The Emperor's Clothes: Religious Freedom and BYU Law's International Center for Law and Religion Studies

A few days ago I received an email from the J. Reuben Clark Law Society of which I am a member:

December ICLRS Religious Freedom Discussion

Please plan to attend our next Religious Freedom Discussion on Wednesday, December 5, 2012, from 12-1 p.m. MST when Professor Robert T. Smith presents “A Contest of Greatest Importance: The Battle over the Meaning of Religious Freedom.” 

I can't wait. I just registered for the webinar. I would like to participate in the dialogue: to that end, I will comment on the text of the invitation below in blue.

In an important address delivered at BYU-Idaho titled simply “Religious Freedom,” Elder Dallin H. Oaks stated: “There is a battle over the meaning of that freedom. The contest is of eternal importance, and it is your generation that must understand the issues and make the efforts to prevail.” (Emphasis added).

To prevail in this battle, we must first understand what is at stake. We intuitively understand that persecution or torture based on one’s religious beliefs is a gross violation of religious freedom. But what of the government requiring Catholic schools and hospitals to provide contraceptives as part of their employee health insurance plans? Is this a violation of religious freedom?

What indeed? I think Elder Oaks and I would agree that there is an inherent tension between the government's constitutional interest in protecting religious freedom and other legitimate government interests. I would add a few "what of's" to Elder Oaks' borderliner example. What of:

• Some people being exempt from complying with federal laws prohibiting animal torture and slaughter, out of a religious practice of animal sacrifice?
• Some organizations being allowed to terminate an employee based on that employee's status within a particular religion? (e.g. CPB v. Amos, where a man’s exercise of religion cost him his job at the hands of the LDS church: SCOTUS said, “Undoubtedly, Mayson's freedom of choice in religious matters was impinged upon, but it was the Church (through the COP and the CPB), and not the Government, who put him to the choice of changing his religious practices or losing his job.”)
• Religions being privileged to discriminate in other ways comparable organizations are prohibited from doing, e.g. refusing to hire on the basis of sexual orientation? 
• A religious marriage practice (polygamy) being criminalized?
• The United Congregation of Paul employees opting out of paying social security or other payroll taxes?
• Some people getting a pass on peyote or cannabis consumption due to religious affiliation?
• A parent being privileged to prohibit their children from being educated past eighth grade due to religious belief?
• Some children being denied needed blood transfusions due to a parent's religious belief?
• Parents being privileged to compel the religious participation of their adolescent children?
• Some organizations (say, the Jewish Transhumanist Association) being exempt from complying with federal genetic engineering regulations?

Though I don't immediately answer these questions, I think Elder Oaks and I would agree that there should be both a floor and a ceiling to the scope of religious freedom. I think we also both agree that religious speech (declaring one's religious affiliation or beliefs, and preaching and publishing about the contents of those beliefs) is safely nestled between those two bounds.

The answer depends in great part on how we define what religious freedom is.   

I absolutely agree. Let me speak to what I consider to be three crucial criteria, admitting my lack of scholarship on the subject:

Whether we construe religious freedom as an individual or an institutional liberty 

The First Amendment identifies both an institutional (establishment of religion) and individual (free exercise) component to the religious freedom protection. The First Amendment contains a mix of individual and institutional liberties: press, assemble, speech, and petitioning. Prayer in schools and religious displays in public places capture most of the borderline controversy on the establishment (organizational) side: free exercise is where most of the action centers.

Institutional and individual religious freedom frequently conflict. For example, the policy at BYU is to kick out those who convert while at BYU. More narrowly, the burden falls on the religious freedom of the LDS majority: you can come Muslim and leave Catholic, or come Presbyterian and leave Mormon, but if you come Mormon and try to leave atheist or Rastafari, you lose the ability to (1) enroll, (2) graduate, and (3) receive an otherwise-earned diploma.
*[For the sake of disclosure, I should mention that I have fiercely and publicly opposed this policy (see my activism and writings here, here, and here). I should also note that my brother is a victim of the policy (a BYU senior, he chose to be forthright about his conversion to atheism and was consequently barred from graduating)].

The bottom line is that religious freedom is often a zero-sum game: the religious institution cannot simultaneously retain the power to terminate a student or employee on the basis of religious exercise while the individual enjoys protection from the same.

Joseph Smith embraced the individual worship aspect of religious freedom in the well-known Article of Faith 11:
“We claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may.”  He certainly claimed that privilege previous to establishing a religious order: he entered and exited the grove without a religious affiliation, and endured persecutions long before organizing the church.

On the other hand, the article does use plural terms (we,
our, men, them, they), and Joseph did subsequently canonize a position on institutional religious freedom:
"We believe that all religious societies have a right to deal with their members for disorderly conduct, according to the rules and regulations of such societies; provided that such dealings be for fellowship and good standing; but we do not believe that any religious society has authority to try men on the right of property or life, to take from them this world’s goods, or to put them in jeopardy of either life or limb, or to inflict any physical punishment upon them. They can only excommunicate them from their society, and withdraw from them their fellowship.” -D&C 134: 10"

Does one's progress towards graduation or livelihood constitute "this world's goods" that are deprived from Church LDS employees or LDS BYU students that elect to follow their religious consciences into atheism or Catholicism? Would a policy of disfellowshipment or excommunication alone be more in harmony with both secular and Doctrine and Covenant constructions of individual and institutional religious freedom? To what extent does one or the other prevail when constructing religious freedom?

How we discern between religious and non-religious activity

This criteria must be defined as well to answer the constitutive question of what religious freedom is. I table discussion of this question here and here.

What level of burden qualifies as an impingement

Let me start by pointing out that the religious freedom scope properly centers around how burdened religious exercise is, rather than actual restriction of religious belief or practice. For instance, being unable to detect an internal belief, the state cannot forcibly restrict the same. Instead, they can only regulate the expressions of religious belief: religious exercise. That regulation can vary from light to heavy.

Torture or execution as a result of one's attendance at church or declaration of religious affiliation is clearly an excessive burden on religious exercise. Requiring an organization to (1) identify as a religion, or (2) comply with campaign finance laws, though burdensome at some level, are examples of light impositions. The magnitude of the burden can and should matter when defining the scope of the religious freedom privilege.

Now that we've identified three essential criteria that must be defined to answer the constitutive question, let's return to the invitation email. 

Unfortunately, today there is great pressure to narrow the concept so that it includes little more than religious worship. Equality and discrimination norms increasingly label religious protections as contrary to public policy.
Some favor an outright rejection of the concept of religious freedom claiming that rights of speech, assembly and the press, which apply equally to all organizations, are adequate precisely because any additional protections in favor of religious persons and religious organizations are discriminatory.

I think this depiction of one of the arguments against favoring religious organizations is fair. However, there may be some merit to the evolving norms referenced. Certainly not all eighteenth century Constitutional norms are desirable (e.g. the lack of status of women and slaves), and indeed the harms free exercise was designed to mitigate may have shifted in a way that merits a directional change in interpreting the clause. In a zeitgeist where governmental/religious entanglement proved the most salient danger, the prohibition against favoring a particular religious establishment merited specific attention.

However, the cultural milieu which gives birth to oppressive behaviors has changed significantly. Past prejudices disproportionately targeted categories such as Jew, woman, and Black. Atheists, Muslims, and gays [in that order] now lead the charge in capturing society's vinegar. For instance: all else being equal, an atheist is about 8 times as likely to be rejected as a presidential candidate than a Jewish person.

SCOTUS's Justice Souter wrote: "government should not prefer one religion to another, or religion to irreligion." Given religion's gains over the last couple centuries and the deep cultural prejudice against the irreligious, is that latter juxtaposition perhaps now deserving of a greater relative share of attention?

An analogy to Affirmative Action schemes is relevant here. Though clearly discriminatory, affirmative action quotas can help to level an unbalanced playing field. Once the underdogs are on equal footing, though, their subsidy should cease. Given the robust legal and cultural safeguards in place to protect religious exercise and religious institutions, it may be time now to cease singling out activities and entities deemed religious for special privilege over irreligious activities and entities.

In this battle over the meaning of religious freedom, historical arguments are being amassed suggesting that our Founding Fathers desired a “Godless Constitution.” Making this case, a scholar recently titled his book “The Myth of American Religious Freedom” because laws have historically favored moral conduct when by design the government should be amoral, giving no preference to conduct founded in religious tradition.

The battle over the meaning of religious freedom is thus shifting subtly as religious protections are labeled discrimination and preferential treatment of religion is decried as unequal. Unless we fully understand the meaning of religious freedom, we are in danger of losing this most cherished “First Freedom” of our Bill of Rights as it is inexorably defined away, leaving little left to be protected.

This argument relies on four logical fallacies: (1) the straw man argument, (2) non sequitur, (3) failure to state, and (4) argument from popularity.

First, the argument depicts Mr. Sehat asserting that the government should be amoral by design, and that the Founding Fathers wanted a Godless Constitution. In contrast to that depiction, Michelle Deardorff proposes a fairer summary of the scope that work:

"David Sehat’s book, THE MYTH OF AMERICAN RELIGIOUS FREEDOM, is an engaging exploration of the continuous and seemingly irreconcilable debates over the meaning of the free exercise clauses found in the federal Constitution and in numerous state-governing documents. An intellectual historian, Sehat argues that many of our current debates between the political left and the right, particularly the Christian right, are situated in both groups’ mythologizing the Founding and the free exercise clause, as well as in their interpretation of religious liberties. Ask any schoolchild or most educated adults about the origins of our nation and most Americans will reply that a group of colonists, persecuted for their religious beliefs and practices while in Europe, came to the New World seeking religious liberty. While they initially preserved their own religious beliefs, they soon came to believe that their sole salvation would be in the protection of the religious beliefs of all. In the retelling of this myth, conservatives focus on the centrality of personal religious belief in this narrative and liberals emphasize the emergence of liberty of individual thought. THE MYTH OF AMERICAN RELIGIOUS FREEDOM argues that not only are both versions, and most Americans, wrong with their iterations of history, but that these competing myths can be traced back to the late Eighteenth Century and through the intervening decades. Because political adversaries are using identical language to convey vastly different ideas, the conflict between them is inevitable and dramatic. Sehat contends that if there was a more accurate understanding of the notion of “religious freedom” as it was initially conceived and if both parties understood the suppositions beneath their contentions, at a minimum, a more civil discourse could emerge and ideally we would generate a better understanding of our own history of religious conflict."

Second, the assertion relies on the proposition that preferring conduct founded in religious tradition is necessary for a moral government. This is a non sequitur, as religions do not enjoy a monopoly on morality and moral governments can exist bereft of a preference for conduct founded in religious tradition. Additionally, the argument asserts the necessity of understanding the meaning of religious freedom to avoiding the risk of losing the same. However, it is possible to prevent that loss without a full understanding, and in any case even a full understanding is insufficient to prevent the risk, as it may well be the case that the narrower construction of religious freedom asserted by the opponents of preferential treatment matches and preserves the meaning of religious freedom, fully understood. To assert that a broader construction is the full meaning is to beg the question (I guess that brings the fallacy total to five): the thing to be proved is used as an assumption.

Third, though the argument knocks down the straw man it erected, it constructs nothing in its stead. Concluding that there is a need to understand the meaning of religious freedom may be necessary to avoid its loss, but pointing out the need is insufficient. Without establishing the affirmative case, how will we know whether or not religious freedom is lost?

Last, the argument appeals to the presumed bias of the largely LDS audience: even if the audience similarly decries the inexorable loss of a cherished freedom caused by the godless's unfortunate labeling activity, popular does not equal right. Bloodletting was quite popular and revered, but also dead wrong (in addition to deadly).

I think a more interesting argument revolves around the relative benefits religious organizations offer, and how to allocate the cost of privileging the generators of those unique benefits. For instance, there is a basic liberty value in allowing people to take up whatever hobby they want. However, the shoplifting enthusiast, anti-poverty activist, and rugby fan do not all contribute value equally to society through their hobby activity. There is a reasonable basis for curtailing the shoplifter's hobby, and for rewarding the anti-poverty activist.

Why should our state and federal judges privilege religious organizations over irreligious ones? Are the beliefs of Peace Corp disciples or the practices of Apple adherents less deeply held, or perhaps less beneficial, than that of Catholic ministers? Is the activity of Twilight fans or the NRA less valuable than the contributions of Sikhs or the Baptist church?

We might also ask: is favoring religion over non-religion necessary to elicit the unique benefits of religious activity? Compared to equally treating religion and non-religion, are the cost-benefit tradeoffs net positive?

This Discussion Series Lecture by Professor Smith will seek to clarify the definition of religious freedom so that its full meaning may be preserved.

Once again, the argument begs the question. Barely one sentence ago, criticism was leveled at the act of defining, namely the defining acts that constrict, rather than contract, the magnitude of religious freedom. The solution to the problem of identifying the proper magnitude of religious freedom cannot then merely be whatever definition leaves a lot to be protected. Criticizing the opponent's act of definition, then proposing the act of definition to resolve the question, only works if you assume what you set out to prove: specifically, that a definition broader than the opponent's is the correct one.
 
I have spoken with two BYU Vice Presidents and multiple actors from the International Center for Law and Religion Studies (including it's Director, W. Cole Durham) on the subject of religious freedom at BYU. None of these interlocutors seemed particularly exercised by the fact that LDS BYU students must choose between following the dictates of their consciences to convert on the one hand, and retaining the ability to enroll, graduate, and have their degrees post on the other. Were Brigham Young to follow his conviction to take on additional spouses while managing LDS facilities, he could not contest his own subsequent employment termination. Were Joseph Smith to have his First Vision while a LDS BYU junior, he could not himself graduate.

The ICLRS invites the world to convene on the campus of the very school that would unceremoniously withhold an otherwise earned diploma because a student answered the call of Islam to follow Allah.  That none of these well-informed men detect a level of hypocrisy in convening a discussion series that endeavors to define and preserve the meaning of religious freedom makes me wonder: am I missing something? Perhaps I am alone in the perception that the Emperor is showing just a little too much skin.

Just the same, I look forward to his speech.

The Religious Freedom Discussion Series is sponsored by the International Center for Law and Religion Studies at Brigham Young University, J. Reuben Clark Law School.