"With Great Delicacy & Tenderness"
Improving on the Constitution's protection of religious freedom.
This month, some of Slate’s legal eagles are proposing their favorite constitutional amendments, in the service of our effort, with Me the People author Kevin Bleyer, to rewrite the founding document. Here are proposals about the right to trial by jury, protecting informational privacy, amending the Constitution by national referendum, electing the attorney general, moving up the date of the presidential inauguration, restoring the balance of war powers, Supreme Court term limits, forcing Congress to fix the rules of congressional procedure, a right to health care, a right to vote, victims’ rights, campaign finance, elections, and the death penalty and solitary confinement.
Freedom of Religion (First Amendment)
In the beginning, American colonies banished Catholics, disenfranchised Jews, and jailed Baptists. By the end of the Revolution, the new nation generally ceased the religious-minority bashing. But minority religions can still be harmed, albeit unintentionally, when the majority passes laws that disregard their individual practices.
For example, in passing comprehensive drug laws, Oregon prohibited all use of peyote. Members of the Native American Church, a religion that began in the 1870s among Southwestern tribes, use small amounts of the hallucinogen in their sacred rituals. The church argued that Oregon should make an exception, just as Congress had made exceptions during Prohibition so that the Catholic Church could continue to provide sacramental wine. Oregon rejected the Native American Church’s request, and in 1990, the Supreme Court ruled in Oregon’s favor. The court said that the Free Exercise Clause of the Constitution permitted the government to refuse to make religious exceptions from its general rules, even if the exemptions would cause no harm to society in general.
The result is that the government can blithely ignore the myriad ways adherents of minority religions practice their faith. Thus, the army court-martialed a Jewish military officer for wearing a yarmulke, and the sheriff’s department in Lee County, Miss., which had ordered employees to wear pants, fired a Pentecostal Christian woman whose faith required her to wear a skirt.
Congress created a new set of problems when it overreacted to the Supreme Court’s lopsided rulings by passing the Religious Freedom Restoration Act and a companion statute. These laws essentially allow religious organizations to disregard a lot of laws that apply to everyone else. For example, they permitted a church in Lenox, Mass., to ignore local zoning ordinances to build a huge parking lot, despite the increased traffic and congestion for the city.
We need to find a sensible middle ground between the court’s disregard for religious sensibilities and Congress’ overprotection. For guidance, we can turn to our first president, George Washington. In a letter to the Society of Quakers in October 1789, Washington acknowledged the difficulty they faced when their faith prohibited them from obeying the mandate to serve in a militia. “I assure you very explicitly,” he wrote, “that in my opinion the Conscientious scruples of all men should be treated with great delicacy & tenderness.” At the same time, Washington did not say that the needs of religious organizations must always trump those of everyone else. Instead, he expressed his “wish and desire that the Laws may always be as extensively accommodated to them as a due regard to the Protection and essential Interests of the Nation may Justify, and permit.”
Washington’s respectful balance would help resolve many of the controversies regarding government regulation and religion. He would not likely have approved of the Obama administration’s initial problematic proposal to require Catholic schools and hospitals to include contraception in health coverage for their employees. But our first president could have supported the modification announced by President Obama in February, which preserved employee access to contraception, but shifted the burden of providing the coverage away from religious organizations and onto private insurance companies.
My proposal would follow Washington’s reasonable approach to amend the First Amendment:
The government may not burden a person’s exercise of religion unless it can prove that relieving the burden would seriously impair an important governmental interest. Any law targeting a particular religion is per se unconstitutional.
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