June 17, 2021
Those who argue for robust legal protections for religious exercise sometimes struggle to answer an objection: What about when religious groups or their members do something clearly wrong? The concern is that real injustices or abuses might occur under the guise of religious practice that would not be corrected.
That is a sincere concern that deserves serious attention. In fact, religious teachings are acutely concerned with precisely this problem. Most religious doctrines recognize the reality and persistence of evil and seek to lessen its prevalence and effects. Their teachings and practices can be powerful influences in curbing social ills like substance abuse and domestic violence.
In addition to the efforts of religious groups to prevent bad behavior, an important response to the objection is that the current legal protection of religious freedom in the United States explicitly addresses the need to protect religious freedom while at the same time protecting against abuses.
To understand this balance, we need to unpack the worry that religious freedom can shield bad behavior. Doing so allows us to see that there are really two distinct concerns that might be conflated, creating confusion and unnecessary concern.
Sometimes the concern that religious freedom will shield wrongdoing is based on a simple disagreement of beliefs. A person who objects to women being veiled in public may sincerely believe that a woman wearing a religious covering is harmed even when that woman voluntarily does so. A government agency may feel that religious services should not be held during a pandemic and may claim that allowing gatherings is harmful even when the services are similar to non-religious activities.
These are not so much harms as different beliefs. Such criticisms can be appropriately expressed, and those who disagree with another’s religious beliefs or choices are free to work to convince others of their concerns. However, constitutional and statutory protections of religious exercise are intended to keep these types of disagreements from leading to official government policy that limits the practices of others.
This, however, does not mean that merely claiming religious sanction for otherwise illegal or dangerous practices can or should always end the analysis. In fact, the Religious Freedom Restoration Act, and the constitutional interpretation it borrows, explicitly includes exceptions. RFRA says that the government can limit religious exercise if doing so is necessary to further a compelling interest, like protecting others from harm.
So, imagine a hypothetical religion that included a belief in human sacrifice. The government clearly has a compelling interest in preventing murder. It has a compelling interest in preventing the abuse of children, stopping other forms of violence, protecting public health, ending racial discrimination, etc. In these instances, the government need not allow bad behavior to go unaddressed. Where religious practices violate compelling government interests, the government can prevent or limit them, as long as it does so as narrowly enough to protect the interest while allowing non-harmful protected exercise.
There is not much that can be done to address concerns of those who believe that the voluntary religious beliefs and practices of others are harmful. The nature of a pluralistic society is that we must often put up with the ways that our neighbors exercise their rights even when we find them offensive. That’s pretty well understood in the context of free speech. Indeed, the famous interpretation of Voltaire’s thought is well known: “I disapprove of what you say, but I will defend to the death your right to say it.”
This is a wise approach to the majority of religious practices or beliefs we disagree with or just do not understand.
There are some situations in which a specific religious practice – or at least action by a person claiming religious sanction – is harmful. There, the settled interpretation of constitutional principles, and the text of the Religious Freedom Restoration Act, provide protections against practices that are truly harmful to safety or public health.
There will be hard cases, as demonstrated by a recent Utah case involving an allegation that members of a congregation tormented an abuse victim. There may even be mistakes. As an example from another context, during World War II, the government was able to convince a majority of the Supreme Court that detaining Japanese-Americans was justified by national security concerns. Congress reimbursed citizens who had been displaced in 1948 and formally apologized in 1988. In 2018, the Supreme Court explicitly repudiated the earlier decision. While not perfect, our constitutional system allows for mistakes to be corrected and injustices redressed.
Thus, while not every worry about religious freedom can or will be assuaged, the same legal rules that protect religious freedom also act to curtail possible abuses.
A recent news story pointed out that President Joe Biden has begun his administration with a strong record for getting new federal judges confirmed. Since taking office, he has managed to secure the confirmation of eight federal judges, more than any president since Richard Nixon.
With vision, leadership and sufficient efforts on the ground, we can muster the political will to plant “the Utah way” in the hearts and minds of future generations.
So if a destructive CRT ban is at best a partial policy solution – which may ultimately prove ineffective – what are the alternative (or perhaps additional) policy options that leaders should consider?