Academic journal article Journal of Markets & Morality

The Religious Wars in Twenty-First-Century America

Academic journal article Journal of Markets & Morality

The Religious Wars in Twenty-First-Century America

Article excerpt

In my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them.                                                  --George Washington (1) The phrases "religious liberty" and "religious freedom " will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance.                                                   --Martin R. Castro (2) 

Introduction

"We are a religious people, whose institutions presuppose a supreme being." That language, from Justice Douglas's opinion for the Court in Zorach v. Clausen, (3) is increasingly at odds with the modern state and its expansive understanding of public accommodations and antidiscrimination law. Indeed, as government has expanded to fill in much of the space previously occupied by the private realm, including the private religious realm, tension between religious exercise and government mandates has increased to the point that one or the other must retreat. Government mandates that private employers provide abortifacient drugs (in contravention of their sincerely held religious beliefs) or be subjected to crippling fines, (4) demands that private pharmacists stock and sell such drugs or be barred from conducting business, (5) and prosecutions for violating various public accommodation laws for refusing to participate in same-sex "marriage" ceremonies, (6) all have pitted the force of government against the foundational right to live according to one's own religious faith, not just in one's church, synagogue, or mosque, but also in public.

It is that last piece--the public manifestation of religion--that gives rise to such consternation in twenty-first century America. Indeed, resolving disputes between religious liberty and government, or between religious liberty and a slew of private claims, would be an easy matter if religion were merely "some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one's room," as the late Justice Antonin Scalia famously wrote with his characteristic flare in dissent from the school graduation prayer case, Lee v. Weisman. (7) But as Justice Scalia recognized, religion "is not that [for most believers], and has never been. Religious men and women of almost all denominations have felt it necessary to acknowledge and beseech God's blessings as a people and not just as individuals"--to live in accordance with their understanding of God's will in their public lives--their businesses, their charitable activities, their speech, their interactions with neighbors and fellow citizens, the marketplace and the public square--and not just behind the curtains of home, church, synagogue, mosque, and temple.

The guarantee of the freedom of conscience was not a tangential or disposable element of the American founding, but a necessary corollary to the self-evident truths of the Declaration. "Almighty God hath created the mind free," wrote Thomas Jefferson in his Statute on Religious Freedom, and hence "all attempts to influence it by temporal punishment or burthens, or by civil incapacitations... are a departure from the plan of the Holy author of our religion." (8) But the duties one owes to the Creator extend beyond mere belief; they include the exercise of religion as well, in accordance with those faith tenets. To name but three, drawn from the predominant Judeo-Christian tradition: Keep the Commandments (which both require certain conduct and forbid other conduct); do not be complicit in sin; and seek to dissuade others from sin.

This "free exercise" was not at all in tension with the requirement, in the federal Constitution, that Congress make no law respecting an establishment of religion. To exempt religious dissenters from majoritarian imposition was instead seen as a form of toleration of difference, the opposite of an establishment. …

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