Selective neutrality

By Ken Burrows

When the Supreme Court ruled in favor of allowing Colorado cake baker Jack Phillips to refuse, on religious grounds, to design a cake celebrating a same-sex marriage, it cited the Colorado Civil Rights Commission for violating “religious neutrality.” Although Phillips was harming others by discriminating against them in his business, the court found the Commission’s criticism of his religious reasoning to be the greater offense.

But this principle of protecting religious neutrality is hardly applied uniformly. Consider a federal appeals court that earlier this year ruled 2-1 that the Pennsylvania House of Representatives can limit its opening invocations to theistic believers only. That court claimed that only persons who believe in the divine can meet the intent of legislative prayer, because “a petition to human wisdom and the power of science does not capture the full sense of ‘prayer.’” Judge L. Felipe Restrepo dissented. He argued the court failed to stay neutral in matters of religious theory by insisting that belief in God is superior to nonbelief. He said the court’s ruling allows the Pennsylvania House to elevate one religious theory above another.

By contrast, a U.S. District Court in 2018 upheld religious neutrality when it ruled that the North Carolina Department of Public Safety (NCDPS) violated both the Establishment and Equal Protection Clauses of the Constitution by refusing to consider humanists a faith group. The court ordered NCDPS to grant humanist inmates privileges similar to those given to theistic faith groups. In 2015 the Federal Bureau of Prisons settled a similar lawsuit, equalizing privileges for nontheist prisoners and agreeing to include humanism as a recognized component in the Manual on Inmate Beliefs and Practices.

Based on these examples, courts are demanding more respect for religious neutrality in prisons than in official governmental activities. Even though lack of neutrality in the latter raises serious church-state separation issues and affects greater numbers of citizens.

When then Attorney General Jeff Sessions issued his 2017 memo on religious liberty, he gave people (and organizations and businesses) the right to use their religious belief as justification to discriminate. Sessions also specifically stated that in defining “religious” belief, no formal organized religion, per se, has to be involved. A self-claimed belief will suffice, and its validity and sincerity must be accepted as a given. The license to harm others in his directive is far too unrestrained, but a fair reading of the language would support a uniform neutrality toward all religious theories and other deeply held life philosophies (remember, Sessions said formal religion is not a requirement).

That kind of consistently applied neutrality is obviously not happening. In the cake baker case, a high regard for religious neutrality outweighed even discriminatory harm. Applying neutrality in the Pennsylvania invocations case would have harmed no one, but it was readily violated anyway. Clearly, some religious beliefs and life philosophies are granted more neutrality protection than others.

Americans United for Separation of Church and State (AU) criticized the invocations ruling for extending a benefit to believers that is not offered to nontheists. AU stated the decision in Pennsylvania “relegates Americans of a secular bent to second-class status. It tells them their belief system isn’t as good as theism.”

One conclusion is inescapable: When religious neutrality is invoked so selectively, the results are often anything but neutral.

Published in the December 4, 2019 edition of the Freethinkers of Colorado Springs Freethought Views column in the Colorado Springs Independent wth the quotation below.

Difference of opinion is advantageous in religion. --- Thomas Jefferson