Rick Santorum made separation of church and state an issue in his campaign for the presidency, denouncing John F. Kennedy’s commitment to that principle and using freedom of religion as a rallying cry. The uproar regarding coverage for contraception further highlighted the continuing schism in America over those wanting absolute freedom to follow their religious beliefs and those accepting that when a conflict exists, civil law must override religious precepts.
Previous court battles have affirmed that freedom of religion in America is not an absolute right. Though the First Amendment to the Constitution prohibits Congress from any actions favoring the establishment of a religion or “prohibiting the free exercise thereof,” there have been a number of instances where the general welfare has taken precedence over religious practices, forcing a religion to change its edicts. Since the state is responsible for regulating harmful conduct, if there is disagreement between a religion and the state over some element of religious practices, civil law must be observed. Of course, the difficulty arises in determining which religious practices may be detrimental to society.
One prominent example of a conflict between church and state, where the Supreme Court ruled that civil law must be followed, involved the Mormon practice of polygamy. In 1862, the Morrill Act was passed by Congress prohibiting plural marriages. The Court upheld the conviction of a Mormon in 1878 for violating the law which he said had interfered with his religious duty. However, polygamy continued to be openly practiced by Mormons with the argument that it was protected by the First Amendment. Finally, in 1890, the president of the Mormon Church acknowledged that civil law had primacy over church law and the practice of polygamy was ended by the church, aside from some fundamentalist splinter groups. Similarly, the Muslim practice of allowing up to four wives under Islamic law is illegal in the U.S.
Another area where civil law was in dispute with religious officials was over the handling of pedophilia by the Catholic Church. For most of the 20th century (and past centuries) the church dealt with child molestation by priests as a sin, rather than as a criminal offense. When a case of pedophilia was discovered, the name of the perpetrator was generally not reported to the civil authorities, with disciplinary measures meted out by the church. Often, this consisted of transfer to another position where the perpetrator might still have contact with children. Or a life of prayer and penance might be ordered. It was only after a series of scandals, numerous suits and some criminal trials in recent decades that the church agreed to treat pedophilia as a criminal offense, allowing an arm of the state to decide on punishment.
It is clear that religious freedom is not absolute in America. However, two questions must be answered by the courts in dealing with conflicts between church and state. One is how egregious the issue in contention is to the beliefs of a particular religion and the second is whether favoring the religion would contravene the general good to a sufficient degree to harm society. On the issue of contraception, it is clear that women’s health will be impacted if coverage is not available for low-income recipients. It also seems that when the Obama administration allowed church-affiliated organizations to opt out if they so desired and have the insurance companies pay for contraception, the church’s objections had been met.
We live in a pluralistic society where conflicts between what are considered civil rights or social needs and religious beliefs are constantly playing out. Finding a middle ground when dealing with galvanizing issues, such as abortion or same-sex marriage appears to be nearly impossible. On the other hand, the availability of contraception for all women seemed to have been settled decades ago and yet has come back to haunt us again. It is unfortunate that when the nation faces so many serious economic problems, the two political parties must devote so much time and energy to an issue like contraception coverage which should have been a minor administrative decision.
To truly insure freedom of religion for everyone, the wall separating church and state must remain in place as a bedrock principle of American democracy.
em>A VietNam vet and a Columbia history major who became a medical doctor, Bob Levine has watched the evolution of American politics over the past 40 years with increasing alarm. He knows he’s not alone. Partisan grid-lock, massive cash contributions and even more massive expenditures on lobbyists have undermined real democracy, and there is more than just a whiff of corruption emanating from Washington. If the nation is to overcome lockstep partisanship, restore growth to the economy and bring its debt under control, Levine argues that it will require a strong centrist third party to bring about the necessary reforms. Levine’s previous book, Shock Therapy For the American Health Care System took a realist approach to health care from a physician’s informed point of view; Resurrecting Democracy takes a similar pragmatic approach, putting aside ideology and taking a hard look at facts on the ground. In his latest book, Levine shines a light that cuts through the miasma of party propaganda and reactionary thinking, and reveals a new path for American politics. This post is cross posted from his blog.
Political junkie, Vietnam vet, neurologist- three books on aging and dementia. Book on health care reform in 2009- Shock Therapy for the American Health Care System. Book on the need for a centrist third party- Resurrecting Democracy- A Citizen’s Call for a Centrist Third Party published in 2011. Aging Wisely, published in August 2014 by Rowman and Littlefield. Latest book- The Uninformed Voter published May 2020