Freedom of Religion

The leader of the Fundamentalist Church of Jesus Christ of Latter Day Saints, Warren Jeffs, was arrested in August 2006 on felony charges for accomplice of rape for allegedly arranging the marriage of a 16-year-old girl to a married man. This raises interesting questions about religious freedom. Can you do whatever you want in the name of religious belief with impunity? The answer, gratefully, is no.

In a very well thought-out and well-written blog post (subscription required), Stanley Fish explains the position the courts have taken on these types of issues.

In that case [Reynolds v. The United States (1878)], the Supreme Court finessed the free exercise question by privatizing the right. The core issue, then as now, was plural marriage. George Reynolds, like Warren Jeffs, argued that as a Mormon he believed that “it was the duty of male members” of the church “to practise polygamy,” and that the penalty for refusing what he took to be a command “of divine origin” would be “damnation in the life to come.” The court accepted the sincerity of Mr. Reynolds’s religious convictions and assumed the authority of the free exercise clause, but asked, what exactly “is the religious freedom which has been guaranteed?”

The answer it gave (with help from James Madison and Thomas Jefferson) was that the freedom being guaranteed was the freedom to believe or think something, not the freedom to do something: “Laws are made for the government of actions, and while they cannot interfere with mere religious belief, they may with practices.” You can believe or say anything you like – including that God wants you to have plural wives – but you can’t act on it. That is to say, free exercise stops at the brain and the mouth.

The benefits of this interpretation should be obvious. If people were allowed to do whatever they desired with impunity by invoking First Amendment protections our government would be little more than a straw man.

The laws of the government should always protect its citizens from persons who would infringe their basic rights. No religious exceptions should be granted to generally applicable laws. I am refreshed to learn there are ample precedents limiting the actions of the religious in the name of their religion.

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