So... We've spent 102 days as students in Syracuse University's "Election! Religion in Politics" course. While 72 of those days were entirely eclipsed by (the impending doom of) the 2016 election, we managed to cover some pretty important stuff (i.e. things that made said election that much more suspenseful like race relations and LGBTQ+ rights). Even though engaging in relevant political narratives is undoubtedly useful to us as citizens of the world, there's no denying that this semester has been a roller coaster for us all.
We've covered so many units that it was really impossible to pick, but I decided to go with a topic that I thought would encourage people to think more about what they say and do in every day life. So, without further ado, let's talk about what religious freedom REALLY means...
According to our good friend Winnifred Fallers Sullivan, religious freedom is "all about protecting artificial identities". What she means by this is that because you cannot truly define religion, it is ultimately impossible to protect it.
Elizabeth Shakman Hurd would tell us that the defining characteristic of religious freedom relies on choice, that "religious freedom advocacy also seeks to protect the right to choose one's religious belief or nonbelief".
Hurd, however, twisted all of our brains when she acknowledged the fact that advocating for religious freedom also contributes to the narrative that forces all believers into a specific model of what it means to be religious so that we can comfortably identify -and supposedly protect- them. I like to call this the "comfy Protestant box", and this box makes it increasingly more difficult to protect religions that don't fit in the box.
Let me give you a couple of examples of times where this box did not do a great job of including religions that didn't fit the model:
1. The 1990 Employment Division v. Smith Supreme Court Case. This was a prime example of a time where religious reasons were not protected in court, therefore proving that these specific people did not qualify for religious freedom the way that our nation had defined it. The case revolved around two Native American men who ingested peyote (a hallucinogenic drug) during a religious ritual, and were subsequently fired and denied unemployment benefits for doing so. Their argument was that they were in no violation of United States law because their use of peyote should be protected by the 2nd clause of the 1st Amendment of the Constitution which states that one may freely exercise their religion.
The problem here is that way back in 1878, a case by the name of Reynolds v. US actually defined religious freedom to encompass all beliefs but not all actions. Unfortunately for Smith, Justice Antonin Scalia upheld this precedent and ruled against him. Scalia's majority opinion essentially stated that the free exercise clause does not allow for accommodations for religiously motivated folks if they go against neutral laws that were already in place.
To make it simple: Smith's use of peyote, which was a drug offense, was illegal, and the fact that the use was a part of a religious ritual was irrelevant to the court's majority. Smith is was indigenous, and Reynolds was Mormon, does that tell you anything about how the courts sway in these cases?
2. The Burwell v. Hobby Lobby case. I must first give you a little bit of background information to provide context for how this decision actually "made sense" in the minds of the court's majority...
Back in 2010, the courts ruled on a case called Citizen United, which gave corporations the same rights as individuals (the point of this case was so that corporations could donate as much money as they wanted to political candidates). Unfortunately, by giving corporations personhood, people like Hobby Lobby's David and Barbara Green used this as a way to force their personal religious beliefs onto their employees.
A second piece of historical context that you're going to need to understand before the Hobby Lobby case really makes any sense is the Religious Freedom Restoration Act of 1993. Remember back a minute ago when I told you how the court (thanks to Justice Scalia) ruled against Smith in his religious freedom case quite possibly because he was a Native American? Well, the RFRA was put in place to protect people like Smith from being ruled against on these grounds in the future. Unfortunately, Scalia and his conservative buddies used this well-intentioned act in the favor of people like the Greens instead.
The whole gist of the RFRA was that " laws ‘‘neutral’’ toward religion may burden religious exercise as surely as laws intended to interfere with religious
exercise", and that "governments should not substantially burden religious
exercise without compelling justification".
One thing to mention here is the Sherbert Test. The test is used by the courts to broaden the protection granted through the Free Exercise Clause of the First Amendment to the U.S. Constitution. There are four things that the courts must determine in any religious freedom case:
1. whether the person has a claim involving a sincere religious belief
2. whether the government action is a substantial burden on the person’s ability to act on that belief.
3. whether it is acting upon "compelling state interest", and
4. whether it has pursued that interest in the manner least restrictive, or least burdensome, to religion.
Now lets tie this all back in to the Burwell v. Hobby Lobby Case. The Greens argued that under the new provisions of the Affordable Care Act, their requirement to provide contraception to their female employees was a substantial burden on their sincerely held religious belief that contraceptives like the birth control pill were equal to abortion, and they just couldn't bring themselves to participate.
While the courts did rule in favor of Burwell, they did make their ruling incredibly specific. Deciding that Hobby Lobby employees being denied contraceptives due to exercise of religious freedom by their employing corporation was as far as this extended. The decision did not open the flood gates for any other religious belief to also be accepted as a reason to block employees from receiving anything. Those strongly held religious beliefs would have to travel up the courts on their own to be validated as exercising religious freedom. While the results of Burwell v. Hobby Lobby were a perceived blow to the human rights of many Americans, the specificity was a solid cautionary measure.
(if you have any interest in the Burwell case, which wouldn't surprise me because it's crazy intriguing, you can read more here.
Now, while the Burwell decision was clearly just about contraceptives within the Affordable Care Act, the Satanic Temple (yes, you read that right), in 2014, used the Burwell ruling as leverage for an "exemption of the burden of state-mandated "informational" abortion materials for those who share their deeply held beliefs". While the Satanists stated that their argument had heft even before the Burwell decision, they believed that if the court could give such respect to the Green's sincerely held belief that contraceptives are abortafacients, that Satanists should receive the same religious protection when refusing these informational booklets on the basis of religious freedom.
Another timely and significant example of the effects of trying to determine who gets religious freedom is a 2015 case from Hofstra University involving a Sikh student in the ROTC program. "When he went to sign up for the program, he was told that he would have to shave his beard, cut his hair and remove his turban. When he asked for a religious accommodation as a Sikh, the Army refused, saying that these articles of faith would undermine unit cohesion and morale, readiness, health and safety, and discipline".
Unfortunately for the Army, the fact that they already permitted Jews to wear yarmulkes, women have long hair, and people to skip shaving due to SENSITIVE SKIN was about to come back and bite them. Seeing as these things didn't cause any ripple in morale or cohesion, Iknoor Singh's beard and long hair shouldn't have either, right? Well that's exactly what he argued, and the courts were on his side. While this case was decided in Federal Court, I bet we all know which Justice was enthusiastic about this ruling back in Washington.
In case all of that blabber was too blabbery for you, here is a nice run down of what this whole article was meant to teach you:
1. Religion is impossible to define which means that religious freedom is even harder to define.
2. If we had to try, the best way to describe it would be to say that to have religious freedom would mean that you can freely express your religion without fear of being infringed upon by others or unprotected by the courts.
3. Reynolds v. US, Employment Div. v. Smith, and Burwell v. Hobby Lobby are the three most historically significant court cases that give context to who has previously gotten their exercise of religious freedom protected by the courts and who has not (hint: majority religions with ties to Protestantism tend to prevail in this equation).
4. Citizens United was a big f***up on the part of the courts and SO WAS THE RFRA! Why? Because both of these rulings ended up causing the opposite of their intended effect, and ended up being big fat roadblocks to religious freedom in the United States.
5. The courts are still trying to figure out how to protect everyone's freedom of religion equally, but until there is a common consensus on the fact that all religions actually should be equally valued under the United States Constitution the way that the document sort of, you know, suggests, it's going to continue to be a struggle.
Make sense? I hope so.
With that, friends, have a very happy holiday season filled with food and joy. I hope that each of you will now be able to peer into things like Supreme Court decisions with a little more depth and hopefully start to check the privilege of white Protestant Americans all while you work out your New Years resolutions... try to keep it together this year, and we'll hope for the same for the USA as we welcome the incoming administration!
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