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.