A truly inclusive meaning of religious liberty

Justice Kagan's dissent in the Town of Greece v. Galloway town meeting legislative prayer case received some criticism from those supporting its result for not going far enough.  I found it naive and misguided to expect the four dissenters there to attack legislative prayer across the board, even if Marsh v. Chambers as a first matter was wrongly decided.  

A somewhat better argument is that the dissent is concerned with nonconforming theists. I think this was a somewhat sensible approach -- it underlines the breadth of the problem of the majority -- but the most problematic thing there is that it disregards the atheist who was part of the lawsuit. This was also done by her own lawyer (or supposedly her lawyer) at oral argument when justices tried to flag the problem with a sort of "not blatantly sectarian test," one loyal to dicta (if dicta the swing justice here didn't join).  A secular group  suggested a different way:

“Recognizing that absent reconsideration of Marsh, this Court is going to allow prayer, it’s clear that if we want everyone to feel part of the political community, at a minimum, three things must happen: one, the local government must take explicit steps to ensure that citizens know the views expressed in the prayer are not a reflection of the government’s position; two, citizens must know there’s no requirement to participate in the prayer; and three, opportunities to open the business meeting must be offered to all, including to nonbelievers who are willing to deliver a solemn secular opening.”

And, there have been cases where "nonbelievers" (find the word misleading -- nonbelievers in God or some similar supernatural concept, apparently) who have submitted such openings. The assumption, stated by some justices in the past, that solemnizing proceedings required deistic invocations alone is mistaken. The core problem, according to the appellate court below, was that the practice here was too sectarian.  At the very least, and the majority opinion at least says the opening should be there, a more inclusive approach was possible. This includes non-deists.

The dissent provided a chance to truly respect the diversity of religious belief in this country. It sadly did not fully take advantage of this, especially sadly because in the process -- again -- one of the very plaintiffs was thrown under the bus.  The focus on Jews, Muslims or Hindus might be more appealing, but as one reference shows, underinclusive:

These are statements of profound belief and deep meaning, subscribed to by many, denied by some. They “speak of the depths of [one’s] life, of the source of [one’s] being, of [one’s] ultimate concern, of what [one] take[s] seriously without any reservation.” P. Tillich, The Shaking of the Foundations 57 (1948). If they (and the central tenets of other religions) ever become mere ceremony, this country will be a fundamentally different—and, I think, poorer—place to live.

This definition covers the average atheist in some fashion, I'd think, and it underlines why I find concern "religion" alone is a discriminatory governmental interest is somewhat tedious. The concern is more appropriate, and the dissent shows the critics have some reason to be wary, if the term "religion" is given a more limited meaning.  Some belief in the supernatural of "magic genies" to cite one scornful comment.  So, I wrote a letter to Justice Kagan expressing the basics of the above. FWIW.

A broad view of religion, or even a more average view, also provides insight in major controversies of the day.  The case of Harris v. McCrae continues to be of special relevance when the House of Representatives votes to make permanent the ban on funds for abortion -- even when a woman's health is at stake.  As it just did.  I continue to share the arguments of the dissents in that case that this is an unconstitutional policy.

But, the opinion below added another wrinkle -- religious liberty.  The court below provided an extended discussion on the religious beliefs of various mainstream (that is, major religions -- Jews, Catholics etc.) groups and the influence of some on the ban in question. It summarized the "divergence in views among religious leaders" and that "the major religions whose views were presented all regard abortion as presenting religiously framed questions of moral right, moral duty and conscience, that they are in disagreement on the appropriate rules of conduct but in agreement that abortion is a morally grave undertaking in any circumstances, and that their sharpest disagreement concerns the role of civil government."  Of particular interest, given later conservative strains having an important role:

The Baptist Church has a long history about the family and responsible parenthood, and of persons electing this for themselves; these matters involve a decision-making process and require the exercise of conscience. There is no history of teaching that marriage necessarily requires children, that procreation is essential or a divine obligation of all people. It is for the people themselves to decide on the number of their children, because that is a value judgment. Conscience means moral awareness, and liberty of conscience means the exercise of one's moral awareness. Abortion presents a matter for individual moral decision, in a matter of ultimate concern respecting bringing a life into the world.

The opinion even provided a statement of the the General Board of American Baptist Churches in the USA against Catholic bishops that it believed were trying via public policy "to coerce the conscience and personal freedom of our citizens through the power of public law in matters of human reproduction constitutes a serious threat to that moral and religious liberty so highly prized by Baptists and so long protected for all people under the nation's policy of the separation of church and state."  The opinion found the ban on funds for medically necessary abortions unconstitutional in part because it unduly burdened* those making private religious choices in this area.  A free exercise problem.

For instance, the opinion stated that various Jewish faiths put the woman above the fetus, which was not deemed a "person." And, the positions of Christians were diverse here, not limited to the Catholic position:

The United Methodist Church affirms the principle of responsible parenthood and takes account, in the abortion context, of the threat of the pregnancy to the physical, mental and emotional health of the pregnant woman and her family; in that belief continuance of the pregnancy is not a moral necessity if the pregnancy endangers the life or health of the woman or poses other serious problems concerning the life, health, or mental capability of the child to be.

The opinion also provided a broad definition of "religion," one that reflects the one cited above.  The law was challenged as favoring one religion over another in breach of the Establishment Clause. The opinion here argued that opposition to legal abortion was a traditional secular position, one not in breach of the clause.  The Supreme Court also noted that there was no religious purpose here.  Both are somewhat weak in truly examining the mind-set behind the law, especially since it burdens women's health.  The dissents did not address the religious arguments. Unfortunately.

The Supreme Court did not refute the free exercise argument, which was stronger before Oregon v. Smith.  It held that there was no proper litigant truly making it.  This is rather weak -- if pressed, it is hard to imagine there wasn't lots of women involved who was deeply influenced by religious beliefs in choosing an abortion in such and such a case. It is most definitely the case that religious or if you wish moral beliefs motivate many here. Since the claim is left open, did anyone try it later on? I know of no attempt, which is admittedly somewhat unlikely to win. Still, it very well might if the merits are taken seriously.  As seen in the Hobby Lobby case, many did not -- in effect, it is the wrong sort of religious belief.

Religious belief is a major factor in human society, so it is not surprising that many controversies involve it as a major factor.  The right to privacy or some similar analogue in effect has a free exercise component here -- for instance, Lawrence v. Texas rejected mere personal moral opposition as a legitimate state interest to ban same sex sodomy.  Some "public" purpose in necessary here, even if it might be phrased in some value-laden terms (we can call this "public morality")  such as harm to others.  "Moral" here is full of religious content in these debates. It seems useful to take this into consideration, especially since by some accounts favoring one side is apparently necessary to honor "values"  or "religion." 

True freedom, including religious freedom, true equality, requires more. It requires a broad freedom to make decisions in these areas pursuant both to personal needs and personal "religious" beliefs as well. If one wishes, though it is unnecessary, this can be said to include doing so without one. And, examining practices in First Amendment contexts without a truly inclusive approach in problematic. It risks not recognizing many people.

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* The term "undue burden" was not merely an invention of the Court later in Planned Parenthood v. Casey.  In the Medicaid funding rulings, "undue burdens" were cited, apparently since this is ultimately a test of substantive due process. The test need not in that fashion be a reflection of some intermediate protection between "strict scrutiny" and rational basis.