No Right to "Religious Expression"

As a theologian and a Christian in the United States—but not a lawyer, so I'll be glad to be corrected by those better trained in the field—I'm about to suggest to you that something you may think sacrosanct doesn't actually exist. You have no right to the protection of "religious expression."

Not under the First Amendment to the Constitution, and not even under the poorly-conceived Religious Freedom Restoration Act of 1993—which was quickly ruled to be such an overreach of legitimate Congressional authority that it could not be applied to the states. (At which point Congress enacted narrower laws to do what it meant to do in the first place: protect the lands and practices of First Nations peoples.)

But the freedom of "religious expression" is exactly the line being pushed today, and for the past several years, as though Christians had an unquestionable Constitutional right to express and act on their opinions without threat of censure or punishment. It's a popular idea, and I get the popularity, but it's one successfully refuted by the struggles of generations of conscientious objectors. There's a reason why it looks so much like trying to create a new right that doesn't actually exist: it doesn't! And that's exactly why it keeps getting smacked down in the high courts.

Let's have a look at what you do have, instead—and what, in point of fact, every other citizen regardless of their religion, race, gender, sexual orientation, or political alignment also has, to the exact same degree. Let's look at what the saeculum in which you exist is designed to protect for everyone in it.

First Amendment Rights

When it comes to basic guarantees made regarding religion in the Unites States, there are two primary questions. The first is, what do we guarantee to individuals? That's the Free Exercise Clause. The second is, what do we guarantee to institutions? That's the Establishment Clause. And in both cases, we need to determine which particular individuals and institutions are subjects of these protections, and what acts are and are not covered by them.

Let's begin with an overview. What is the context for these rights? What does the First Amendment do? The two "religious freedom" clauses are part of a larger set of six clauses guaranteeing things about which the government (including state governments by extension of the 14th Amendment) has no power to legislate. Congress shall make no law:
  1. respecting an establishment of religion
  2. prohibiting the free exercise thereof
  3. abridging the freedom of speech
  4. [abridging the freedom] of the press
  5. [abridging] the right of the people peaceably to assemble
  6. [abridging the right of the people] to petition the Government for a redress of grievances
Now, as the law has developed, we understand two classes of things here: the "freedom of religion," in the first two; and the "freedom of expression," in the last four.

The "freedom of expression" consists of individual liberties that the government cannot restrict. These are the freedoms of speech, the press, assembly/association, and petition. In less coded language, the government has no right to suppress your oral and written communications (except in special cases), and you have the right to gather together with other people for non-violent purposes, as well as the right to ask the government to fix wrongs done to you (individually or as a class).

"Expression" is a secular freedom, one guaranteed to every individual by mere right of state citizenship. It cannot legally be restricted to, or from, any group. Every individual, and every group composed of relevant individuals, is entitled to these freedoms and rights. This is a set of freedoms especially guaranteed to minority opinions, which have in the course of law proven to be the ones most in need of protection against suppression by powerful interests. It is a set of freedoms guaranteed to every individual equally, by necessary implication. Nobody is not entitled to these freedoms, and nobody is more or less entitled to them. This freedom is not therefore absolute. It is a set of definite freedoms that are practically restricted in order to guarantee that they can be practically enforced.

The "freedom of religion" is a different sort of beast. Note how the language changes going into the last four. Those are rights of the people, guarantees of their freedoms. They exist to make sure that the people can exert themselves at any time over against their government, and that it can be made to serve them. But how does the amendment begin? With something that is neither a matter of freedom, nor of right, but only of institutional exemption from lawmaking. It's not for nothing that these clauses are said to erect a "wall" separating church and state. These first two clauses are designed as much to protect the United States from the turmoil of the European religious wars our settlers so often fled, as they are designed to protect religious institutions within the United States from express governmental interference for or against any one of them.

From Institutional Exemption to Individual Right

Now, the simple fact is that, with four clauses already firmly in the "individual right" category, religion was naturally going to follow. And that's because it's more likely that an individual is going to bring suit under the right of petition for redress of grievances. It's not at all clear that an "establishment of religion" has any standing to bring suit, except as the institution can be defined under the legal fiction of corporate personhood. Roman Catholicism cannot sue the government—but the Archdiocese of Chicago can, for example. The University of Notre Dame can—and currently is, seeking an exemption from the ACA where it requires that all health insurance plans cover contraception methods recognized as safe for and beneficial to the general populace. They see it as a demand that they personally engage in the provision of products they find morally repugnant—for reasons that are at odds with the general understanding that enabling people to have infertile sex most of the time (without actually having to become permanently infertile) is a net win for society. The resulting question is how to tailor an exemption that meets as much of the religious need as possible, without diminishing the benefits of the law to the general populace.

Even Hobby Lobby Stores, Inc., can sue the government for redress of grievances, as though it had a religious right here—though by all prior case law it does not. The for-profit business incorporated under that name is neither entitled to any part of its owner's free exercise of their private religion, nor to protection by any connection to an establishment of religion. I'm getting ahead of myself, there, but you can see the how fuzzy the line can be between individual and corporate rights under the Free Exercise Clause, as well as the question of where the line should be drawn for the institutional exemption demands of the Establishment Clause. It remains to be seen how the court will respond to the suggestion that even for-profit business corporations, run by private individuals and incorporated for no express religious purpose, have a right to the free exercise of religion—as well as to what extent that right (if it exists) affects their clear legal obligations as for-profit businesses serving and employing members of the general public. [Update: You can read the oral argument transcript from 3/25 here. Very frustrating to me that no solid question was raised as to what makes a corporation, whether for- or non-profit, religious.]

For this reason, the Establishment Clause has become a matter of broad institutional rights to governmental non-interference, in which arguably religious institutions can bring suit against the government—or in which others legitimately wronged by government action respecting an establishment of religion can likewise bring suit. The rule of thumb here is that laws (or rules, or policy decisions, as for example made by public school districts, because the 14th Amendment goes all the way down) must be designed to apply to all individuals equally, for the sake of a compelling general interest, without privileging or penalizing any one religious group. (Which is basically the Lemon Test.) This is why the best we can do is often to leave space open for religious plurality—and the next best, if we insist on representing religion in secular spaces, is to intentionally represent that real plurality in as evenhanded a manner as possible.

This is also why we usually make laws as though religion were irrelevant—because it is, by law, for all secular governmental purposes—and then attempt to accommodate the free exercise of individuals in their groups after the fact. The governments of the United States at all levels are not permitted to recognize you first of all as a religious individual, as though your religion distinguished you from any other member of the general populace. As a citizen of the United States you are a secular person, first and foremost, and this is for your own good. As a person practicing a particular religion you may be entitled to certain exemptions from the laws of the land, but you are not entitled to your own laws, nor is the state at any level entitled to make laws tailored toward you, beneficial or otherwise, as a religious individual.

That, in very broad strokes, is the nature of the institutional exemption demanded by the Establishment Clause and so implied in the Free Exercise Clause. And, in the process of sketching it, I've already pointed to the individual right that we might call "freedom of religion" under the Free Exercise Clause. Of course, it isn't strictly an individual right, because of course the University of Notre Dame is suing for its rights of free exercise, and isn't an individual. But it is doing so as a corporate person, privately incorporated for expressly religious purposes as a Roman Catholic university. Its free exercise of religion is analogous to your own as a private individual and real person.

Exercise, not Expression

You, as an individual who practices a particular religion recognized as such within the United States, have a right to the free exercise of that religion, provided that you do not exceed certain necessary legal boundaries of our secular society. Meaning, generally, that you only have a right to exemption from little laws, only when they obstruct the practice of your religion, and only when that practice doesn't involve hurting anyone else. Rights are always subject to balance, because you are obliged to live peaceably as an individual among other individuals, all of whom have exactly the same legal rights as you do.

You may additionally have the right to protections as a member of a "suspect class," which is the word for a group of people who are routinely subject to harm for belonging to that group—but that means that you are not generally accorded your rights in an equitable fashion in the first place. "Christian" is not a suspect class in the United States, though "Muslim" should perhaps be. (Whether or not "Christian" could be thought of as a suspect class if Syria or Egypt or Iraq were governed by our laws is of no possible concern here; we are not even remotely an oppressed minority in this country.)

The fact that the legal system in the United States is designed to so protect those whose rights are not accorded them as a matter of fact should not in any way be construed as giving suspect classes "extra rights." There is a de facto inequality that these protections are designed to remedy. On the other hand, that remedy is frequently a matter of restricting the actions of those who oppress them. You are not free to infringe upon the rights of others, and the government is obligated to limit your rights to what can safely be guaranteed to all, and to enforce the balance. "Freedom" in the United States is not an absolute; it is a balancing act, subordinate to the ideal of equality. Your rights and freedoms are all limited by the simple fact that everyone else is equally entitled to them.

As a secular citizen entitled to petition, and a religious practitioner entitled to free exercise, you may therefore ask the government to allow you to do things that can be justified as necessary practices of your religion. The RFRA is in fact designed to expand this right, and to enshrine a greater respect for religious justifications for otherwise illegal acts (like the consumption of peyote, for example), so that they more readily lead to free exercise exemptions. But it's an affirmative defense. You admit that the law rules out X or Y activity, which your religion compels you to engage in, and you seek exemption from prosecution under the law by appealing to the higher principle enshrined in the First Amendment. And if you're lucky, and we can afford to grant the exception while upholding the general welfare, we give it to you. You may, in the process, be subject to very stringent demands that you prove how necessary such an exemption is for you, and how much you are entitled to it yourself. That's conscientious objection in a nutshell. And it's a very high bar!

However, and here's the key, that only applies to religious exercise. As a religious practitioner you have no special right to the protection of religious expression. There are no special versions of the last four clauses for religious speech, press, assembly, or petition. Religious speech is speech, religious press is press, religious assembly is assembly ... and religious petition for redress of grievances is usually petition for redress of religious grievances, at which point it's more clearly a matter of combining two things. You may have an expression issue and an establishment/free exercise issue, such as when your speech in an open forum is blocked by an agent of the government because of its religious content. But that speech has no special right over any other speech, simply because its content may be religious in nature. Religious opinions have no special rights over against any others. Religious speech is not trump—oppressed minority speech is trump.

And if, as a Christian in secular society, that means that you have to suck it up and treat others as equal to yourself in spite of your religiously-motivated opinion of them or their behaviors, that's the price we pay for freedom in this country. You protect their rights. You seek their good as equal to your own. You do not seek to enshrine your negative religious opinion in law, as though you could do so without violating the First Amendment prohibition against the entanglement of law and religion. And in so doing, you maintain a healthy interreligious saeculum, in which your religion is tolerated along with the rest. Because, in the end, you and your religion are only one among others in this country. You all only survive by recognizing that fact. That's how this country was founded: keeping the balance that ensures peace between religious sects that are at odds with one another, and refusing to allow anyone to gain an advantage on the basis of religion.

Epilogue

I am a Christian theologian, and I live quite happily within this reality. In fact, I find it vastly preferable to any possible system in which religious opinions could be the subject of laws, because I value my right to disagree with religious authorities and still obtain the benefits due me as a member of the state. That is my real freedom of religious expression, as a subset of my freedom of expression generally. I will gladly accept the limitation that I cannot engage in religious practices harmful to others, if it means that others are likewise prevented from harming me for religious reasons. I'd also like to think that I can respect the general good at my own expense. Of course, I don't belong to an authoritarian moral tradition, so it's easier for me, because I can learn, and my ethics can change.

On the other hand, I have become a pacifist, in spite of my upbringing and my learned tendencies toward violence, and I know that it is unlikely that I would qualify for conscientious objector status if I were drafted into the military. I would nonetheless feel obliged to refuse, and it's hard to know in advance how far that refusal would need to go. Violence is not clearly ruled out by Christianity; I have tried to rule it out for myself. And I acknowledge, and dearly hope, that one can be a relevant moral actor in the military. I have friends who do try. But I also know that I pay for this military whether or not I participate in it, and that I am guilty of its actions. I know that someone else is doing what I will not, and that they are in a relevant sense doing it for me. I know that we are given no clean moral ground on which to stand, only the ground we happen to be standing on at any moment.

We don't get to opt out of the social contract. Many aspects of my reality that should be morally repugnant to me are hidden by the privileged position I hold in this society, and in the world. And so I find it hypocritical to strain at gnats while swallowing camels. I would rather complain about the camels! There are worse systems than the one we live in here, and this one could certainly be better in practice than it is, by far. But I find no grounds to object to the principles by which it seeks to protect religious freedom, nor to what it actually defines as the limited scope of real religious freedom. I think there are real dangers involved in the current slate of efforts to protect nominally Christian actors from punishment for illegal acts of discrimination, and to rule out in the secular realm things certain Christians find morally problematic among themselves. Self-seeking behaviors that perpetuate our privilege strain at the gnats. We are not the ones who need protecting in this society, and it is better by far for us to seek equitable provision for and protection of all citizens, as far as it is possible within a society such as we have. Let us change laws for the benefit of others, not ourselves.

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