On the Ranking of Rights

Thinking Anglicans has a very thorough round-up of reports (including the full statement of the court) concerning the European Court of Human Rights decision on some alleged infringements of religious rights on the part of employers.

The principle upon which the court bases its decision should come as no surprise to those familiar with human rights, that is: that one's exercise of a right should not constitute an infringement of another's exercise of a right — whether the same right or a different one. In particular, it is abundantly clear that the right to one's religious beliefs and practices does not include the right to deny others a public accommodation or service simply on the basis of one’s religious objection to the manner of life or behavior of that other person — including his or her own religious beliefs.

The court found that the employer who said an employee could not wear a cross because it conflicted with brand identity had indeed infringed upon her rights; but in the case of an employee who was offered an alternative way to express her religion because the means she chose to express it constituted a possible hazard (offered a pin instead of a cross on a necklace), the court found that the offer was reasonable. The other two cases involved people whose employers required them to provide services to mixed-sex and same-sex couples alike, and the court ruled that their refusal on the basis religious objection infringed upon the rights of those to whom they wished to deny service.

This decision, taken as a whole, provides a good balance in addressing the hierarchy of rights. If we accept one legal definition of a right as not simply a freedom to carry out a given activity, but as placing an obligation upon others (whether individuals or society as a whole) it is perhaps easier to see the issue in terms of a ranking of obligations: those who provide public accommodations are obliged to provide them without discrimination; employers are obliged to protect their customers and clients, and provide services without discriminating; a religious believer who feels an obligation to profess his or her faith through the wearing of some visible symbol, or to profess a given belief, has a right to do so unless it conflicts with some other duty which they are also obliged to carry out in reference to someone else.

It is earnestly to be hoped that a similar clarity of thought can be applied to the issue of the provision of health insurance.

Tobias Stanislas Haller BSG

Thought for 9.16.12

Freedom of speech should be governed by soundness of mind and charity of heart.

Tobias Stanislas Haller BSG
Inspired by James 3:1-12

Going Courting

A collection of cases is heading to the European Court of Human Rights concerning alleged infringements on religious liberty by people forbidden to wear crosses in the workplace and being required to perform civil partnership registrations for same-sex couples, among other related matters.

The thing that strikes me in this is the question of how deeply Christian it is to be concerned about articles of religious clothing or decoration, and the ability to make determinations about the moral status of other parties, refusing to have anything to do with them. WWJD? Perhaps more directly, WDJS (what did Jesus say?) about such matters. Critique of broad phylacteries and fellowship with outcasts seems rather to have been his metier.

Tobias Stanislas Haller BSG
hat-tip to Thinking Anglicans

Supreme Court on Freedom of Religion

In an earlier post, I had said that I did not think the requirement that health insurance including contraceptives being available to the employees of church-related institutions violated the constitutional right to the free exercise of religion. This afternoon I came across a passage from the SCOTUS Opinion on Employment Division v. Smith (1990) and think it supports my view, though the circumstances of the case were very different. The Opinion was penned by Justice Scalia.

Here is a portion I think relevant to the contraception discussion (read the full document if you wish.) :

We have never held that an individual's religious beliefs [p879] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594-595 (1940):

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.

(Footnote omitted.) We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. "Laws," we said,

are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Id. at 166-167.

Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a

valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).

United States v. Lee, 455 U.S. 252, 263, n. 3 (1982) (STEVENS, J., concurring in judgment); see Minersville School Dist. Bd. of Educ. v. Gobitis, supra, 310 U.S. at 595 (collecting cases).

I would argue that this seems that the general health care insurance requirement, which is valid and neutral, and not explicitly religious, would not be held as a prohibition of the free exercise of religion. I'm also pleased to see that Justice Scalia makes the argument I did concerning withholding ones taxes out of a religious objection to the fact that some of those taxes are used for warfare.

Tobias Stanislas Haller BSG

Contraception Coniption

In response to my earlier post on the subject of the extent to which religious expression has to engage with a larger social world, one correspondent expressed astonishment that I did not see what he believes to be the point: that a constitutional right is being infringed by a merely civil action.

My point, of course, in that post, and now, is that there are in fact limits to the free exercise of religion, and many of them are parts of statutory law. These regulations do not prohibit free exercise of religion, to use the language of the Constitution, and they provide some separation between the religious doctrine and the civil provisions.

Some Roman Catholics are upset at having to provide health insurance to employees in church-related institutions that includes coverage for procedures or prescriptions to which they are opposed on religious grounds. I do understand their opposition. They do not understand the legal principles at play, and have come up with analogies — such as Bishop Lori's Kosher Deli required to serve ham — that go far to revealing their lack of understanding.

What they fail to grasp is that health insurance is but one part of employee benefits. Some of these benefits have long been mandated by law, as, for example, minimum wage. The provision of health care insurance is now similarly mandated. But the fact that the health insurance includes coverage for contraception is ultimately no different — ethically speaking in regard to the employer's responsibility or agency either for the provision or the use of contraceptives — from the salary itself being spent on things of which the employer might disapprove on religious grounds. To take the Bishop's example, there is nothing to prevent a Kosher deli-worker from spending his wages on ham, or even bacon-and-swiss, sandwiches. Neither the deli nor the church is responsible for the religiously objectionable act. They may not like it, but they are not morally responsible for it.

To take an extreme example, imagine a Roman Catholic priest who uses a portion of his stipend to pay for his sister's abortion. This is, needless to say, a very grave matter and carries a very serious penalty, which the church is by all means free to impose. But for that very reason it would be absurd to suggest that the church itself was "providing for the abortion" simply on the basis of the fact that its funds, paid as a stipend, were used to that end, and by one of its officials at that.

No individual's religious rights are being abridged or impeded by the provision of health care insurance — nor is the church's collective right to teach as it chooses to teach. There are several degrees of separation between the teaching and the insurance, any one of which is sufficient to insulate the church from any moral responsibility. It is as simple as that.

Tobias Stanislas Haller BSG

Religious Freedoms Are Limited

The recent to-do over insurance plans providing contraception seems to me to be a good example of exactly where the boundary to religious freedom lies -- with oneself and those who share ones beliefs. Thus it is perfectly fine, to my mind, for a church to be allowed to tell its clergy and its religious employees not to have a certain kind of insurance coverage -- or to let the coverage be there but unused, which it seems to me is the real ethical point. (I mean, just paying for something because you have to does not indicate approval --- Lord knows I can mention several foreign wars of the last five decades upon which I wish my tax money had not been spent.)

But it is wrong to assert that the mere provision of a benefit is unacceptable in the context of something not directly a religious institution such as a church, but what the old orders would call "a work" (a school or hospital, for example), in which employees may well not be adherents of the particular sect or beholden to its beliefs.

In short, it is fine for the Roman Catholic Church to teach against contraception, and to insist its adherents make no use of it, but completely specious to claim that they are morally compromised by providing insurance coverage that happens to include this benefit to people who are under no obligation to use it, nor, in some cases, under any obligation to adhere to the teaching.

Otherwise, any Jehovah Witness-sponsored organization should have the right to insist that its secular employees not be covered for blood transfusions; 7th Day Adventists should be able to forbid their non-church employees from being fed hospital food containing meat, and Jews and Muslims, pork. And let's not even get started with the Christian Scientists, who ought, under this understanding, to be able to refuse the need to provide health insurance to anyone who works for them.


On that, just to be clear, I do defend the right of any person not to have health insurance on the basis of their religious belief; and I think that Christian Scientists should be granted that individual exemption, just as some of the Mennonite (Amish) groups members are --- though for different reasons concerning opposing receipt of government assistance.


But let's be clear: the individual right to make moral decisions for oneself is not something to be spread and imposed on others. If you don't want health coverage, no one is forced to use it, even if you are required to pay for it. A truly principled "martyr" would pay and stand tall in refusal to use.


Tobias Stanislas Haller BSG

Albert John Luthuli of South Africa

Eternal God, we thank you for the witness of Chief Luthuli, Nobel Laureate for Peace, who was sustained by his Christian faith as he led the struggle against apartheid in South Africa. Strengthen us, after his example, to make no peace with oppression and to witness boldly for our Deliverer, Jesus Christ; who with you and the Holy Spirit lives and reigns, one God, for ever and ever. Amen.

For his feast on July 22 — posted early as I will be on retreat.
Ikon written by Tobias Stanislas Haller BSG

Four for Freedom

O God, whose Spirit guides us into all truth and makes us free: Strengthen and sustain us as you did your servants Elizabeth, Amelia, Sojourner, and Harriet. Give us vision and courage to stand against oppression and injustice and all that works against the glorious liberty to which you call all your children; through Jesus Christ our Savior, who lives and reigns with you and the Holy Spirit, one God, for ever and ever. Amen.

For their feast on July 20 — posted early as I am going on retreat.
Ikon written by Tobias Stanislas Haller BSG

Freedom and Responsibility

Giles Fraser has penned an as usual thoughtful essay concerning the dynamic tension between freedom and the restraint to freedom brought about by being in relationship with others.This tension is well characterized in that evocative phrase, bonds of affection. Giles wisely observes the distinctions needed:

Freedom is not about having no restrictions — that is something empty and weightless — freedom is about having some sort of say in the restrictions that apply to you.

It is that "having some sort of say" that is crucial. A forced marriage is no marriage — indeed, consent is the crucial element in marriage. It also strikes me that this "having some sort of say" is what distinguishes the paschal mystery from the Girardian scape-goating conceived by Caiaphas: Christ was not simply the passive victim trapped in circumstances beyond his control, but one who offered himself to save others in the way a hero throws himself on a grenade. This free act of giving up all control was and is a cosmic undermining of the urge to self-sufficiency and ego-satisfaction that lies at the root of human sinfulness — the hunger for self-determination at whatever cost to others, even, ironically and in the end to oneself.

It is well to remember, as I have reminded us all before, that the motto of the Anglican Communion is "The Truth Shall Free You." This is, as Canon Fraser suggests, not an untethered freedom to do anything at all, a freedom so free that, as Witkacy observed in The Shoemakers, "it comes loose." The freedom to which Jesus (in John) refers is freedom in the old sense the ancients would have understood completely: freedom from slavery. Perhaps we would best translate ἐλευθερώσει as "emancipate" to remind ourselves what this freedom is freedom from, and what it is freedom for. Those to whom Jesus spoke understood, for they protested they were never slaves to anyone, little knowing what bonds of slavery they had long since submitted to.

Tobias Stanislas Haller BSG

The Nature of a Freedom

The right to freedom of religion is the right to believe as one chooses, and practice those beliefs. It is not the right to insist that others conform to those beliefs.

On this distinction hangs some of the tension in the DADT Repeal vs. Some Army Chaplains, and much of the pressure from religious groups against same-sex marriage, and in the recent decision of the UK Supreme Court.

Tobias Stanislas Haller BSG
with h/ts to Episcopal Café and Thinking Anglicans

Thought for St John's Day '09

The motto on the Compasrose emblem of the Anglican Communion states a timeless concept from John the Divine: "The Truth will make you free." (John 8:32) It is good to remember, in light of an increasing number of assertions and asseverations concerning that Communion, that the inverse is also true: "The Big Lie shall make you slaves."

Tobias Stanislas Haller BSG

Truest Life

A sermon from Saint James Church Fordham

Proper 22b 2009 • Tobias Stanislas Haller BSG
For the man there was not found a helper as his partner.+

The second chapter of the Book of Genesis presents us with a marvelous example of God’s generosity and care, and the extent to which God’s children have the responsibility to make decisions, and how God abides by those decisions once they are made.

You no doubt remember the events that lead up to the events described in our reading from Genesis today. God created Adam from the clay of the riverbank, breathing into him the divine life and spirit. And God planted the beautiful garden of Eden, and placed Adam in it, to tend it and care for it as God’s gardener. And God looked down upon this peaceful creation and instead of smiling at its goodness, frowned slightly and shook his head a little. And for the first time in the whole narrative up to that point God said that something was not good.

And what was that? Was it something God had made? No; it was something yet unfinished, something yet to be made. “It is not good that the man should be alone; I will make him a helper as his partner.” And taking more clay, the same stuff he’d made Adam from, God set to work.

Now, this next part of the story is something many people forget, so I’m glad it was included in this morning’s reading. For what was it that God made out of that additional clay? Not another human being, but rather all of the animals of the field and the birds of the air. And God brought all of these creatures to Adam, for Adam to name, approve and accept. But Adam did not find among them a helper meet or suitable to be his partner.

Only then did God put Adam to sleep and take, not more clay this time, but some of Adam’s very own body, to make for him a helper suitable to be his partner, one like himself. And Adam recognized this kinship immediately, and rejoiced that at last here was one like him, another human being, one who could truly be called his mirror image, bone of his bones and flesh of his flesh.

The wonderful thing about this narrative is that God gave Adam such respect, and abided by Adam’s judgment as to who in all creation was to be his helper and partner, one truly like himself. God did not force Adam to be content to live alone as a solitary hermit in a garden. God did not force Adam to be happy with just the animals to keep him company. God did not take offense when Adam shook his head at all of these other creatures, and found none to be a suitable partner for him. God did not force Adam to accept them, and didn’t get offended and say, “Who do you think you are to turn down what God has provided.”

Rather God allowed Adam the freedom to choose the one who was like himself, his own flesh and blood, as a partner and a helper. God used no force in this: but allowed freedom, revealing, as our Gospel hymn said, that “force is not of God.”

+ + +

Well, you know the rest of the story. Adam and Eve lived in the garden only for a short time. One of those animals Adam had rejected as an unsuitable helper and partner perhaps didn’t take too kindly to the rejection. It was the creature God made with some of the leftover clay, the kind of animal any child knows is the easiest thing to make with a lump of clay — just as the Gary Larson cartoon shows God at his work table rolling out the snake and saying, “Gee, these things are a cinch!” Cinch it might be, but it opened up a whole can of worms! The serpent wriggled in and did his dirty work, sowing the seeds of discontent and pride, taunting with the fear of death, tempting with the promise of divinity, leading Adam and Eve to disobedience. The serpent dangled temptation before them, and they bit.

And so the caretakers got evicted from the garden. And for thousands of years human beings continued to stumble about in their ignorance and pride. Humanity lived under the fear of death, yet unable to escape it, no matter what they did, alternately sinned against and sinning, unable to find righteousness even though God tried time and time again to show them how, by giving them the Law and inspiring the preaching of the Prophets.

God would not, you see, simply force people to be good, any more than God forced Adam to accept Eve. God wanted people to be good from the inside, good from the heart, not just coated over with a whitewash of proper behavior, but deeply loving, deeply just, deeply free — and deeply responsible for the choices they made in that love, justice and freedom.

Just as God had a few false starts in creation, so too there were false starts in this re-creation. God first gave the people a law written in stone, and the people disobeyed it and rejected it. God sent the people prophets, but they ignored them or mistreated them. God gave the people kings and most of the kings turned out to be worse than the people!

But finally, in the fullness of time, God decided to do something similar to what he had done way back in Eden. God would not this time send the Law. God would not send a prophet. God would not send a king, at least not the kind of king people were used to. God would not even send an angel.

God would instead give to humankind one who was human, a human being like Adam himself, but one who was also divine, one who was God incarnate. God would choose incarnation — being made flesh — our flesh.

So as of old when God took the raw material from a human being, from Adam, this time God took from the flesh of a young woman named Mary all that was needed to make the one who was for a little while to be made a lower than the angels, one not ashamed to call men and women his sisters and brothers, for he shared the same human flesh as they — as we. “He sent him down as sending God; in flesh to us he came; as one with us he dwelt with us, and bore a human name.”

+ + +

The human name he bore is Jesus, which means Savior. The divine name he bore is Emmanuel, which means God is with us. He was and is our Saving God who is with us, who shared with us in mortality and pain, shared the weakness of human flesh, so that he might redeem and save that human flesh. He suffered death so that he might destroy death for ever, and destroy the one who, as the Letter to Hebrews says, had the power of death, the same devil who ages before had snaked his way in, to ensnare and enslave humanity by their fear of death.

Jesus, our Savior and our God, is also our brother, for he taught us to call his Father our Father. We who share in the flesh of Adam also share — through Jesus — in the Spirit of God. The old serpent can do nothing to us any longer if we do not let him. He’s done his best to do his worst, and he failed utterly when Jesus broke the power of death and was raised to life again. And we who are united with Jesus in his death, are also given the power to rise with him in his life.

We can still refuse God’s offer. God respects our freedom too much to force us to follow the path he so desires for us. And there are those who would rather listen to a serpent’s lies than to God’s own truth. There are still some so possessed by their fear of death that they have forgotten how to live. We look at a world in which we see that all things are not under human control — disease, crime, famine, and injustice still seem to rule. Some seek long life or wealth, or pleasure or fame, but rarely find lasting happiness. But we also see Jesus, the human one who suffered, the human one who died, who gave up everything and yet who through the power of God triumphed over everything, and now is exalted over all things.

We too can confront all the shallow promises of the world, promises offered in the devil’s accent, to find that none of these things will answer our deepest need. In none of these things can we find our true and final happiness whatever the snake may say to the contrary. It is only in Jesus — God from God, light from light, true God from true God, that we recognize our own truest human self — the perfect image of humanity made after God’s own image and likeness. God offers us the option, and will not force us to choose life rather than death. God invites us to find our truest life in him, and has shown us the way, but he will not force us on that path.

In this is our hope, our freedom, and our challenge. As we make our choices, let us always remember the promise of our Gospel hymn, and choose rightly:“Not to oppress, but summon all their truest life to find, in love God sent his Son to save, not to condemn mankind.”+

---

A Follow-Up Thought

Following up on the thought from the 23rd...,

To grant special exemptions (from the need to obey laws that protect other human rights) on the basis of religion creates a hierarchy of rights in which religion trumps everything else. This is, precisely, a form of establishment of religion.

Tobias Stanislas Haller BSG

Thought for 02.23.09

When ideology interferes with human rights we tread on dangerous ground — covered, sadly, with many footprints.

— Tobias Stanislas Haller BSG,
in response to this post on Episcopal Café