live and work according to their faith.

I don’t find this result uniformly congenial. Free exercise claims are frequently the pleas of dissenters, often marginalized ones. We order our society to fit the patterns of majorities. (It would never occur to my public university to schedule classes on Christmas, though it might on the holy days of others.) Still, the more diverse a society becomes, the more difficult it is to give ascendancy to the standards of religion over those of democracy.

The length limit was waived to permit a fuller response to the issue.

This story was originally published April 4, 2015 at 4:00 PM with the headline "Gene Nichol: The limits of religious liberty."