Freedom of Religion

No matter what religion you profess, including none, most of the rest of the people in the world disagree with you. If one Googles the number of adherents of the world’s religions, one finds, out of a total world population of about 7 billion people:

(Catholics: 1.2 billion, Protestants: 670 million)
2.1 billion (33%)
Muslims 1.5 billion (21%)
Hindus 900 million (14%)
Buddhists 376 million (6%)
No religion 1.1 billion (15%)
Jews 14 million (0.22%)

These numbers do not add up to 7 billion and the percentages do not add up to 100 because many of the minor religions of the world have been omitted to save space. But these numbers clearly illustrate the point that religious opinion and practice are highly variable worldwide. There is nothing close to a majority opinion or faith. If there are many gods such a finding is understandable. Different gods spoke to different people at different times in different places and in different languages. Such an argument is further complicated by the observation that, even among Protestant Christians, there are several subdivisions that disagree among themselves over various points of doctrine and practice. The same can be said for Catholics, Jews, Buddhists, and Muslims. By this reasoning the number of different gods may be truly enormous, as envisioned by the ancient Egyptians and current Hindus.

If there is only one God then (He) has been surprisingly unclear about (His) commandments and wishes. Otherwise we should have a more uniform understanding of (Him) and (His) pronouncements. This confusion about just who God is and what (He) did and said started very early. If one reads “Who Wrote the Bible” by Richard Elliot Friedman, one can see how the Torah (the first five books of the Bible) was constructed from several different sources that told different stories about God’s role in creation or about Noah and the Flood, for example. It is common to ignore the internal inconsistencies in Biblical stories but they are there and easy to see if one simply reads the stories and then asks, for example, did Noah take one pair of each kind of animal on the ark or one pair of each of the unclean animals and seven pairs of clean animals? (Genesis, Chapters 6 and 7)

Since we have so many religions worldwide and even here in the United States, how should we treat their various adherents with respect to our concept of “religious freedom?” The First Amendment to the Constitution, adopted in 1789, reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” Article VI had previously stated, “…but no religious test shall ever be required as a Qualification to any Office or public Trust under the United States.” This article was adopted even though several states at the time had established religions and would prohibit practitioners of non-established religions from holding local or statewide office or serving on juries. The usual objects of such discrimination were Jews, Muslims, and those who professed no religion.

The evolution of the First Amendment is instructive. James Madison first proposed, “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.” And he proposed this as a Second Amendment, “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” During the summer of 1789 the House and Senate considered these proposals and they went through the following changes.

1. “No religion shall be established by law, nor shall the equal rights of conscience be infringed.” This modification provoked the objection that those who professed no religion at all would be protected by the above language.

2. “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.” Although Madison considered the rights of conscience to be an example of the “inalienable rights” mentioned in the Declaration of Independence, this wording still protected those who professed no religion or who professed the “wrong” religion such as Jews and Muslims or Roman Catholics.

3. “Congress shall make no laws establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion.” The concept of protecting the rights of conscience had been omitted because such wording just simply would not pass both houses.

4. Finally, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” This was adopted. There is no “right of conscience” and one might also interpret it to prohibit Congress from passing a law respecting a state’s established religion. This was just how six states did interpret this language because they had established religions at the time. Madison had wanted to prohibit the states from violating the equal rights of conscience but Congress would not agree. The recent Blunt Amendment to the Highway Bill in the current congressional session tried to reintroduce a “right of conscience” but lost again in the Senate. For a blow by blow description of the deliberations that led to the rather ambiguous wording of the First Amendment see, “The Myth of American Religious Freedom,” by David Sehat, Oxford University Press, 2011.

So, how should we proceed when some faiths want to prohibit contraception or, to be more graphic, practice clitorectomies on their adolescent females because they come to the USA from some African or Muslim societies where the procedure is common? Is the prohibition of contraception or the practice of clitorectomy the free exercise of religion? I believe that we must admit that both practices are. An examination of our history will also reveal that those who framed the Constitution were quite comfortable with restriction of religious practice on the part of those who were not basically Protestants of one sect or another. This does not mean that we should do the same in the 21st century; it only informs us as to the state of mind of many of the Founding Fathers. Now, turning the question around, do those in this country who do not want their adherents to practice contraception, have a “right of conscience” to refuse to provide it to others in the society that they employ and who do not practice their religion? I am referring, of course, specifically to the Roman Catholic Church. The history of the debate over the “right of conscience,” first proposed by Madison would suggest that they do not. We citizens must respect the right of those who do not wish to practice contraception but these people in turn must respect the rights of those who do wish to practice it. The Catholic Church currently does this by providing health insurance including contraception to female employees at several of its universities, medical schools, and law schools. We know that women, Catholic or not, when provided the opportunity to use contraception or even have an abortion, do so for a variety of reasons. Not all religions prohibit contraception and there are also a lot of non-religious reasons to use it. There is a tension here in these respective rights and the Constitution does not resolve this tension. If this question ever makes it to the Supreme Court, I predict that the ruling will be divided based on the individual Justices’ own basic life philosophies.

The question of clitorectomy is even more thorny because it raises the issues of cruelty, women’s sexuality, men’s control over women and so forth. This practice has never been part of European and American society so it seems foreign and repugnant and easy to reject regardless of what the Constitution may say. I hold this view but I can understand how people from a different culture would defend the practice. I have not been persuaded by such arguments and so would advocate that the state would prohibit it regardless of what the Constitution says. It is a medically unnecessary procedure that reduces the quality of life of the recipient. I would hope that we would not need a constitutional amendment to accomplish such a prohibition. Earlier in my career I was on duty in an Emergency Room when the attending physicians got a court order to permit them to do an appendectomy on the child of Jehovah’s Witnesses who would not sign permission. This seems to be a similar problem that has been resolved without an amendment. The principle invoked has been that the parents have a right to practice their own beliefs with regard to their own individual health care, but they do not have a right to endanger the life of another, even their own child, because of the free exercise of their religious beliefs. This is not clearly covered by the Constitution but it is a reasonably common practice in medicine. Refusal to vaccinate children is a similar problem that is currently treated more permissively.

Perhaps the best advice to follow when there is tension created by religious belief and secular, particularly medical, practice is to remember, “No matter what religion you profess, including none, most of the people in the world disagree with you. “ Modern science and medicine have created opportunities for our citizens that were never envisioned either by the authors of the Bible or the Founding Fathers. Both the Bible and Constitution permitted slavery. It took a war costing 600,000 lives to overturn this institution. Let’s hope that we can be more intelligent and less recalcitrant in resolving our present and future religious, medical and social challenges.