A comment on CAP's "Religious Liberty for Some or Religious Liberty of All"

Joshua Dorner recently published an issue brief titled Religious Liberty for Some or Religious Liberty for All. Dorner is the Communications Director at Center for American Progress.

The following is an edited critique of Religious Liberty that I sent to Dorner today:

I read your Religious Liberty issue brief this morning. While I am generally supportive of the end result, your rationale is one sided -- it ignores the free exercise rights of those who, in practicing sincerely held religious beliefs, would discriminate against someone. For them, what you call balanced is NOT balanced at all.

Contrary to your statement that "The truth is that religious liberty is not in conflict with marriage equality or with women's reproductive rights ...", the real truth is that for many Americans there is an enormous conflict. You simply ignore the conflict by failing to give ANY weight to the free exercise of religion side of the equation.

For example, if it is permissible under our laws for clergy to be exempt from performing a same-sex wedding, why can’t a baker legally refuse to bake a cake for that wedding or a photographer refuse to take photographs of the wedding -- as long as their refusals are based on sincerely held religious belief that gay marriage is immoral?

I have been struggling with issue of discrimination in the name of religion for a number of years and do not have an honest answer, nor have I heard a persuasive answer from my liberal colleagues.

The best justification that I am aware of is that people who serve the general public should serve the public without discrimination. Perhaps clergy argue that they serve private congregations, not general public.

Or what about a person who starts a small business (and I have started and owned two businesses) and wants to run it consistent with his or her religious beliefs? Does he or she have freedom if government dictates how the business must be run? It's a good question. The truth, pretty or ugly, is that our freedoms are not unlimited. Some restrictions are necessary to prevent chaos.

The bottom line for me is that the Supreme Courtis decision in Employment Division v. Smith (1990) – holding that a law does not violate the Free Exercise Clause if it is neutral and general applicability – is the best balancing test we have where free exercise rights conflict with government promoting the general welfare (e.g., nondiscrimination). This being said, I am honest enough to admit that some people will be denied free exercise of religion. No right is absolute, even religious freedom.

Judge orders Mt. Soledad cross removed; Stays decision pending appeal

Pursuant to a remand from the 9th Circuit, U.S. District Court Judge Larry Burns issued a permanent injunction enjoining the display of a 43-foot Latin cross atop Mt. Soledad in California. Judge Burns stayed his decision pending appeal. The decision/order in Trunk v. City of San Diego (S.D. Cal. December 12, 2013) is here and the ACLU's announcement here.

This case has been going on forever. Almost. Philip K. Paulson a filed a law suit in 1989. Paulson, who died in 2006, has was succeeded by Steve Trunk as the lead plaintiff. Also in 2006, Jewish War Veterans and others filed a separate law suit. The two cases have been consolidated. 

The problem with a religious symbol as the predominant part of the memorial is quite simple.  The giant Christian cross is inappropriate because it does not represent the faiths or nonbelief of many veterans who have honorably served our nation.

I vividly recall Peter Eliasberg's response to Justice Scalia's statement during oral arguments in Salazar v. Buono that the Mojave Desert Christian cross was "erected in honor of all of the war dead." Eliasberg responded: "The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew. [Laughter.] So it is the most common symbol to honor Christians." (Salazar v. Buono, No. 08-472 (October 7, 2009), transcript, at pp. 37-38.) Justice Scalia's face turned bright red in embarrassment.

Echoing Justice Scalia's insult, a plaque near the cross states: "Dedicated in 1954, as a tribute to all branches of the armed forces of U.S.A. servicemen and women." (Emphasis added.)

While the facts of Trunk (this case) differ from (1) Buono, 559 U.S. 700 (2010), (2) American Atheists v. Duncan, 616 F.3d 1145 (10th Cir., 2010) and (3) American Atheists v. City of Starke, 509 F.Supp.2d 1221 (MD FL 2007), in all four case courts found that the government's display of a Christian cross -- the preeminent symbol of the majority religion -- constituted a governmental endorsement of Christianity in violation of the First Amendment. (Note: In Buono, the 9th Circuit found the display to be an endorsement of Christianity. The issue before the Supreme Court was what affect was to be given to a land transfer to a private party.)

The bottom line is that the display of a religious symbol unique to one religion -- such as the Christian cross atop Mount Soledad -- has the purpose and effect of advancing one religion over others, and religion generally over nonbelief in violation of freedom from government sponsored religion guaranteed by the U.S. Constitution. The Constitution, which established a national government of limited powers, gave Congress and the President no powers in matters of religion.

Importantly, the removal of a cross from government property would not be an act of hostility towards religion but rather an act resulting in neutrality towards religion and nonbelief.