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Does Religion Need Special Protection in the US?
The idea of special protections in this country has always been objectionable to me; it requires another reason for government intrusion into our lives. We take pride in extending the Bill of Rights to everyone, and equal opportunity transcends special classes.
Enforcement has previously fallen under the jurisdiction of the Justice Department, but now the new Assistant Secretary of Education for Civil Rights, Ken Marcus, has decided to add a new protected group: religion. In particular, he is concerned about anti-Semitism.
Mr. Marcus is motivated by a childhood incident that took place in the predominantly Jewish Sharon, Mass, where a group of children saw him:
‘They started throwing rocks and yelled for me to go back to my ‘Jew town,’ he recalled in an interview this week.’ The episode, Mr. Marcus said, shaped his view on the need for greater civil-rights protections—and particularly for a more vigorous battle against anti-Semitism in the U.S.
He went on to found the Louis D. Brandeis Center for Human Rights Under Law, which fights discrimination against Jews, especially on college campuses.
If you need a reminder of the current protected classes, they are age, pregnancy, national origin, race, ethnic background, religious beliefs and sexual orientation. Since the Department of Justice already has laws to protect religion, Mr. Marcus would need to have new laws drawn up to protect religions through the Department of Education.
Mr. Marcus drew up related guidelines in the same department under George W. Bush. Republicans believed this was inappropriately extending the enforcement power of the department. The Liberals had their own issues with his guidelines:
Liberals and free-speech advocates, meanwhile, have sometimes viewed the guidelines as an attempt to conflate anti-Semitism with the BDS movement, which promotes boycotts, divestment and sanctions against Israel for its policy toward the Palestinians. Doing so, they say, risks targeting students for their political viewpoint.
It’s also been reported that the LGBT+ movement is concerned that anti-Semitism cases will take priority over their own concerns.
To cover this new agenda, Mr. Marcus plans to hire 65 civil rights staffers, about the number who were released since the beginning of the Trump administration. And then there are the conflicts created about whether religion, included in the First Amendment, needs to be a specially protected class.
As E. Jeffrey Ludwig wrote in American Thinker:
Thus we see that a highly populated and time honored class of protected actions/persons, namely worshippers of God, has been downgraded by the application of law to ‘protect’ a recently created and ill-defined class of persons. Standards of what may or may not be considered burdensome to protected religious persons and to those who supposedly need to be protected from those religious persons have become confused and distorted. Moral legitimacy of protected Constitutional freedom has been replaced in law by an alternate moral reality than that used when this country was founded.
I’ve been on the receiving end of anti-Semitism. I know that Christians suffer abuse by the secular population. I think there is also evidence that anti-Semitism may be on the rise in this country. I can certainly empathize with Ken Marcus’ traumatic childhood experience.
The larger issue, though, is whether the protected classes’ list should be expanded to include religion when religion is already protected under the First Amendment. In fact, I wonder about the relevance of special protection classes in this country and at this time in our history. The more specific question is whether the government should be actively pursuing discrimination cases related to religion. Isn’t the First Amendment sufficient to protect religious freedom?
Published in Religion & Philosophy
I think we’ve lost sight of what rights are, and against whom we need protection. The Bill of Rights exists to protect us from having our rights infringed by the government (and originally, just the federal government).
I have deep misgivings about the notion of “protected classes,” especially when the concept is applied to one private party’s conduct toward another. As loathsome as they might be, anti-Semites have as much right to their beliefs as I have to mine.
If they start throwing rocks or committing other acts of violence, obviously they have crossed a line; but criminal acts should be punished equally regardless of what motivates them. This is why I object to the concept of “hate crime”: if I commit an act of violence, it shouldn’t matter what opinions I hold that might have motivated me. That’s what we call thoughtcrime.
@susanquinn, I agree completely with your conclusion. It seems that there are already too many laws on the books to protect “classes,” when the Constitution covers the essentials pretty thoroughly.
I think the so-called BDS movement is primarily a thinly-veiled cover for anti-Semitism, which, to me, is one of the most despicable of all human traits. It seems the only “cure” for it is education and the change of individual hearts. Laws can perhaps change some of the conduct, but will never reach the cause. It comes from somewhere beyond my understanding.
What Mr. Marcus suffered in his youth was an assault; maybe assault with a deadly weapon. If he was hit by a rock, assault and battery. In any case, a crime which should have been dealt with locally.
If the police failed to investigate it – or if they were present and failed to intervene – due to their own antisemitism. The next step would seem to this non-lawyer to be the department’s internal review and discipline processes. If that was inadequate, it might be reason for federal intervention that would seem to this non-lawyer to (possibly) due to the state violating the 14th Amendment.
I don’t see the need for additional laws or regulations.
One more thing: I don’t see any way from keeping what Mr. Marcus is proposing off the slippery slope to blasphemy laws.
And another thing: PJ Media reports:
Or… could the plaintiff’s bar do the job on its own? Would one or more of the 60 or so lawsuits being contemplated against the SPLC do them in at last without the need for a new DOJ operation?
It certainly is. In fact, freedom of expression, freedom of assembly, and freedom of religion are all mentioned in the 1st Amendment because the founders wisely recognized them as a single freedom variously manifested. Law need only consider that religious expression — in words, in assembly, and in public behavior — is a particularly dear and commonly restricted form of expression.
Generally, if not always, I dislike claims that something should be tolerated merely because it is religious. We do not tolerate the burning of widows, nor public sex orgies, nor open sacrifice of animals despite long histories of such acts among religious groups. We should not tolerate female genital mutilation either.
A religion is an organized set of fundamental beliefs about reality, life, and consequent standards of behavior. It is literally impossible to tolerate them all because of extreme contradictions, as referenced above. Thus, it is necessary for any government to indirectly represent one cultural and intellectual inheritance. Thus, “… but freedom of religion” is just a cheap cop-out from difficult discernment.
Hate laws are contrary to justice, which should be blind.
Completely agree. I often say they can have any opinions they wish. The argument that people will act on those opinions is nonsense. If I hate you, I have a choice about punching you in the nose, or not. Thanks, @bartholomewxerxesogilviejr.
Thanks, @jimmcconnell. There are still those who say BDS is about Israel. More nonsense. People like us just have to call them on it.
I’ll bet no one else has pointed out this obvious statement!
Right again. And it helps to point out that Mr. Marcus had started an organization to fight anti-Semitism, especially on college campuses. I’d love to ask him why he thinks this extra “level of protection” is even needed.
Well said, @aaronmiller. Discernment is always important especially in these kinds of complex and controversial issues. Thanks.
I would think antisemitism would be covered by the highlighted classes that already exist.
You are correct, @valiuth. That’s my point in this post. For some reason, Mr. Marcus apparently thinks more protection is needed? I fear his life experience is intruding on his own reason.
The point is moot, but it should be remembered that the First Amendment only bound the Federal Government at first -it couldn’t create a national church, nor could it hinder any church within the US. It’s powers were highly circumscribed.
The states, however, could regulate religion as they saw fit -and did. Many states had established churches, and many states outlawed certain religions (Quakers, mainly, this was back before they were nice pacifists). And other states kicked the issue to local populations. There were all kind of crazy religious cults that sprung up in upstate New York. We remember Oneida as some kind of proto-socialism workers paradise that makes silver. The New Yorkers of the time knew them as that crazy sex cult where everyone was married to everyone else, and everyone had sex with everyone else, and all the children were raised communally, and older women acted as the sexual practice for teenagers. (And Oneida is one of the tamer crazy groups.) And they were OK with that, so long as Oneida stayed in Oneida.
On the flip side, Massachusetts almost ended up in a shooting war over whether or not the public schools would teach old-school or new-school Calvinism.
And you always had the escape valve -exercised by Mormons, most notably. If no community would accept you, go make your own. Part of why New York was so tolerant was that they were already losing huge portions of their population to Ohio and Illinois (where the Mormons went first).
None of this is operable today. There is no variation between the states, and the Federal Government intrudes into so many areas, that of course religious liberties are going to be squeezed by the government -and there’s no escape valve anymore. You can repeat this analysis on a bunch of rights -but the great irony of the 14th Amendment is that the incorporation doctrine probably limited rights more than they had been before the Bill of Rights applied to the states, even for former slaves.
Maybe I missed it, @sabrdance, but can I assume that you think that Marcus is just working for one more intrusion into the lives of citizens? (BTW, your comments about the states are fascinating–thanks!)
That’s funny, your link to the protected classes includes “sexual orientation” but not sex. In fact the civil rights act only mentions sex, not sexual orientation, although the EEOC has interpreted it to include that. But the linked webpage in your article doesn’t mention sex at all, just sexual orientation, even though sex is what the statute says. As if it wouldn’t be illegal to discriminate against a customer based on their gender, but would be based on their orientation.
Under our Constitution, this should be very straightforward.
Please re-read the First and Fourteenth Amendments.
They are unequivocal.
Everyone should be equal.
Therefore no protected classes.
None.
No “death penalty for cop killers”.
No “hate crimes”, which are actually thought crimes.
No “ritual” use of peyote.
No “cultural” female genital mutilation.
Everyone should be equal under the law.
End of discussion.
Actually there aren’t protected “ classes” even though liberals always like to call them that (bc it makes it sound like there are certain groups who have special treatment, which is what they want). There are only protected characteristics, characteristics upon which it’s illegal to discriminate.
How does death penalty for the crime of killing cops fit into this?
No, it only protects religious freedom from government intrusion. As you are well aware, the government does a lousy job at keeping its promise not to meddle in religious affairs.
However, civil rights laws are needed to protect Constitutional rights from being trampled by private interests. Where the two butt heads was clearly illustrated in the cake baker’s recent Supreme Court ruling. Leaving aside the details of the case, the issue was which right was more important – one man’s religious faith, or one man’s right not to be discriminated against because of his sexual practice. Religion won, and rightfully so.
I’m almost at the point where I would do away with special classes. If a bigot wants to open a restaurant with a sign in the window that says “No blacks or gays”, then let him do so. I simply won’t eat there.
True. But over the years, that clarity has eroded, expanded and contracted. From Wikipedia:
“Freedom of religion means freedom to hold an opinion or belief, but not to take action in violation of social duties or subversive to good order.”[30] In Reynolds v. United States (1878), the Supreme Court found that while laws cannot interfere with religious belief and opinions, laws can regulate some religious practices (e.g., human sacrifices, and the now obsolete Hindu practice of suttee). The Court stated that to rule otherwise, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself. Government would exist only in name under such circumstances.”[31] In Cantwell v. Connecticut (1940), the Court held that the Due Process Clause of the Fourteenth Amendment applied the Free Exercise Clause to the states. While the right to have religious beliefs is absolute, the freedom to act on such beliefs is not absolute.[32]
At this point, I agree with people being able to set up restaurants with restrictions I don’t like; I’ll just go somewhere else.
You are correct, @bobw. That’s how the it’s all gotten distorted and confusing, as the American Thinker article said. Originally there were only two sexes: simple. Now every time we turn around, someone is declaring a new sex, or sexual orientation, and they all get thrown into the soup. And when this happens, I believe everyone loses.
To all your points, they show how “protected classes” impose on a free society. If someone is protected, others lose out. The government should not be in the business of protecting anything but our most fundamental rights. Period.
Well of course the right to practice one’s religion as one sees fit is not absolute. However, there’s a big difference between suttee or female genital mutilation, and forcing a Christian to bake a cake for a ceremony for something that would be an affront to God . . .
That, and the courts don’t always get it right.
I don’t know enough about what Marcus is doing to have an opinion. I am only noting that the intrusions were made over a century ago, and at this point it is actually quite hard to tell whether a given policy is an intrusion or the removal of an intrusion, because the government is well in excess of its bounds.
I do, broadly, object to this argument. Religious freedom is pointless if the government can just say “general purpose law” and call it a day. This point was made explicitly in RFRA: those religious beliefs least likely to command majority support are precisely the ones that need the carve-outs from generally applicable laws.
The solution, in a country without an established church, is not to make these decisions at the highest levels, and to leave open the option of separation. Utah wishes to keep polygamy -then they may do so outside the United States. Same with India.
I think it’s unconstitutional. The First Amendment prohibits favoring religion, any and all of ’em, over nonreligion.
Cops get extra protection that gynecologists and telephone salesmen dont. Not equal protection. Not legal.
This is the crux of the problem. In order to carve out exceptions for religious people from general laws, the govt first has to say “This is a recognized religion and that isn’t”. Then it has to distinguish between things like widow-burning and peyote. In other words, it basically has to in some way “establish religion”.
Didn’t they approve Wiccan some time back?
This is incorrect. The Constitution prohibits the government favoring one religion over another, but not even Thomas Jefferson thought it prohibited favoring religion over nonreligion. This is a modern innovation and has no purchase in the actual document.
Cops get shot at, assaulted, and knifed more than gynecologists and telephone salesmen. They need the protection. Although I am not brave enough to be a gynecologist either. I like having cops around to keep me and my family safe. I may be able to defend my family, but I would rather not have to.
We wouldn’t need these religious protections if the Left wasn’t trying to force people to do things against their own Religious and Moral judgement. Abortion and Gay Marriage are left wing religious rights– why should the left get to impose their religion on the rest of us”
And there appears to be no end in sight for their efforts. We don’t seem to be able to figure out how to stop them.
All that you say is true except that policemen, with their avowedly hazardous jobs, should not get “more” protection. We should all have that protection. Massachusetts just suffered a policeman and a lady bystander killed by an illegal alien. There are calls to reinstate capital punishment for cop killers. I understand the sentiment but also realize that the lady bystander is just as dead and her family just as grieving as is the policeman’s.
The law should protect us all, equally, just as our founding laws require.