Sunday, September 13, 2015

Accommodating Religious Freedom under the Secular Rule of Law

 By Rudy Barnes, Jr.

           The freedom of religion is first among our freedoms in the First Amendment to the U.S. Constitution, and it forbids government from making any law that prohibits the free exercise of religion.  But religion can itself encroach on our freedom, as evidenced by Kim Davis, a clerk in Rowan County, Kentucky, who refused to issue marriage licenses to same sex couples based on her religious beliefs.  When a federal judge ordered Davis to issue such marriage licenses and she refused, she was found in contempt of court and spent a short time in the county jail.

            There can be no freedom of religion without a secular rule of law to protect it, and the law is ineffective if religious beliefs give people a license to disobey the law.  There is a seeming exception made famous by Rosa Parks and Dr. Martin Luther King, Jr., but their peaceful civil disobedience was not really an exception.  Both Rosa Parks and Dr. King went to jail when they purposely violated the law to protest separate but equallaws in the Jim Crow South.  As a result of their protests, the law was changed through normal democratic political processes. 

            Michael Gerson of The Washington Post has asserted that Kim Davis is no Rosa Parks; but in the unlikely event that Davis ignites a quiescent majority of Americans to make same-sex marriage unlawful, then she would be more like Rosa Parks than Gerson would like to admit.

            Private employers are required to provide reasonable accommodation for employees whose religious beliefs conflict with their job requirements, but Davis is a public official.  She requires a statutory accommodation like those provided in North Carolina and Utah that would allow other public officials to perform her duties when they conflict with her religious beliefs.
            While secular law can accommodate issues of religious belief that conflict with lawful duties, the issue can be avoided altogether if religious standards of legitimacy (what is right and wrong) are considered voluntary moral standards rather than obligatory laws.  When religious standards of legitimacy are enforced as law, as with apostasy and blasphemy laws, there can be no religious freedom.  Unfortunately Jewish, Christian and Muslim fundamentalists all consider the holy laws in their scriptures to be coercive laws rather than voluntary moral standards.

            Kim Davis is a Christian fundamentalist who believes that the Bible is God’s inerrant and infallible word and that it takes precedence over secular law, just as fundamentalist Muslims, or Islamists, believe that Islamic law, or shari’a, is God’s law and takes precedence over secular law and human rights, so that apostasy and blasphemy laws preclude any freedom of religion or speech.  In similar fashion, ultra-Orthodox Jews believe that it is God’s will that they rebuild their temple in Jerusalem on the ancient temple mount now occupied by a sacred mosque.  Such fundamentalist beliefs based on ancient scriptural mandates are not only a threat to democracy, human rights and the secular rule of law, but also to world peace.

            By way of contrast, progressive believers consider their sacred scriptures a source of truth for matters of faith and practice, but not as the perfect and immutable word of God that must be applied as a matter of law and policy today just as it was in ancient times.

            Jesus was a Jew who never refuted Mosaic Law, but unlike Moses, Jesus never taught that it was God’s perfect and immutable standard of law and righteousness.  Jesus taught the supremacy of love over law, and that the greatest commandment was to love God and our neighbors as ourselves.  And Islamic scholars have confirmed that the greatest commandment is a common word of faith for Jews, Christians and Muslims alike. 

            The teachings of Jesus and Muhammad on morality and law are at the heart of legitimacy.  Both men understood that true faith was based on voluntary acts of love and mercy rather than on obedience to religious laws.  The laws of Moses and Muhammad were suitable for their time and place, but not for ours.  In modern times, we are governed by the rule of secular law, not by God’s law; but believers can assert the moral supremacy of God’s law over secular law in democratic political processes and ultimately through peaceful civil disobedience, so long as they are willing to pay the price for violating the law. 

            Rosa Parks and Dr. Martin Luther King, Jr. exercised their religious freedom and protested the immorality of racially discriminatory laws in the Jim Crow South, and those laws were changed.  They used peaceful civil disobedience to demonstrate the moral primacy of love over law and the interrelated roles of religion, legitimacy and the secular rule of law.  Kim Davis protested the morality of the law on same-sex marriage based on her beliefs.  While her protest was ultimately accommodated by the law, it is unlikely to change the law she protested.   

Notes and References to Resources:

Previous blogs on related topics are: Faith and Freedom, December 15, 2014; The Greatest Commandment, January 11, 2015; Love over Law: A Principle at the Heart of Legitimacy, January 18, 2015; Jesus Meets Muhammad: Is There a Common Word of Faith for Jews, Christians and Muslims Today? January 25, 2015; Love, Marriage and Homosexuality, February 1, 2015; Promoting Religion through Evangelism: Bringing Light or Darkness, February 8, 2015; God and Country: Resolving Conflicting Concepts of Sovereignty, March 29, 2015; Faith as a Source of Morality and Law: The Heart of Legitimacy, April 12, 2015;  A Fundamental Problem with Religion, May 3, 2015; Christians Meet Muslims Today, June 14, 2015; Fear and Fundamentalism, July 26, 2015; and Freedom and Fundamentalism, August 2, 2015; How Religious Fundamentalism and Secularism Shape Politics and Human Rights, August 16, 2015; and Legitimacy as a Context and Paradigm to Resolve Religious Conflict, August 23, 2015.  

Eugene Volokh’s has provided an overview of religious accommodation law at  Geoffrey R. Stone has considered the impracticability of applying the Supreme Court’s incidental effects doctrine in Kim Davis’ case to the free exercise rights of the First amendment at

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