In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts.I've written a number of times on this blog that I think many people don't really believe the religion they profess to believe, and in the cases about freedom of religion — including Hobby Lobby — the courts tend to regard sincerity as a necessary component of a freedom of religion claim. But here is Justice Kennedy lumping striving to believe in with actual belief. There's still a sincerity issue, since one might pretend to believe without seeing the nonbelief as a problem to be overcome.
Notice how Kennedy's Hobby Lobby opinion tracks what he wrote in Lawrence v. Texas (quoting the opinion he co-wrote in Planned Parenthood of Southeastern Pa. v. Casey):
The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:That "right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life" corresponds to the right to "strive to believe in a divine creator and a divine law" and "striving for a self-definition shaped by their religious precepts." What matters is the search for meaning, and freedom doesn't begin only when you've found it, and it's at least as important when you haven't found it yet.
“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”
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Catholicism, at least, does not require that you actually believe in your heart of hearts everything the religion says is true. You are a good Catholic so long as you support the work of the Church and don't try to undermine it, and so long as you try to live in accordance with the moral teachings of the Church. You don't really have to believe in Noah's Ark or that all those Old Testament guys lived to be 120, or that the world is only 6000 years old, etc.
Of course, you might wonder why anyone would want to support a religion they don't actually believe to be true, but people have have what seem to them to be good reasons. Who are you or I to question their sincerity?
"Who are you or I to question their sincerity?"
What if you are a judge dealing with a lawsuit where someone seeks to avoid some governmental imposition on the basis of religion?
And again, Althouse confuses religion with faith. Faith is a daily struggle for even the most dedicated believer. Religion can be practiced by any indifferent and cynical poser.
What Luke Blanshard said still applies after your edit, Professor. Don't go all Dawkins on us. That way lies madness.
There's this basic problem between people who are basically atheistic (as I suspect the Professor is) and those who have faith (which I have not). The former hate the concepts of the latter. It's a problem.
The Constitution suggests that we should get over it.
Isn't that what faith is all about and isn't faith the basis of most religions? Certainly of Christianity.
We try to put our faith in Christ but sometimes it is not easy. I know the feeling all too well. I really try but sometimes I fail.
I suspect that most believing Christians would tell you something similar.
Might that be what he means?
John Henry
It would be more accurate to say "...practice the religion..." or even "...have the religion..." than "people don't really believe the religion they profess to believe."
First of all, you can't logically "believe a religion." Secondly, religion, by etymology and modern reality, has much more to do with practice than belief.
Things like circumcision, marriage, church attendance, public prayer, flag-waving, pledges of allegiance, oaths, moments of silence and all the nonsense surrounding funerals and cemeteries have more to do with practice than belief.
For this reason, it is nonsense to talk about "sincerity" when evaluating a person's religion.
He loves you best bewildered.
X claims that the law requiring insurance that covers all FDA-approved birth control substantially burdens his exercise of religion. Does it matter that X is:
1. A religious person who sincerely believes God demands that he not facilitate abortion and the coverage will facilitate abortion.
2. A person who is trying to believe in a religion that includes the idea that God demands that he not facilitate abortion and the coverage will facilitate abortion. (And within this option does it matter that he's trying specifically to believe this one tenet of the religion he wants to believe in?)
3. A person with a family tradition of the above-state tradition who makes some outward professions of belief or attends services but doesn't try to believe, just goes along.
4. A person who is completely lying about religious beliefs because he dislikes Obamacare and is trying to avoid its requirements.
As for the judge, I think it is like being black. A person is, legally, what they say they are.
John Henry
Ann Althouse said...
"Who are you or I to question their sincerity?"
What if you are a judge dealing with a lawsuit where someone seeks to avoid some governmental imposition on the basis of religion?
8/7/14, 7:57 PM
What if a judge didn't start with the position that government imposition is justified unless ruled otherwise?
If we must have a Leviathan State we must necessarily get all up in each others' heads like this. Welcome to the rest of human history.
Congress shall pass no law...
and nothing is said about scales to weigh "burdens" on.
"4. A person who is completely lying about religious beliefs because he dislikes Obamacare and is trying to avoid its requirements. "
For crying out loud, that's always a possibility when a law is being challenged. That's like saying, challenges to Voter ID are bogus because the plaintiffs just want to commit voter fraud.
The concept of "striving to believe" is an interesting one, along the lines of "I actually don't think X is true, but I'm trying to think X is true". Why?
Does one ever speak of striving to disbelieve something? As in "I'd really like not to think that when I die that will be the end of my existence"?
One commenter speaks in terms of having faith in Christ, but that person seems to me to already believe in Christ and in the divinity of Christ. The faith issue adds and mixes aspects of trust with those of belief, doesn't it?
And maybe Ann's multiple choice question could add a person who claims to adhere to a religion the doctrine of which approves all types of contraception, but yet also claims that his personal religious believes are otherwise. The belief may be sincere even when the stated adherence to the doctrine of a particular religion (or sect) is not.
Could X's beliefs not be the government's concern?
Don't try to get inside X's head. Deal with his or her actions.
This basic idea seems to be hard for lawyers, law professors, and politicians to understand.
@broomhandle
"Religion" is the word in the Constitution and in the Religious Freedom Restoration Act and in the American case law. I don't see where you think you can go with the word "faith" as an alternative.
Does it matter that X is:
That depends on how seriously you take your parallel with Casey, which pretty much enshrines "take their word for it, and never mind any self-interested bias they may have" as the governing principle.
It is the duty of everybody -- religious or not -- to resist tyranny. Many people will forsake that duty for perceived short-term gains.
As mesquito says "Welcome to the rest of human history" in the Leviathan State.
I answer, we should resist with every weapon to hand. Lawfare is the best method, including forcing our would-be rulers to defend themselves and waste resources debating how many angels dance on the head of the pin, or whether one is "religious enough" to satisfy some Althousian test.
What mesquito said. The problem is that we have a government imposing requirements on people that it has no legitimate business imposing.
You can't seriously believe that the men who wrote our Constitution and their contemporaries who approved it would sit still for the huge expansion of government (and consequent shrinkage of liberty) that has occurred over the past hundred years.
Obamacare would have been clearly unconstitutional a hundred years ago, and there haven't been any amendments passed since then that would change that, so how can it be constitutional today? Only by lying. That's largely what liberal constitutional jurisprudence has been about. Twist the words of a pretty clear document to mean whatever you want them to mean, rather than the public meaning they had back when it was actually voted on.
Is it any wonder that the legal profession is held in such contempt by most people? They don't know quite what's happened to their country, but they can sense that the judiciary doesn't have their back when it comes to protecting them from unscrupulous politicians. The judges and the politicians are all lawyers, and they protect their own.
Justice Kennedy is quite correct. "Belief" is often a devout desire to believe. He may have had Mark 9:24 in mind:
"And straightway the father of the child cried out, and said with tears, Lord, I believe; help thou mine unbelief."
You don't need a religion. 52% of the American voters have given unto you a God-King, complete with High Priest in the Senate and Mad Prophetess in the House.
Of all of your posts, Althouse, I like the ones where you fully don the lawprof robes most obviously the most.
Religion" is the word in the Constitution and in the Religious Freedom Restoration Act and in the American case law. I don't see where you think you can go with the word "faith" as an alternative.
'Snark on'
do you mean like judges finding words in emanations and penumbra?
Kelo decision? That changed takings of private property for 'public use' to 'public good'?
'Snark off'
But mesquito nails it. In Hobby Lobby, the federal govt has no constitutional power to demand people (or corporations) provide insurance that includes abortifactants. If the State wanted to, fine and states can in fact force the religion issue, because the 1st amendment states clearly the 'congress shall make no law'
Almost all of the devisive issues would be in the hands of the state,closer to the people, and like Colorado and Washingtion, if you dont like the legislation, cant change it, move to a state that better suits your ideology.
The colonies worked just fine that way for more than a century.
I can only talk about my own religion, Christianity, because I don't know enough about any other religion to discuss this issue intelligently.
Althouse says "many people don't really believe the religion they profess to believe", but unless I've missed it, she's never really explained what she means by this. If she means that I, who profess to be a Christian, don't "believe" Christianity, she would be accusing me of being a phony and a hypocrite. But I don’t think that’s what she means. My guess is she means one or both of two things: (1) that there are aspects of orthodox Christian belief (or that she thinks are aspects of orthodox Christian belief) that I don't believe in, and/or (2) that I don't in my day-to-day life live up to the standards that Christianity sets for its adherents. If so, I plead guilty to both failings. Most Christians that I know would also do so. So what?
Religion is VERY difficult to understand, because it deals with such profound things. If you could figure out, without any doubt or uncertainty, the nature of God and the relationship of humans beings to the Divine and to each other, you would either be the wisest person ever to have lived, or a fool. Also, religion, at least the Christian religion, is very difficult to practice perfectly, because it sets standards of behavior that are meant for the Kingdom of God, but are to be followed here on Earth.
So when Justice Kennedy, who I understand is a Christian, talks about “striving” to believe, he is very much in line with intelligent thinking about religion from a Christian perspective. Perhaps a Muslim (or some Muslims) would disagree and say that striving is not enough: You have to believe everything and do everything that you’re told. But the Kennedy view is consistent with our Constitutional tradition of freedom of religion, a notion that apparently doesn’t appeal to some mullahs.
So taking the 4 hypotheticals @Althouse, 8:03 pm: Consistent with our traditions, the first 2 examples ought to be qualified for relief from the government imposition, and the 4th one should not (lack of sincerity). The 3d one likely wouldn’t go to the trouble of asserting a RFRA claim, but if she did, the presumption should weigh in her favor. As we all know, however, that’s only the beginning of the RFRA analysis.
Ann, we are all sinners and many who believe fall off the wagon so to speak, by their weaknesses.
That does not mean they don't believe, it just means they are human and have weaknesses.
In this telling, Kennedy turns into Nietzsche. It is all about the will to believe, and in the process the need to create life's meaning for oneself. Authenticity rather than sincerity was the watchword in his day.
He's right about one thing, religion is first and foremost a moral philosophy (i.e. structured doctrines describing acceptable behaviors). The faith aspect of religion relates to trust, whether it is in a divine philosopher's will or a mortal human's sincerity.
He's wrong about procreation and personhood. There is no mystery or uncertainty about human life, other than the chaotic process which defines its development. Human life evolves from conception to death. It is not a product of spontaneous conception. In a civilized society, an individual's rights end where another human life's begin. Elective abortion is premeditated murder of another human life for trivial causes. Our degenerate secular religion has voted to grant women an exclusive, extra-legal, and extra-moral right to terminate a human life at will.
As for contraception, the principles of evolution are not negotiable. Men and women who either terminate or prevent conception of their offspring are unfit. A society which normalizes these behaviors is unfit. Just as equally unfit as individuals and society which is amoral (e.g. libertine) and inevitably -- and necessarily -- loses its liberty to a totalitarian regime.
That said, dissociation of risk is the opiate of the masses, which assures a dearth of moral reform in a highly "civilized" society.
I'm no theologian, but I seem to recall that many great religious figures had moments in their lives when they admit they had lost faith and struggled to regain it. I don't think religious belief is a steady state sort of thing.
Only the dullest and shallowest of religious systems ignore the concept of the "spark of faith."
Tending that spark is what most of my religious life entails.
Reading the comments rather then the original post made me think of several conscientious objector decisions I was personally aware of during my time in the Navy.
Including the one sailor who decried using any form of violence on another human. Who was rather bruised for his scheduled board hearing due to the bar fight he was in the previous evening... His CO status was denied.
It is impossible to ascertain whether or not someone truly holds a belief or is faking it with appropriate behaviors. But my diebelief meter goes up with sudden pacifism conversion of someone about to go on deployment.
But here is Justice Kennedy lumping striving to believe in with actual belief.
That fits right in with lefties striving to believe in Communism - which is a religion - despite its track record of ruined economies and dead bodies.
Moral philosophy to describe a common standard of mutually reconcilable behaviors. Natural philosophy to ascertain a common standard of mutually reconcilable perceptions. Legal philosophy to describe a common standard of enforceable moral and natural principles.
Professor, you're coming at this ass backwards:
"X claims that the law requiring insurance that covers all FDA-approved birth control substantially burdens his exercise of religion. Does it matter that X is:"
The problem isn't "his exercise of religion" the problem is "the law requiring insurance"
"@broomhandle
"Religion" is the word in the Constitution and in the Religious Freedom Restoration Act and in the American case law. I don't see where you think you can go with the word "faith" as an alternative."
Faith animates the sincere practice of any religion. If you're saying they don't really believe what they say they believe then you're questioning their faith. Not really something the law is in a position to judge. Certainly the insincere can game the vagaries of the Constitution to their own advantage, but that doesn't give government leave to violate the sincere. Not that government gives a shit.
On faith, religion, belief and the desire to believe:
I've had the desire to believe for a long time. Sometimes it's strong and powerful. Others it's weak and almost perfunctory. But I've never been able to actually believe in a God whose function includes giving me any notice. Where does that leave me? In Hell, according to some sources, but lacking faith it also keeps me out of religion.
"Faith is a daily struggle"--yes, of course it is.
From that follows many things, and not all and everyone will agree exactly, precisely, specifically on what those things are, which by my lights is all the more reason *not* to put faith in a box and define it as one's own, no brooking of that box by others' definitions allowed. Yet, people do exactly that, and always they have. This is part of the nature of humans, is it not, or is it not?
All the more reason to protect the notion of freedom of religion not just because of but also despite its complexities. Both.
Althouse: "X claims that the law requiring insurance that covers all FDA-approved birth control substantially burdens his exercise of religion. Does it matter that X is:"
Professor, I am afraid the goose is loose - the wild goose, that is. It seems to me that the more fundamental question is whether this executive agency rule shouldn't be subject to strict scrutiny. Does the government have a compelling interest in controlling population growth and if so are there no other less burdensome remedies?
The distinction is important because "sincerity" is a much lower bar than "real belief" and a much easier thing for a judge to test. (Though seeing our court system conducting tests of faith would have a lot of humor value.) The distinction could well have been passed over in this case since all but the looney "War on Women" fringe acknowledge the real belief of Hobby Lobby ownership in the sanctity of human life from the point of conception.
Parallel to what Jeff said, my wife is a lifelong, practicing Catholic. She remains Catholic, and probably always will remain Catholic, though in talking to her, she has little or no agreement with Catholic dogma.
Most people just stick with the religion, or non-religion, they were raised in. It takes a fairly adventurous person to change something that fundamental in their deepest mindset.
How about thinking of things this way?
Setting up a country 1/2 century before Darwin, they did the best they could with what they thought they knew.
Preserving religious freedoms was important then, because religion represented Man's best attempt to make sense of his existence and nature.
We certainly know better now, or ought to.
Preserving religions freedoms these days, beyond the free speech aspect, should be about as important as would have been, in 1776, enshrining the medical practices of the day. 'Bleeding a fever', anyone? No? Didn't think so.
We've grown up.
As demonstrated in the comments, a large majority of sincere religious believers will find Kennedy's phrasing to be unremarkable. Faith waxes and wanes for the most of us.
I do agree that the phrasing enables the creation of an interesting legal hypothetical.
The sincerity of belief of any one individual or corporation is irrelevant.
If Congress passes a statute that goes against the stated creed of the Roman Catholic Church, the Southern Baptist Church, etc., it is attempting to restrict the "free exercise of religion" by legislation.
A question may arise as to the legitimacy of an organization claiming to be a religious institution, but is Congress ready to declare the Holy Roman Catholic Church illegitimate?
"For crying out loud, that's always a possibility when a law is being challenged. That's like saying, challenges to Voter ID are bogus because the plaintiffs just want to commit voter fraud."
No. There's a big difference. The person challenging Voter ID is claiming it violates equal protection and needs to be stricken down because it doesn't treat all of us equally, not claiming any individual entitlement to special treatment. Quite the opposite.
The person asserting a need for a religious exemption is demanding special treatment for himself, not equal treatment. The opposite. His entitlement to that special treatment relates to the condition of the inside of his head. He has a motive to lie to get different, preferential treatment.
It makes a hell of a difference!
What about equal protection from the tyranny of the majority? The exemption isn't strictly due to the "condition inside his head", it also relates to the conditions being imposed externally by the government.
"Professor, I am afraid the goose is loose - the wild goose, that is. It seems to me that the more fundamental question is whether this executive agency rule shouldn't be subject to strict scrutiny. Does the government have a compelling interest in controlling population growth and if so are there no other less burdensome remedies?"
No. There is only strict scrutiny if there is a substantial burden on religion. You cannot skip that step. There must be religion there and it must be burdened. Substantially. Otherwise you can only argue that the law has no rational relationship to a legitimate government interest.
Also "controlling population growth" is not the interest that the government has been asserting. In Hobby Lobby, the govt interest that the Court assumed (without deciding) was compelling was "ensuring that all women have access to all FDA-approved contraceptives without cost sharing."
I doubt if the Court would, if it had to decide, actually find that compelling, but it's surely legitimate.
The dissenting Justices did find a compelling interest. They phrased it this way: "the mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children. The coverage helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening. And the mandate secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain."
Matthew 17: 19 Then came the disciples to Jesus apart, and said, Why could not we cast him out? 20 And Jesus said unto them, Because of your unbelief: for verily I say unto you, If ye have faith as a grain of mustard seed, ye shall say unto this mountain, Remove hence to yonder place; and it shall remove; and nothing shall be impossible unto you. 21 Howbeit this kind goeth not out but by prayer and fasting.
Sometimes commitment and action is required when faith is not sufficient.
Selecting when to go through a pregnancy is important to individual women, and we have a right to govern our own lives by controlling this choice. You might want to disaggregate that individual autonomy from the importance of getting health insurance to cover the expense with no additional co-pay, but that is what the government is ostensibly trying to do.
It might secretly be trying to control population, or, more specifically -- and compellingly -- trying to control the population of new citizens who arrive at a time not chosen by their parents.
There is only strict scrutiny if there is a substantial burden on religion.
I think you're correct in believing that many people don't always have complete conviction regarding the religions they practice.
But I don't think that it's a particularly novel insight. If the Constitution protects religion, then what it's protecting encompasses the occasional (or frequent, I suppose) inconsistencies of the religious. As you note - faith isn't protected, religion is.
Am I missing something?
"A hell of a difference" Althouse, 8:03 am. Yes, just as Justice Scalia said: The 1st Amendment Freedom of Religion doesn't give you a right to special treatment on account of your religious beliefs. But Congress (then controlled by Democrats) and the President (also a Democrat) believed that you should get special treatment under certain circumstances and so passed RFRA.
The original issue involved religious use of illegal drugs. You could say that the Democrats who pushed RFRA thought that the religion-based desire to use drugs was more important than the ban on the drugs. Now the issue involves requiring employers to include in their health insurance plans "free" provision of methods of birth control thought by some to cause abortions. And now many Democratic politicians and commentators think that providing free birth control is more important than religion-based objections to birth control or certain methods of birth control.
So to me, the really interesting issue is how and why birth control and abortion got raised so high on the American liberal pillar of values. We are no longer dealing with a question about what the Government ought to leave alone (intruding into the bedroom practices of married couples), but what the Government can force on us.
Neither the "Founders" in 1787 nor the proponents of the 14th Amendment in 1868 nor the Supreme Court prior to the 1920s ever thought the Federal Government had any business enacting this kind of law affecting the minutiae of daily life of individual U.S. citizens.
This is an invention that can be un-invented at any time.
"Atheism" is a religion which, like "Islam", attempts to exclude other religions from the public square and take over civil government to reach that goal.
The US Court of Appeals for our area has given an Atheist, in prison, the same "free exercise of religion" rights as other "believers".
The government can have no valid interest--"compelling" or otherwise--that justifies the infringement of inalienable rights.
Does the expression "compelling interest" appear anywhere in our Constitution?
Or is it merely a convenient invention by judges to enlarge their power and the power of the state over the citizens?
Althouse:
Why does your analysis start with the individual when it is the government that is constrained by the Bill of Rights? By starting that way you admit the sort of unanswerable questions contemplated in this thread, inviting governmental intrusion. Start from what the government may not do and see that there are fewer philosophical problems. Hello to the 10th Amendment.
Professor, your "rights" end where my chin begins.
As a parallel, how does the law judge the sincerity of people who assert a diffrent gender than that with which they were born?
Professor, your disbelief is so agonizingly Protestant it makes me laugh. Here's a laugh for you:
http://www.gocomics.com/peanuts/2011/10/28
That "right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life" corresponds to the right to "strive to believe in a divine creator and a divine law" and "striving for a self-definition shaped by their religious precepts." What matters is the search for meaning, and freedom doesn't begin only when you've found it, and it's at least as important when you haven't found it yet.
Jesus, are you channeling Yoko Ono now?
Covering the expense of contraception, not abortion, would be a fair basis for debate. A woman has the right to prevent conception, and a man has a right to prevent a "burden". Neither has a right to abort a human life, other than as an act of self-defense, nor do they have a right of deceiving their partner. Both should be voluntary participants in conceiving a human life.
I propose universal contraception coverage in exchange for rejection of elective abortion procedures. I would further propose a universal acknowledgment that human life evolves from conception to death, which will on a forward basis reform our public and private judgment. Basically, I call for a restoration of human rights and scientific integrity.
"Selecting when to go through a pregnancy is important to individual women, and we have a right to govern our own lives by controlling this choice."
I can't decide of this statement was bait or not. I'm going to assume that you are trying to make a legitimate point and also believe your sincerity on this issue.
Pregnancy is the result of some other (unspecified) activity; you have (and should have) the absolute right to decide to participate in this "other" activity if and when you want (assuming other involved parties agree), but there are sometimes consequences. If you decide after a child is born as a result of this activity that you don't want to be a parent right now....
If pregnancy is a disease, fine, you can kill the infection. If pregnancy is the generation of human life, you should not be allowed to abrogate the rights of that life based on your preference for delaying pregnancy. This is not a question of religion, just a basic respect for the fundamental rights of others.
A test of religosity is If a person may say that they sin against God; either of an act of commission or an omission of duty, they are religous. All other tests being a subset of the first.
From there the freedoms claimed in the First Amendment are to do or say all things necessary to mitigate the acts that define the test.
Anything to the contrary is lawyer talk.
If sincerity of belief in the plaintiff is a stumbling block, perhaps future cases can be brought as a class action of adherents to a religion. In that way, the judge can safely assume that at least one person of the class had his sincere beliefs violated by the law. If the religion is one that no one uses as a guide to life (Pastafarianism?) the court can also take notice of that fact. It would be the class of religious persons who would, at one time or another, be harmed by the law in question. Why ask one person whether he is so sincere that he would at all times have his exercise of religion harmed by the law? After all, laws are not properly drawn to address the acts of an individual, but to address the behavior of groups. The injury one must express to have standing, in challenging a law, need only be an example of how others would also be harmed by the law.
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