How much religious freedom is too much?

Sunday, June 22, 2003

Sultaana Freeman’s refusal to remove her veil for a driver’s license photo has touched a nerve. Talk-show exchanges and letters to the editor are filled with exasperation – even outrage – over the Muslim woman’s lawsuit against the state of Florida. If she doesn’t want to show her face, fumes one annoyed citizen, “let her take a bus or hire a chauffeur.”

Americans are all for religious freedom – but often lose patience when someone dares to practice it. Then again, sometimes a compelling public interest makes certain restrictions necessary.

The Florida fight isn’t an isolated incident. As America’s religious diversity explodes, a growing number of conflicts between religious conscience and government regulations are breaking out across the nation. Two other cases in the news illustrate the challenge:

  • Seventh-day Adventist students in Oregon sued to get the Oregon School Activities Association to alter the statewide basketball tournament schedule. As it stands, the students are barred from participating because the consolation round takes place on their Sabbath.
  • Two Amish farmers in rural Pennsylvania asked their township to exempt them from a town ordinance that bans horses. Since as a matter of faith they can’t drive cars, the farmers need horses to pull their buggies.

Annoying legal sideshows that clog the courts? Or vital issues of religious liberty?

The answer depends on how seriously we take the First Amendment – and not on what we think of the religious claims themselves. If religious freedom was easy – or confined to religious practices that are popular and simple to accommodate – then it would mean little. We’re supposed to be a nation that protects “free exercise of religion” for everyone – including the smallest minorities and least popular communities.

Why? Because 200 years ago people like James Madison believed that every person has an “unalienable right” to follow the dictates of conscience. By definition, a person of deep religious commitment looks to a higher authority than the state. “This duty is precedent,” argued Madison, “both in order of time and in degree of obligation, to the claims of Civil Society.”

Of course, Madison and other framers of the Constitution understood that religious freedom must have some limits. But they tried to invent a nation that would – for the first time in history – protect individual conscience in matters of faith as far as possible.

But how much freedom is too much? In these current cases, you might be tempted to draw the line quickly and narrowly (unless you happen to be Muslim, Seventh-day Adventist or Amish). But here’s the rub. Where the state has the power to draw the line for some, it has the power to draw the line for all. Today a law or regulation may burden someone else’s religious practice, but tomorrow it could burden mine or yours. And then it might be too late to argue for a robust application of the First Amendment.

Does this mean religious conviction should always trump the law? Of course not. Sometimes the state (acting for the common good) has a compelling interest in overriding a claim of religious conscience – and no less-restrictive way to accomplish that interest.

That’s exactly why Sultaana Freeman lost in court last week. The state of Florida demonstrated a compelling interest in promoting public safety, including the ability of police officers to quickly and accurately determine someone’s identity. In post-9/11 America, this case was a slam dunk for the state.

Whether or not you agree with the outcome (and I do), the Florida judge asked the right questions. A sincere religious belief should be taken seriously. But if the government has a compelling interest at stake, and if there is no other way to meet that interest except by uniformly enforcing the regulation, then the religious claim for exemption can and should be denied.

But the state’s interest isn’t always that compelling. Take the Oregon case involving the Seventh-day Adventist kids. Earlier this month a state appeals court ruled that a school activities association should make a reasonable effort to accommodate the religious beliefs of the students. Why not a change in game time? Or allowing a forfeit? Or some other reasonable accommodation? The court sent the case back – telling the state to look for a solution that allows these students to play basketball without violating their religious faith.

As for the Amish farmers, they’re supposed to get rid of their horses or start paying $100 per day in fines. If they file a suit, can the Amish win in court? They have a good shot.

Although the Supreme Court no longer requires governments to show a compelling state interest in many “free exercise” cases, Pennsylvania (like Florida and a number of other states) has a new religious-freedom law that may well apply. And Congress passed a few years ago a law requiring local governments to apply the “compelling interest” test in zoning cases. So give the farmers a fighting chance to keep their horses.

All of this makes life more complicated for the government, but where would you rather live? In a nation where state interests routinely override individual conscience – or in a nation where claims of conscience get a day in court? It may be messy, but what a glorious mess.

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