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State Religious Freedom Initiatives: Some Thoughts

Last night, the voters of North Dakota shot down an amendment to their state constitution in a vote that was not as close as many prognosticators predicted. In fact, a similar measure failed to get the required signatures for placement on the ballot in 2010 and just barely got enough signatures this time around. To read some liberal blogs and the ACLU, one would think that there is some vast conservative conspiracy to undo years of Supreme Court litigation when it comes to First Amendment jurisprudence. Admittedly, at times that jurisprudence has been scatter brained and ignorant of the history of religious freedom in this country. However, their (liberals) view that separation of church and state is under attack at the state level by overzealous Republicans is unwarranted. Besides the defeated North Dakota initiative, there are only two other such questions on ballots this year- a public prayer amendment in Missouri to be decided August 7th and a religious freedom question in Florida on November 6th. There are no other possibilities in the near future as the closest any state came was in Colorado and they failed to get it on the ballot. Hence, the constitutional armageddon they predict is nothing but hot air.

At first glance, these initiaives seem rather innocuous, stating the obvious. The North Dakota initiative stated: “The government may not burden a person’s or religious organization’s religious liberty. The right to act or refuse to act in a manner motivated by a sncerely held religious belief may not be burdened unless the government proves it has a compelling interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A burden includes indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.” A perfunctory reading indicates that it is an attempt to provide some protection to persons or religious groups based on recent actions throughout the country. For example, in Brooklyn religious groups are not allowed to use public shool facilities for any functions out of a fear that they are violating some tenet of separation of church and state. This North Dakota initiative would have short-circuited those concerns.

No one can argue that some of these cases are silly and an over-reaction by the authorities. Just this week, the Supreme Court refused to hear a case out of Texas where a student was disallowed from passing out a pencil that said, “Jesus Loves You.” The same school district prohibited children from saying “Merry Christmas” on cards t troops while allowing the more secular “Happy Holidays.” These instances, like the generic invocations at school graduations and such are examples of the mundane and the silly. One can surmise that North Dakota was attempting to cut through that nonsense.

As mentioned in past postings, the notion of a wall of separation between church and state is nowhere to be found in the Constitution. It does forbid the establishment of religion, an official state church at the federal level and later at the state level when the Bill of Rights were incorporated against the states through the 14th Amendment. This stemmed from their uneasiness with an established state religion that caused serious entanglements between religion and state in their native England. Not too long before, England had bloody, religious wars and they wished to avoid that scenario. The goal of the First Amendment’s Establishment and Free Exercise clauses was never intended to drive religion from the public square. In fact, the least religious of the founders- Thomas Jefferson- stated that “No nation has ever existed or been governed without religion, nor can be…”

The opposition to the North Dakota initiative argued that the proposed amendment would have had unintended consequences. Specifically, they state that people could conceivably hide behind a veil of religious liberty. They cite examples like potential child abuse, polygamy, animal abuse, domestic violence, and discrimination. For example, could an employer not hire or even fire an unwed pregnant woman because unwed motherhood offended their religious beliefs? Could someone engage in the ritual mutilation of cats or dogs as part of a religious practice? Would the state have to accomodate every obscure religious sect’s wishes? Conceivably, a David Koresh would flourish in North Dakota hiding behind this religious liberty amendment. Likwise, that rogue Mormon sect from a few years back could set up camp in North Dakota instead of Mexico. If nothing else, they argue, it could lead to endless litigation. And it could raise new ways for people to define their own extreme religious views. The potential is that it would be a boon to defense attorneys in criminal proceedings.

Proponents, however, point out that governmetal interests like child welfare, anti-discrimination laws and the like are addressed in the text of the proposal. It is just that the government (1) has to prove that interest and (2) use the least restrictive means necessary to further the interest. But, what is least restrictive when it comes to prortecting children from potential abuse? In any case, the voters turned down the amendment.

Instead, the next battleground will be on August 7th in Missouri. There they will vote on a public prayer amendment including prayer in schools. There are political reasons Democratic Governor Jay Nixon wants the quesion presented on August 7th instead of November 6th- get the conservative voters out early, not in the general election. The law would guarantee that citizens can express their religious beliefs publicly and that children have the right to pray in public schools. The amendment states that “no student shall be compelled to perform or participate in academic assignments or educational presentations that violate (their) religious beliefs…” At first glance, this appears to protect minority religious beliefs against those of the majority. But, the practical effect is open-endedness. What if a child has objections to something like evolution? Are they to be excluded from a biology assignment? What if a student objects to some language in assigned reading in an English class? Are there to be alternatives available?

The proposal also allows prayer as long as it is not disruptive. In fact, children are permitted to pray in school now- however, the school cannot lead that prayer. I don’t know the extent of the Muslim population in Missouri, but provided it is not disruptive, are teachers required to allow Muslim students to be excused to pray three times a day? And at what point does it become “disruptive?” Hypocrisy on the right is no better than that on the left. The chief sponsor, Mike McGhee, said this is a clarification of existing law, not new law. He claims it would not permit anything not currently permitted. OK, good enough. But then why the need for it in the first place?

The Florida initiative would rewrite a part of their State constitution that bans taxpayer funding of religious institutions and replace it with wording of the exact opposite- prohibit the state from withholding funds. Opponents may view this as the government openly endorsing religion. There is nothing wrong with government endorsemet of religion; there is a serious problem with government endorsemet of a particular reason. The fact is that religious organizations of many denominations- Muslim, Jewish and Christian- serve vitally important social services, many times more efficiently and productively than their government counterparts. However, like Missouri, the arguments are somewhat suspect. For example, religious groups in Florida can receive public funds if they perform a secular purpose. Obviously, direct public funding of one religion over another would be, in effect, endorsement and “establishment.” Opponents argue that majority religions would receive funding and that minority religions would be shut out from funding. It should also be noted that the religious organizations would become de facto government contractors and subject to regulatory oversight that may impinge on their free exercise rights. Of course, the main concern of opponents is that it would open the door to shool vouchers which is why the teacher’s union in Florida unsuccessfully sued to have the question blocked.

This is not like the Missouri or North Dakota questions since it addresses public funding of religious organizations. Personally, I have no problems with the government contracting the services of religious-based organizations to perform services they are better at delivering than the state. Churches have been in the business of adoption, helping the poor, and healing the sick long before the government got into those areas. However, despite their abilities, it is conceivable that certain groups would get preferential treatment when it comes to funding because of their beliefs. A perfect example would be a legislature who awards contracts to a religious organization which adopts a pro-life stance. That is the fear of liberals. But, that option is open to legislatures now as many have made that decision by withholding funding from pro-choice secular organizations like Planned Parenthood. If it is perfectly legal to so, and it is, then they can likewise withhold funds for religious organizations on the same grounds. What this amendment does is remove that blanket prohibition of funding religious social service organizations that exists in Florida and leaves the option of funding open. It strikes a balance between the two extremes of no funding to anyone under any circumstances (as exists now) and selective funding to only certain religious organizations (establishment possibilities).

If we cut through all the noise on the side of opponents, the real opposition to this amendment comes from the educational establishment in Florida. Namely, the FEA believes that this is setting the constitutional foundations for school vouchers, a program teacher unions are vehemently against. As stated in other posts by this writer, as long as there is no discrimination in the assignment of vouchers, parental choice in their child’s education should be a primary goal of any educational reform package. And as part of that, state per-pupil spending formulas should be portable with respect to those pupils in the form of vouchers. Why should the more fortunate have exclusive rights to private or even parochial educational opportunities? If the spending follows the child to a Catholic school or a Lutheran school or a Jewish school or even a Muslim school, then how can this be construed as an establishment of religion? Instead of viewing it that way, maybe opponents should view it as establishment of opportunity.

The problem is that these amendments and proposals would not even be necessary if the playing field had not been tilted so heavily in favor of liberal secularists. For the better part of the history of this country, prayer or reflection was permitted in schools, at public meetings, at commencements, etc. and this country was a beacon of religious toleration. It is ironic that a country essentially founded by people escaping religious persecution in Europe today turns it back on religion and its importance in society. Perhaps instead of turning to religion in times of national crisis and turmoil, that turmoil and crisis could be alleviated with a little more religion in everyone’s life. Why the overwhelming majority of Americans have to subjugate their beliefs to the possible offense caused to the small minority of those who do not believe in any deity begs for an answer. Its doubtful that James Madison and our other Founders- even Thomas Jefferson- ever believed that the First Amendment would prohibit a commencement speaker from thanking God or that it would prohibit football players at a state college from saying a prayer before a game. Or that parents of kids killed at Columbine would be prohibited from placing messages of a religious nature on plaques at a memorial to their slain children. Or that applicants at a christian college would be denied access to state grants. But, that is the world that secularists have created.

As explained earlier, these initiatives are well-meaning and attempt to level the playing field at the state level. But like with most things well-meaning, there are unintended consequences. With the initiative’s defeat in North Dakota, one needs to now look to similar legislation being considered in Kentucky next year (it was proposed too late to make it on this year’s ballot). In Colorado, proponents dropped their bid because of technical roadblocks in its way (proponents withdrew their bid). As concerns North Dakota, at least the Fighting Sioux nickname lives another day.

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