The dangers of definition-III

The final chapter.

Defining “sincere religious belief” is a potato too hot to touch.  That’s a fact of political life. The lack of definition is the phrase’s ultimate flaw at the same time it is its greatest strength.

By not defining the phrase, citizens are free to apply it however they wish.  But courts have held the arbitrary use of a law violates equal protection standards that are intended to apply to everybody.  That’s the dual nature of “sincere religious belief.”

There are those who think the Hobby Lobby ruling by the U. S. Supreme Court resolves the issue.  Actually it resolves only the specific issue raised by Hobby Lobby. There has been no broad blanket ruling covering all of the issues raised by religious freedom protection laws, which vary from state to state.

You and I might be able to write a definition of our personal sincere religious beliefs but trying to write them into law is pretty nearly impossible because it quickly becomes an issue of constitutional violation.  If the state adopts a definition of “sincere religious belief,” it is likely to face a lawsuit based on the Establishment and Exercise Clauses of the U. S. Constitution—a sentence that is often split for partisan purposes.

Congressman Fisher Ames of Massachusetts, a Federalist who defeated Sam Adams for a seat in the First United States Congress, wrote the Establishment Clause. He also wrote the Free Exercise Clause.

The Establishment Clause says, “Congress shall make no law respecting an establishment of religion,”   The Free Exercise Clause comes after the comma, “or prohibiting the free exercise thereof.”  Government will not show favoritism for one religion over another.  In addition, government will not prohibit people from exercising their religion.

SJR39 exposes a tension between these two clauses.  On one hand, it can be interpreted as the state expressing a preference for one religious creed, principle or dogma over another.  Backers of the resolution will argue from the second point—government will not limit an individual’s exercise of their religion.

The arguments for this resolution have been presented as if there are no limits on either point when, in truth, courts repeatedly have found limits to all constitutional rights are necessary to maintain order in society.

That’s why the legislature is not defining “sincere religious belief.”  Doing so would clearly violate the establishment clause.  Instead, the majority is relying on the Exercise Clause while diminishing the importance of the first half of that sentence, the Establishment Clause.

What you wrote earlier defining your “sincere religious beliefs” undoubtedly differs from what other readers of this post wrote in at least some degree.  Are your “sincere religious beliefs” more valid than theirs, so much more valid that they should be in the Missouri Constitution?  Are they so valid that you should be able to exclude others from your social or business circle becaue of them?  Is your definition so valid that the second half of the sentence in the Bill of Rights should prevail over the first?  And what legal argument can you make that it should be?

Perhaps this exercise suggests religious beliefs should remain the province of the person, not the policies of government.  In the more perfect union dreamed of in the Preamble to the Constitution, perhaps that would be enough.  But in the imperfect union that is the real world, where religion has become a political issue—perhaps to the detriment of religion as the increasing “nones” might indicate—it is not.

And that is where other parts of the constitution enter the discussion and could tip that balance.  That is assuming, of course, that majority interests care to listen to that discussion.  So far, it appears they do not because doing so would not curry favor with an important political base of support that has decided the exercise clause is the only thing that counts in that sentence.

But would the different people and different organizations within that political base all have the same definitions of “sincere religious belief?”  Would the legislators supporting this proposal be alike in their heart of hearts? Does freedom of religion within religion argue against one faction of religion imposing its position through the law?

Sponsors who have referred to opponents as “radical activists who perceive their agenda of greater value than protecting the religious freedom of Missourians” might have a point. But it’s the wrong point because many opponents of this idea ARE protecting the religious freedom of Missourians.  ALL Missourians. 

We have found from years of experience covering politics that if you cannot intellectually defend your position from those who see flaws in it, you can always call your critics names—such as “radical activists.” We cannot count the number of times that “radical activists” have been blamed for all kinds of things—many of which ultimately expanded, not limited, the rights of the general population.

The issue deserves something more to justify it than a vague phrase and a bumper-sticker slogan from those pushing it and from those behind them. And the general public deserves something more from their lawmakers than a piece of campaign-year legislation that the courts will have to deal with later but which pleases for now an ideological base that the lawmakers want to please.

We began this series with a scripture from Fisher Ames.  We conclude it with a verse from U. S. Supreme Court Justice Harry Blackmun:

“When the government puts its imprimatur on a particular religion it conveys a message of exclusion to all those who do not adhere to the favored beliefs.  A government cannot be premised on the belief that all persons are created equal when it asserts that God prefers some.”

Let me know what you think......