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Freedom and Regulation
By Harry T. Cook
4/26/13
 | | Harry T. Cook |
Along my walking routes, I encounter on two or three properties lawn signs that read: SUPPORT RELIGIOUS FREEDOM. As a long-time civil libertarian and member of the American Civil Liberties Union, I am a natural supporter of religious freedom. I understand the First Amendment to include an out-and-out prohibition of any constitutional or statutory establishment of any religious institution or movement. The flip side is that government cannot prohibit the free exercise of religion. Law flowing from the First Amendment makes clear that "free exercise" may not include trespass upon public safety concerns or personal freedom. In my view, the unwanted presence at the front door by Jehovah's Witness canvassers comes close to trespass. Though the principle is not explicitly stated, I have long thought that the First Amendment was meant to guarantee freedom from religion as well as of religion -- meaning that residents and citizens of the United States are free to take religion or leave it. Upon examining those lawn signs more closely, I found that their call for the support of religious freedom means opposing the Affordable Care Act's mandate that health care givers provide women with contraceptives upon request and certainly such contraceptives prescribed for them by physicians. The Roman Catholic hierarchy pushed back because it wants the "religious freedom" to deny women contraceptives on the grounds that contraception is, according to its teaching, a grave evil. Likewise, the legislature in my state (Michigan) is on the cusp of enacting a statute that would make it permissible -- and maybe even heroic by some lights -- for a physician to refuse treatment or a pharmacist to fill a prescription, both on religious grounds. This is the same legislature that just two years ago abolished the regulation requiring motorcyclists to wear to protective helmets, thus ushering in a new crop of closed-head injuries and the heavy costs associated with their treatment, which eventually trickle down to the debit column of the public checkbook. This is where freedom and regulation meet. Industry, for example, tends to resist government regulation -- even as certain health and safety regulations, had they been put in place and enforced, might have spared the people of West, Texas, from the near annihilation of their city. Cloaking its pusillanimous inaction in a twisted interpretation of the Second Amendment, the U.S. Senate last week could not muster sufficient votes to put in place laws that would require background checks on those seeking to purchase firearms. That is one regulation 90% of Americans would welcome. Someone will eventually ask how the Tsarnaev brothers were able to amass their arsenal. Both resistance to regulation and demands for it, both often enough urged by religious leaders, are seen in our time to be almost patriotic. It was not so long ago that young men who resisted the draft on religious grounds were derided as traitors, while those who oppose the tightening of regulations on reproductive rights are called baby killers. What's changed? Are "We the People" at the edge of turning our country into a religious republic, � la Iran, where Koran-based mandates and prohibitions abound in ways not so dissimilar to prohibitions many American legislatures and some religious leaders wish to place upon the reproductive rights of women at the same time as regulations limiting the owning and carrying of guns are scorned as un-American? "Religion" is a much used and abused term. Religare is the Latin term. And it means restraint or, well, regulation, and implies that the restraint is self-imposed. Outside the Quaker community, I don't know of any organized religion that has ever been known for its restraint, with the possible exception of some Mennonite and Amish groups. Religion is often associated with overt piety. A religious person goes to church or synagogue or mosque, follows the rules, believes what is required and doesn't rock any boats in the process. As we have seen, though, "religion" has fundamentally to do with restraint. A careful parsing of the First Amendment suggests that our Founding Parents seemed to have understood the concept. Thomas Jefferson in 1802 composed a letter to the Baptist synod of Danbury, Conn., which had inquired of him if freedom of religion had been granted by the Constitution or simply recognized as an a priori principle in its text. Jefferson replied: "Religion is a matter which lies solely between Man and his God" -- continuing in the course of the letter to coin the phrase "separation of church and state." Jefferson concluded by saying that one "has no natural right in opposition to his social duties." In that statement, I think, is the ground on which religious freedom and necessary regulation meet. In a nation founded on Enlightenment understandings and values, it is important to regulate those things that can be used to do unwarranted harm to people, e.g. guns. Likewise, it is important not so much to grant but to recognize certain natural rights of people, e.g. to control their own bodies as in women's reproductive freedom. Above all, in such a nation, it is important to hold religion at bay in such constitutional determinations, especially if a given religion fails to understand what religare means. | 
