Sunday, November 2, 2008

Religious Freedom

The statement that Carolyn is affirming is that Proposition 8 will protect religious freedom. Before we can have a proper debate on this subject we must define what exactly religious freedom is. This post is my attempt to explain what religious freedom means to me.

In my mind, religious freedom consists of four elements. The primary element of religious freedom is the freedom to believe according to the dictates of one's conscience. While this freedom is the core of religious freedom, it is the least important focus in looking at policy--until the government has the means of mind control, individuals will always have the ability to believe as they want, even in the most repressive state.

Religious freedom also includes the right to freely express one's beliefs, and as a corollary, to not be required to express beliefs that one does not hold. Justice Jackson expressed it thusly:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.1

The freedom to express one's religious beliefs is protected in the United States mainly by the First Amendment's guarantee of freedom of speech.

A third element of religious freedom is the freedom to congregate and worship with like-minded individuals. This freedom may be a matter of course to most Americans, but this is often a freedom denied to many minority religious groups in many places to maintain state control. Again, this part of religious freedom is not protected under the free exercise clause of the First Amendment. Rather, it is protected under the freedom of association, a right that the Court has found in the "penumbras" of the existing freedoms of speech, assembly, and the liberty clause of the Fifth and Fourteenth Amendments.2

The fourth element of religious freedom is the freedom to practice one's religious rituals. This is where state regulation and religious freedom are most likely to clash. Issues like polygamy, religious peyote use, and animal sacrifice fall into this category. Currently, protection of religious practice come from the free exercise clause of the First Amendment and state and federal statute. The Court has ruled that a generally applicable law that does not discriminate against religion is valid. That means, to take two examples, that a state can prohibit peyote use for all of its citizens without running afoul of the Constitution,3 but if a city allows for the slaughter of chickens for non-religious purposes, it must also allow for the slaughter of chickens for religious purposes.4 The states and federal government can also exempt religious practices from the scope of otherwise generally applicable laws; the federal government and some of the states have done this.

This is just a primer of religious freedom, and I may have missed some vital dimensions in my haste to write this post. What say you, dear readers? What other issues are important to note when talking about religious freedom?

1. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

2. See Roberts v. United States Jaycees, 468 U.S. 609 (1984).

3. Employment Division v. Smith, 494 U.S. 872 (1990).

4. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).

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