Religious freedom for all?

Feb 26, 2018 by

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Because of our odd religious beliefs — like the conviction that killing is wrong — religious freedom has always been important to Mennonites. Indeed, some believe that Mennonites played a key role in the development of the now commonly accepted principles that the state should not favor particular religions but should rather protect the religious freedom of all. These principles are enshrined in the First Amendment to the United States Constitution, which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Never before has the United States had an administration so ostensibly focused on the freedom of religion. In May of 2017, President Trump signed an executive order, “Promoting Freedom of Speech and Religious Liberty,” which broadly commits the government to protecting religious beliefs. In October the administration issued rules creating broad religious and conscience exceptions to the legal requirement that employers and insurers provide contraceptive coverage for women employees. Also in October, Attorney General Jeff Sessions issued a broad guidance on enforcement of federal law protections of religious liberty. Then in January of 2018, the administration proposed a rule to protect rights of conscience in the provision of health care and created a special civil rights enforcement division to protect the rights of individuals and institutions that refuse to provide certain health care services for religious reasons. The administration has also been rapidly appointing federal judges seemingly on the basis of their commitment to certain political principles and religious beliefs.

And yet, for all the concern the administration has expressed for religious liberty, the scope of its religious principles is disturbingly narrow. Most of the administrations proposed rules and pronouncements seem focused on religious opposition to three things — abortion, contraception and non-traditional sexual identity or practices.

The administration claims to be pro-life, but its concern for life seems to end at birth. There is little apparent concern for the flourishing of life beyond birth and none about state-sponsored killings, and the president seems quite willing to contemplate the prospect of a nuclear war that could end millions of lives within minutes.

How many passages in our Bible call for compassionate treatment of aliens or of the poor? How many condemn contraception? Count them. Yet despite the historic involvement of many Christians for providing sanctuary for undocumented aliens, to use one example, protection of the exercise of this religious belief has received no support.

This should be a moment of both opportunity and concern for Mennonites. First, we need to seize this moment to demand protection for our own religious beliefs. Many Mennonites believe that payment of taxes to support war is sinful. We should demand that the administration protect our religious beliefs and create a peace tax fund. Tax resisters should challenge IRS collections in court, and call upon Sessions to come to their aid. Mennonites who are involved in the sanctuary movement need to call on Sessions to protect them as they act on their religious beliefs. If Christian organizations that oppose contraception are granted an exception from the law requiring contraceptive coverage, why should Christians who welcome immigrants not also be excused from compliance with laws against harboring aliens? And Christians who believe that the government should not kill should not be jailed for refusing to participate in death penalty proceedings.

Second, we need to start seriously considering the potential threat that this administration’s actions pose to separation of church and state. Minority religious groups like ourselves must always worry, not just when the government threatens religious liberty, but also when it threatens to endorse particular religious beliefs.

Recent regulatory issuances, for example, would elevate the religious beliefs of particular health care providers above the medical needs or civil rights of their patients. They seem to ignore the religious or moral convictions of health care providers who do not hold to the beliefs favored by the administration. The government seems to endorse some religious beliefs, but not others.

Our Constitution is based on a careful balance: protecting the religious beliefs of all and not endorsing the religious beliefs of any. We as Mennonites have a long history of fleeing countries that persecuted us for our beliefs — or for our refusing their state-sponsored beliefs. We have been able to thrive in the United States because it has generally done neither. I believe that we face a particularly troubling time in the United States with a government that does not seem to respect that traditional balance. We must be vigilant.

Timothy Stoltzfus Jost is professor emeritus at Washington and Lee University School of Law in Lexington, Va. He is a member of Community Mennonite Church in Harrisonburg, Va.

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