by Barry Edelson
Become a Patron


Defenders of the Faith

The Courts Should Not Even Hear
Most Cases about Religious Rights


"Going to church on Sunday doesn't make you a Christian any more than sleeping in the garage makes you an automobile."
– Garrison Keillor


It ought to come as no surprise, in a nation founded in part by migrants who were fleeing religious persecution, that we should continue to bestow some manner of special consideration on the freedom of worship. And yet it still seems incongruous, if not absurd, that after centuries in which church-going of all descriptions has proceeded entirely unimpeded by the government (if not always by our fellow citizens) in every corner of the land, the Supreme Court should need to waste any time at all deliberating on the boundaries of religious liberty. Nonetheless, the court chose to hear arguments the other day on whether a prisoner's rights were being violated because he was not allowed to grow a beard as part of his adherence to Islam. Pity the prison barbers.

We could expound at length on the question of why a convicted felon should enjoy his right to worship when nearly all other rights enumerated in the Bill of Rights are denied to him without any recourse to the law. Prisoners are unable to assemble at will, their speech is restricted, they are subjected to searches and seizures that would be humiliating and intolerable to any free person, and they certainly cannot bear arms. Apart from the rights that specifically relate to criminal prosecutions and incarceration — such as being entitled to due process and trial by jury, and prohibitions against double jeopardy, self-incrimination, excessive bail and cruel and unusual punishment — the other individual liberties set forth in the Constitution are categorically and inarguably denied. It is a settled matter both in law and the public mind that someone who has been convicted of a serious crime has surrendered his rights, period. While we ought not to be abusing prisoners, if not for sake of the men and women behind bars themselves but to preserve our own decency as a society, one would be hard pressed to find any significant number of rational people who are troubled by the idea that convicts need permission to the use the telephone or shouldn't be allowed to carry sharp implements even for self defense. We didn't have to watch "Orange is the New Black" to know that being a prison inmate is physically and psychologically awful. But losing their freedom is the whole point of being punished for their crimes in this particular way.

Why, then, is religion an exception? It surely can't be because proselytizing is a way to get hardened criminals to become better citizens upon release. The number of self-described Christians who turn into white supremacists in jail, and newly converted Muslims who are only too eager to try out their newfound understanding of violent jihad, surely outnumber those inmates who are transformed by faith into social workers and missionaries. If prison authorities see fit to permit inmates to gather for worship under the kinds of strictures that govern all other prison activities, that would certainly be consistent with society's understanding of what it means to be behind bars. But to allow prisoners to file suit in federal court over the infringement of petty religious rights is a giant leap too far in that understanding, and opens the courts to all manner of ridiculous claims of this nature.

If the slippery slope argument does not impress you, consider how we have come to the current pass regarding the freedom to pray. In the current case before the Supreme Court, Holt v. Hobbs, the plaintiff does not purport to impose his chosen brand of moral persuasion onto anyone else (not that as a devout Muslim he wouldn't do such a thing, but it's not what his case happens to be about), but it follows close on the heels of a decision in which a petitioner demanded precisely that he be permitted to enforce his religious preferences upon others. The notable case is Burwell v. Hobby Lobby, in which a majority of justices sided with a company that it does not have to provide objectionable medical coverage (i.e., birth control) to its employees that its owners do not "believe in". The decision begs the question of how exactly the immortal souls of Hobby Lobby's owners are imperiled by the individual actions of its employees. To use a more straightforward example, if a cashier shoots someone to death on her day off, having used her wages to buy the gun, is her employer legally and/or morally liable? Based on the majority's reasoning, the answer is unequivocally yes. The court, however, did not address this concern.

But, you object, medical coverage is different because it is supplied by the employer. All right then, what if the employer belongs to a sect that doesn't believe in blood transfusions or organ transplants or some other kind of medical intervention. Is the employer condemned to damnation if an employee uses his or her coverage to get a life-saving operation? Hardly. Should such a company nonetheless get a waiver from providing coverage? Obviously. We have slipped so far down the slope of allowing religious liberty to dictate unrelated behavior that these arguments are no longer far-fetched. Even the government's fundamental state interest in keeping its citizens healthy and productive is called into question. As its detractors frequently lament, who decides what healthy means, anyway? Where does the government get off trying to tell us what kind of food is bad for us or what kind of medical services are beneficial? We can decide that for ourselves, based on the free exchange of information that flows to consumers from the wonderfully unfettered food and medical industries. If I wanted someone to tell me how to behave, I would go to church. And please pass the bacon.

There have always been politicians for whom religious fervor is just another means of inflicting their will upon the people. Wearing their faith on their sleeves is just another calculating tactic by which candidates try to convince voters that they share their "values". What is different now is that, as individuals, we used to have much more effective bullshit detectors. It seems that larger and larger numbers of citizens are willing to give politicians a blanket waiver on questions of religion and morality. If they claim to be family-minded, fetus-loving, marriage-defending Christians, then that's good enough for certain voters. The problem, of course, is that the most ardent claims to moral superiority invariably turn out to be as false as Judas. How many times do we have to find out that some self-professed mother of the faithful also turns out to have had an abortion on her resume, before we start discounting these claims of religious purity? How many gay-bashers need to have an illicit encounter with a member of the same sex emerge on Facebook, how many have to be exposed as deadbeat dads, how many have to be found out to be just plain corrupt, before we learn to stop putting our trust in anyone who claims to have Jesus as his campaign manager?

These matters may seem far removed from the case argued this week, but it is only in the context of our religion-smitten culture that it could have advanced as far as a federal courthouse, let alone the Supreme Court. If we treated faith as just another matter of personal conscience, and had the self-respect to keep it to ourselves, it would be much easier to leave one another alone about it. But when it is waved in our faces incessantly by those who are not content with being free to pray as they wish, but who are hell bent on getting everyone else to pray the same way, it is hard to be sanguine about the prospect of civil society. It serves the Christian right right to have to defend the rights of a born-again Salafist whose fellow adherents (like the nemesis of the month, ISIS) are targeting Americans, Jews and other infidels all over the world.

Presumably, when the justices sit down to deliberate on this case, it will not matter to them which religion the plaintiff belongs to, and that is a good thing. But it ought not to have mattered one iota in the first place which of the inmate's rights was being violated. Maybe prison officials are indeed being stupid about his half-inch beard. It is hard for anyone to get exercised about it, not because he's a Muslim, but because he's in jail for stabbing his girlfriend in the neck. If he were suing over some other right that had nothing do with his religion — unless he was being tortured or denied medical treatment or some such violation of human decency — his case would almost certainly never have seen the light of day. Not until we can someday confine religion to the same category as all of our other rights can we call ourselves the nation of laws that we purport to be.


October 11, 2014


Become a Patron

Go to top of page

Return to home pageSend an e-mail

All writings on this site are copyrighted by Barry Edelson. Reprinting by permission only.