Constitutional norms provide room for people to act on their beliefs

Written by William C. Duncan

March 2, 2023

Terrence Malick’s 2019 film, A Hidden Life, tells the story of Austrian farmer Franz Jägerstätter, who was executed by the Nazis in 1943 when he refused to serve after being drafted into the German army. The record of his military trial explains his position: “Only in the past year had he become convinced that as a devout Catholic he was unable to engage in active military service. It was impossible for him to be a Catholic and at the same time a National Socialist.”

One rationale for protecting religious freedom is premised on the reality that faith is a powerful motivation for individuals to act, sometimes with selfless courage like Jägerstätter. Although specific actions by believers may not always be popular and may even seem strange or objectionable to others, our constitutional norms provide room for people to act on their beliefs.

Stories like Jägerstätter’s demonstrate a powerful advantage of this policy. Although treated as a criminal and executed by the government for his beliefs, there is no doubt that Jägerstätter was a moral hero who stood up to a murderous regime. Not all religiously motivated acts are so clearly noble. But in a free society, individuals who live their faith can provide an important corrective to mistaken or even oppressive policies, even when those policies are endorsed by majorities and enshrined in law.

A similar constitutional policy ensures that the U.S. government will not limit that freedom by choosing one denomination or belief as the official state church.

As described in a post last week, these constitutional guarantees have been invoked in the ongoing moral debate over regulation of abortion. That post highlighted a claim that the diversity of religious opinions on abortion precluded the state from regulating the practice. That, I argued, is a misinterpretation of the free exercise clause. The post also noted, in passing, that some claim that laws that coincide with religious beliefs are necessarily an endorsement of religion and therefore unconstitutional. The U.S. Supreme Court has rejected that assertion, but it is still raised in public debates.

Interestingly, since that post, some survey data about abortion has been released that may be relevant to this discussion.

The survey, by the Public Religion Research Institute, reported that a majority of the Americans who were questioned supported laws that allow abortion in most or all circumstances: “30% say abortion should be legal in all cases, 34% say it should be legal in most cases, 25% say it should be illegal in most cases, and just 9% say it should be illegal in all cases.”

One academic has suggested that this result might be partially explained by the questions asked, since surveys that use the questions reported by PRRI “typically produce majorities supporting legal abortion.” He points to Gallup polls where “a majority of respondents answered that abortion should be either ‘legal only in a few circumstances’ or ‘illegal in all circumstances.’ Combined support for the two most pro-life options in these 42 Gallup polls ranged between 52 percent and 63 percent.”

Additionally, it would also be helpful to know more about the specific regulations respondents were thinking of when they answered, since many of the current legal proposals about regulating abortion, like Utah’s, include specific exemptions such as when a mother’s life is endangered or conception resulted from rape or incest.

The survey also included some questions related to religious influence on abortion policy. The responses call into question the idea that religious beliefs about abortion are really a significant driver of state policies.

As described in a Deseret News story about the survey:

The Institute found that just 31% of U.S. adults agree with the statement, “My religious faith dictates my views on abortion.” Agreement is much more common among those who believe abortion should be illegal (65%) than among those who support abortion rights (14%).

It’s even less common for Americans to look to religious leaders for insights on the issue of abortion, researchers found. Just 16% of U.S. adults told Public Religion Research Institute that they turn to pastors, priests or other faith leaders “for guidance on how to think about abortion.”

A pluralist society allows for many voices, religious and non-religious, to appeal to their fellow citizens in the hopes of arousing their moral sense and thereby influencing laws and public policy. Of course, some of those voices will be unpopular and even deeply disturbing to some. Silencing those voices, by contrast, could lead to unchecked or at least unchallenged policies that might be deeply wrong.

That is why, although this survey may suggest that concerns with undue sectarian influence in lawmaking are unfounded, it may also indicate something else troubling – specifically, that many of us are not being influenced by religious teachings that could provide a critical source of moral wisdom, insight, and concern for others that we need in a time of deep divisions.

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