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Bigotry Again Masquerading as Religious Liberty

In the 1850s and 60s, there were slaveholders who justified their ways by appealing to their religious beliefs. In the 1950s and 60s, there were segregationists who screamed “religious liberty” when their practices were questioned. Indeed, as late as 1983, Bob Jones University went to the US Supreme Court to defend their discriminatory practices that violated federal law. At stake, properly speaking, was not their right to hold their beliefs or practice discrimination, but rather their tax-exempt status. That is, they were receiving a benefit from society while acting against the laws of that same society.

Let the record show that Bob Jones University lost their case, 8-1.

Said the majority opinion (emphasis added):

Charitable exemptions are justified on the basis that the exempt entity confers a public benefit — a benefit which the society or the community may not itself choose or be able to provide, or which supplements and advances the work of public institutions already supported by tax revenues. History buttresses logic to make clear that, to warrant exemption under § 501(c)(3), an institution must fall within a category specified in that section and must demonstrably serve and be in harmony with the public interest. The institution’s purpose must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred.

. . .

This Court has long held the Free Exercise Clause of the First Amendment to be an absolute prohibition against governmental regulation of religious beliefs, Wisconsin v. Yoder, 406 U. S. 205, 406 U. S. 219 (1972); Sherbert v. Verner, 374 U. S. 398, 374 U. S. 402 (1963); Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 303 (1940). As interpreted by this Court, moreover, the Free Exercise Clause provides substantial protection for lawful conduct grounded in religious belief, see Wisconsin v. Yoder, supra, at 406 U. S. 220; Thomas v. Review Board of Indiana Employment Security Div., 450 U. S. 707 (1981); Sherbert v. Verner, supra, at 374 U. S. 402-403. However, “[n]ot all burdens on religion are unconstitutional. . . . The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.”

United States v. Lee, 455 U. S. 252, 455 U. S. 257-258 (1982). See, e.g., McDaniel v. Paty, 435 U. S. 618, 435 U. S. 628, and n. 8 (1978); Wisconsin v. Yoder, supra, at 406 U. S. 215; Gillette v. United States, 401 U. S. 437 (1971).

On occasion, this Court has found certain governmental interests so compelling as to allow even regulations prohibiting religiously based conduct. In Prince v. Massachusetts, 321 U. S. 158 (1944), for example, the Court held that neutrally cast child labor laws prohibiting sale of printed materials on public streets could be applied to prohibit children from dispensing religious literature. The Court found no constitutional infirmity in “excluding [Jehovah’s Witness children] from doing there what no other children may do.” Id. at 321 U. S. 171. See also Reynolds v. United States, 98 U. S. 145 (1879); United States v. Lee, supra; Gillette v. United States, supra. Denial of tax benefits will inevitably have a substantial impact on the operation of private religious schools, but will not prevent those schools from observing their religious tenets.

The governmental interest at stake here is compelling. As discussed in 461 U. S. supra, the Government has a fundamental, overriding interest in eradicating racial discrimination in education — discrimination that prevailed, with official approval, for the first 165 years of this Nation’s constitutional history. That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs. The interests asserted by petitioners cannot be accommodated with that compelling governmental interest, see United States v. Lee, supra, at 455 U. S. 259-260; and no “less restrictive means,” see Thomas v. Review Board of Indiana Employment Security Div., supra, at 450 U. S. 718, are available to achieve the governmental interest.

461 U.S. 592-3, 604 et seq. (footnotes omitted).

Shorter SCOTUS: Shouting “Religious Liberty!” is not an magic incantation that frees people to do whatever they want.

Bob Jones University v. US has become a classic case in religious liberty disputes in the 29 years since it was decided. Unfortunately, it seems as if many on the right are unaware of its existence.

Like the US Conference of Catholic Bishops. Whether one agrees with the Affordable Care Act or not, the notion that there is no compelling governmental interest in regulating the health care system is laughable. As Bob Jones University discovered, you cannot simultaneously accept federal funds and use claims of religious liberty to act in opposition to those interests without losing those funds.

Similarly, out in the middle of conservative Kansas, a battle is brewing over LGBT non-discrimination ordinances. The cities of Salina and Hutchinson recently adopted relatively mild anti-discrimination measures, and the TheoCons are screaming “religious liberty!” as they try to get the measures stopped or repealed. In Salina, US Representative Tim Huelskamp (R-KS 01) joined with the religious right group called Kansas Family Policy Council to do just this, and the KFPC is making the same noises in Hutchinson.

One of the strongest statements against the protestations of “religious liberty” as a mask for bigotry comes from the highly religious Martin Luther King Jr.’s Letter from Birmingham Jail. Wrote King,

I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.

Go read the whole thing [pdf].

Toward the end, King writes something that resonates strongly with me.

But despite these notable exceptions [of various white religious leaders publicly acting to support integration], I must honestly reiterate that I have been disappointed with the church. I do not say this as one of those negative critics who can always find something wrong with the church. I say this as a minister of the gospel, who loves the church; who was nurtured in its bosom; who has been sustained by its spiritual blessings and who will remain true to it as long as the cord of life shall lengthen.

Bigots have tried to cast their beliefs in respectability using religious, political, and social language for generations, and this generation is no different. But whether the speakers are bishops or US representatives or people known only in their local communities, bigotry remains just that.

No one is saying that Catholics can’t believe whatever they want. No one is saying that small business owners can’t believe whatever they want. But shouting “religious liberty!” does not grant the speaker the right to be exempt from the laws that protect the rights of women to be treated equally with men, or that prohibit discrimination based on sexual orientation.


photo h/t of Roger Williams statue to California Cthulhu. Williams, a Baptist, was kicked out of the Puritan colony of Massachusetts Bay, and founded the religiously tolerant colony of Rhode Island.

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I'm an ordained Lutheran pastor with a passion for language, progressive politics, and the intersection of people's inner sets of ideals and beliefs (aka "faith" to many) and their political actions. I mostly comment around here, but offer a weekly post or two as well. With the role that conservative Christianity plays in the current Republican politics, I believe that progressives ignore the dynamics of religion, religious language, and religiously-inspired actions at our own peril. I am also incensed at what the TheoCons have done to the public impression of Christianity, and don't want their twisted version of it to go unchallenged in the wider world. I'm a midwesterner, now living in the Kansas City area, but also spent ten years living in the SF Bay area. I'm married to a wonderful microbiologist (she's wonderful all the way around, not just at science) and have a great little Kid, for whom I am the primary caretaker these days. I love the discussions around here, especially the combination of humor and seriousness that lets us take on incredibly tough stuff while keeping it all in perspective and treating one another with respect.

And Preview is my friend.