By Ken Burrows
While the Constitution guarantees rights such as free speech, gun ownership, peaceable assembly, and free exercise of religion, these and most other rights have limits. Supreme Court Justice Oliver Wendell Holmes notably said in 1919 that it is not permissible to yell “fire!” in a crowded theater and cause a panic—a now popularly quoted limit on free speech. When the Supreme Court in 2008 broadened the individual’s right to bear arms, Justice Antonin Scalia noted: “Like most rights, the right secured by the Second Amendment is not unlimited. [It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever.” Courts have ruled that the right to peaceably assemble can be limited if it can be demonstrated that a gathering raises a clear and present danger of violence or similar threat to public safety.
In other words, a specified right is not an unlimited license to do harm while exercising the right. However, despite rights having reasonable limits, these limits are regularly resisted when it comes to the right to “free exercise” of religion. With increasing frequency, religionists and their lawyer advocates claim a virtually unlimited right to exercise religion by acting on faith beliefs, even when such actions clearly harm others. SCOTUS Justice Neil Gorsuch recently took this to a new extreme when he offered a concurring opinion in Espinoza v. Montana Department of Revenue in which he said the Constitution guarantees the right not only to hold religious beliefs but also to “act on those beliefs outwardly.”
The list is long on the ways others are harmed through an unlimited right to act on religious beliefs. Children die needlessly when parents freely exercise their religious opposition to medical interventions that can cure ailments. Prospective tenants are denied their fair housing rights when landlords reject them for religious reasons. Same-sex couples are denied marriage licenses by public officials whose religion disapproves of such legal unions. People needing health care—sometimes even in emergency situations—are refused treatment on religious grounds. Adoptive parents are turned away by foster-care agencies for having the “wrong” religion. Amidst a spreading COVID pandemic, religious entities insist on a right to large gatherings despite their known proclivity to be virus spreaders. In all such cases, the justification given is that the free exercise of religion cannot be limited, no matter the resulting harms.
Thomas Jefferson called it unacceptably “injurious” when religion is used to deprive citizens of their commonly held rights. Former Supreme Court justice clerk Marci Hamilton, who has written about excess deference to religion, has argued it is “myopic and undemocratic” to always prioritize the rights of religious entities over all other concerns. In a SCOTUS decision earlier this year that granted permission to religious organizations to broadly discriminate in their personnel decisions and policies, dissenting Justice Sonia Sotomayor said that allowing such trampling of equal rights leads to an “inherent injustice [that] will be impossible to ignore for long, particularly in a pluralistic society like ours.”
To foster a fair and civil society, rights must be joined with a shared obligation to not abuse them. Toward that end, rights must at times have reasonable limits to preclude them from causing harm. The right to exercise religion should not be granted a special immunity from such limits.
Published November 25, 2020 in the Colorado Springs Independent with the "quotation below."
“What does religious freedom mean if we would use it as a cover for hate and privilege?”
― DaShanne Stokes