Separation of church and state slowly erodes

Gordon L. Weil          

This week, the U.S. Supreme Court ruled that a large Latin cross on public land in Maryland was no longer a religious symbol, but merely a tribute to fallen American soldiers of any faith.  Government was not giving special status to a Christian symbol, it ruled.

This blurring of the line between church and state takes place in a country in which religious belief is increasingly given special status.

We now run the risk of government a la carte, a system in which people can choose which laws they are willing to obey.

When religious belief conflicts with public policy, individuals may demand a choice not to obey the law.  Vaccination, same-sex marriage and abortion all raise this issue.

The Constitution's drafters thought they had avoided such conflicts.  Government can neither endorse any religion nor prevent people from practicing their religion or none at all. 

Of course, government leaders are influenced in their policies by their opinions and religious beliefs.  They may be guided by those beliefs, but they must stop short of imposing them on others.  Neutral laws, applying to all, are supposed to be adopted by government in the name of the people.

This approach arose from the emphasis on personal freedom, central to the American political system.  The threat, as Europe's history taught, was that government would force religion, perhaps even a specific religion, on the people. 

In practice, government did not impose religion on anybody, and it accommodated a wide variety of religious beliefs.  Such action was not merely meant to prevent laws that endangered the free exercise of religion.  So long as others were not harmed, it served to facilitate individual belief.

A clear example has been conscientious objector status.  When men were required to provide military service, those who refused to kill another person, even in defense of their country, could be assigned non-combat duty.

The risk to others of allowing some people not to obey the law may result from a conflict between religious belief and the public interest as defined by government.  That has happened in recent years over the issue of vaccination.

Decades ago, medical science demonstrated that inoculation against certain diseases could prevent their spread, even to the point of eliminating them.  Starting vaccination among children was usually the most effective method of preventing the spread of illness.

Without scientific evidence, but as a matter of belief, some people concluded that even if vaccinations prevented some diseases, they caused other maladies.  As a result, they chose to opt out of government-required vaccinations, a practice that was adopted by some religious groups.

While there was no evidence to support the belief that vaccinations caused illnesses, there was mounting evidence that the absence of vaccinations could allow the spread of fatal diseases that had almost been eliminated.  In short, opting out has an effect on others, not merely the children who were not vaccinated.

Vaccinations are under state control, and previously only two states denied a religious exemption from required inoculations.  With the spread of measles this year, the number of states accepting only a medical exemption has grown to five, including Maine, which acted this year.

A conflict between religious belief and public policy has also arisen as a result of the Affordable Care Act requiring access to contraception.  Before the passage of the ACA, the U.S. Supreme Court, led by conservative Justice Antonin Scalia, ruled that religious belief could not overrule a neutral law of general application.

Congress then passed a law requiring courts to decide if a law subject to dispute on religious grounds was the least burdensome way of accomplishing a public purpose and, if not, to overturn it.

The result was that a company can inform the government it will not provide contraceptive coverage under the ACA, because such coverage is against the religious beliefs of its owners.  The government may then tell the insurer to provide such coverage.

Undoubtedly, the greatest conflict has arisen on abortion.  As a matter of religious belief, some find that abortion amounts to taking a life, while many others see it as a legal medical procedure, performed at the discretion of a woman.

While the Supreme Court has ruled that abortion is not prohibited by the Constitution or laws, the controversy continues.  Under their control of medical procedures, some states have imposed conditions intended to virtually prevent abortions.

In contrast, Maine this year required insurance coverage for abortions and funded this coverage in the low-income health plan

Conflicts between neutral laws and religious belief take on huge political roles.  Parties may exploit them as "wedge" issues, adopting positions on them to gain almost blind support for their policies on many other issues.  

Far from the Constitution's intent, religious belief may end up getting special consideration in government decisions.  The result could be an expanding menu of government policy options, with choice left to individuals, rather than a uniform set of general laws.