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Free to exercise; not to establish

celebration of religious freedom
celebration of religious freedom

"Your right to swing your fist," the old saying goes, "ends where my nose begins." Recent legal battles over so-called RFRA statutes, the "Religious Freedom Restoration Act" have pointed out how unclear it can be just how far that nose sticks out. Originally passed in 1993, the RFRA states that "Government shall not substantially burden an individual's exercise of religion." Proponents of the bill at the time were primarily interested in addressing cases that had arisen out of penalties and limitations that had been laid against practices within the Native American Religious traditions. Did the right to freely exercise one's religion extend to performing sacred ceremonies on public lands, if those lands had been held sacred for generations? Does it extend to using peyote in religious ceremonies when mescaline is a controlled substance?

The RFRA required that the Federal Government demonstrate a "compelling interest" why any restriction on religious exercise need be enforced, and find the least restrictive way to limit it. Under the act, not only have Native Americans been freed to observe their traditions, but so have Sikhs, Jews, Quakers, and other religious minorities.

More recently, though, those proverbial noses seem to have grown longer. A bill in Arizona that would have permitted business owners to refuse to serve customers if they demonstrated that the refusal was based on a firm-held religious belief passed the legislature and was headed for becoming law until the Governor vetoed it. Another case will come before the Supreme Court later this month considering whether the Affordable Health Act violates the religious liberty of companies like Hobby Lobby and Conestoga Wood Products by requiring employee insurance coverage to include birth control.

In an article over at , Emily Bazelon suggests that such cases may be giving religious freedom "a bad name," leading some opponents to declare that the RFRA is unconstitutional. Not so fast, she argues. The issue in these new cases is not about religious freedom, but about whether corporations and businesses have the same rights to religious exercise as individuals. Does a company have a "nose"?

The problem becomes acute when one realizes that by arguing that complying with a governmental requirement would violate the religious exercise rights of the owners, those very owners are stating that it is perfectly fine for them to impose their religious values on others: their customers and employees. So perhaps their right to swing their religious fists is limited by my religious (or non-religious) nose.

The debate is likely to rage hot and heavy for some time. But this, it might well be said, is the price of preserving our religious liberty.

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