♦ Special rights for religion?

The National Statement on Religious Diversity can be interpreted as providing special rights for the religious, over and above those of the non-religious. This is in fact implied in rights to safety (clause 3), recognition and accommodation of practices in work and education (clause 5), teaching of religion (clause 6) and relationship with government (clause 8). It is natural for the non-religious to have concerns about how this influences their own position.

US Humanists have similar concerns about legislation introduced in New York promoting accommodation of religious practices. The article by Matt Cherry, the executive director of the Institute for Humanist Studies, quoted below discusses these concerns and is relevant to the New Zealand situation.

“N.Y. Gov. Wants Special Rights for Religion

New York State Governor Eliot Spitzer announced on Monday that he will introduce a Religious Freedom Restoration Act (RFRA) for the state.

Matt Cherry, IHS Executive DirectorThe text of the act is not yet public, but Gov. Spitzer’s office says it will mirror the federal Religious Freedom Restoration Act of 1993.

If this is so, the Institute for Humanist Studies (IHS) will strongly oppose the act as harmful on at least three different grounds: it gives special privileges to religions that are not allowed to any other groups, it potentially gives religions the right to violate the rights of others, and it would create an unfair burden on employers and other secular entities.

Rather disingenuously, Gov. Spitzer’s press release cites the federal RFRA as a model without mentioning that it was overturned by the Supreme Court in 1997 (Boerne v. Flores). In fact, not a single member of the Supreme Court defended the RFRA in the majority, the concurrences, or the dissents! Justice John Paul Stevens opined that RFRA violated the establishment clause of the First Amendment, and provided churches, mosques, temples or other religious groups with a legal instrument “which no atheist or agnostic” could obtain.

The IHS fears that in giving special rights for religions, RFRA will create a two-tier standard of laws: one standard for religious groups and activities and a lower standard for everyone else.

The IHS also questions the extent of existing problems that that could only be remedied by an RFRA. Back when he was attorney general, Spitzer filed numerous suits defending workers whose religious customs had put them at odds with their employers — a Jewish repairman required to work on his Sabbath, a deliveryman ordered to cut the dreadlocks customary to his religion, a female medical student required to wear clothing considered immodest in her religion — and he won every single case!

In each of these cases, the courts ruled that the worker’s religious observances should be accommodated by the employer. Given that freedom of religious expression and conduct has been consistently upheld in New York State on a case-by-case basis, further legislation seems unnecessary.

Why, when there are already such effective rights for freedom of religion, is there a demand for more? It seems to me that there is a growing sense of entitlement among religions that makes some people think that they should be exempt from any law if they claim they object to it on religious grounds.

But this sense of entitlement goes against the separation of church and state in the U.S. constitution. As Supreme Court Justice Antonin Scalia noted when writing for the majority in Employment Div v. Smith in 1990, the religious freedom guaranteed by the First Amendment has never been interpreted to mean “that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”

Unfortunately, creating new rights for religions will also place an undue burden on employers and government; never mind the added burden on New York State taxpayers forced to pay litigation costs created by these new rights, especially if the legislation includes a provision covering the cost of plaintiff attorney’s fees (the ultimate invitation to sue.)

The biggest danger with the RFRA is that people will start using religion as an excuse for illegal conduct, violating laws that were made not to suppress religion but to protect society. When the state of Maryland considered passing a state RFRA, the constitutional scholar Professor Marci Hamilton gave the following warning about its potential consequences:

“Providing extremely demanding scrutiny of every generally applicable, neutral law that burdens religious conduct can and will prompt challenges to the following laws and undermine such laws: abortion regulations; physician assisted suicide regulation; child neglect, abuse and support laws; statutory rape and minimum age marriage laws; laws against domestic violence; zoning and building codes, including height, lot-size, and building size restrictions, on and off-street parking, non-commercial status; antidiscrimination laws that forbid discrimination on the basis of race, gender, disability and sexual orientation; fair housing laws; prison regulations; school weapons bans; midwifery licensing regulations; endangered species protection laws; historical and cultural preservation laws; open space laws; Medicare/Medicaid regulations; literature distribution in the public schools; human reproduction classes in the public schools; prayers in public schools; compulsory education laws; and compulsory vaccination laws.”

“This is the just the tip of the iceberg, of course,” added Hamilton.

Matt Cherry is the executive director of the Institute for Humanist Studies. He is the author of Introduction to Humanism at the Continuum of Humanist Education, the online school of the Institute for Humanist Studies.”

The article is from the Humanist Network News e-zine of the Institute for Humanist Studies.

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