Alright, I won’t get into the aspects of what’s right and wrong or whose religion is correct or incorrect. I’ve done that enough already in some posts in other places. This blog itself is here to stay relatively neutral. There seems to be some confusing regarding the separation of government rule and religious doctrine. The following is a discussion of contraception and marriage rights.
Separation of Church and State
The first issue that needs to be addressed is that there is no clause within the constitution which imposes a complete separation between government and religion. The first amendment says that the government cannot establish religion, nor can it prohibit the free exercise of religion. Basically, all law must be blind to the religiosity of an individual or institution to which it is being applied. Additionally, no law can intentionally or directly improve or damage the condition of religious institutions over non-religious institutions or non-religious institutions over religious institutions. If a full separation of church and state were needed, a religious institution would somehow need to be blocked from benefiting in any way from government. That means zero access to roads, utilities, etc. Furthermore, laws against religious use of illicit drugs, ritual sacrifice, etc would all be in violation of the constitution.
Lemon v. Kurtzman established a test to see whether or not the first amendment has being violated. The lemon test has three components (see Wikipedia article for more detail).
- The statute must have a secular legislative purpose. (Also known as the Purpose Prong)
- The principal or primary effect of the statute must not advance nor inhibit religion. (Also known as the Effect Prong)
- The statute must not result in an “excessive government entanglement” with religion. (Also known as the Entanglement Prong)
- Character and purpose of institution benefited.
- Nature of aid the state provides.
- Resulting relationship between government and religious authority.
There is another argument that some have used to deny various benefits to religious institutions. One is that religious institutions do not pay taxes and therefore they should not get any government benefits. First, this is incorrect. Many churches do pay taxes. In “Understanding Taxation of Religious Organizations,” I wrote an evaluation of tax law, as it applies to religious institutions. However, there are numerous exempt religious institutions. So is it reasonable to deny support to these institutions given their tax exempt status? If this were the case, then all 501(c)(3) entities, including NPR and Planned Parenthood would also have to be denied any government support. To specifically deny religious organizations support would be a violation of the first and second prongs of the Lemon test.
PPACA and contraception
The government has done a lot recently to put pressure on religious institutions and individuals from acting against their faith. Use of taxpayer money to fund programs that also provide abortions assuredly means that taxpayer money is helping indirectly to fund abortions. Now thanks to PPACA the government wants to mandate that health insurance policies provide contraceptive measures, which is in violation of traditional religious practices. This violates both a businesses’ right to provide services as they see fit as well as forces those who are religious to act against their beliefs.
However while the previous case is an example of government asserting force over religion, there is a similar instance of religious attempting to assert force over government. Certain religious institutions want to prevent the ability to obtain contraception. If contraception were made illegal to produce, distribute, or purchase, that would be a case of government policy being directly manipulated by religious doctrine.
Logical flaw: A common argument is that, without mandating that contraception be part of an insurance policy, people are being denied access to contraception. However the flaw is that women have the right to be able to purchase the product and use it if it exists but not the free access to it. If the government did not exist then it would be up to the individual to find a way to get access to the coverage with her own resources.
Same sex marriage
I am using same sex marriage in this discussion, but really the argument extends to other forms of marriage as well. Consenting adults cannot be restricted from entering into marriage for any reason.
Recently there has been a push from the “left” and from the “right” regarding same sex marriage. Many states have same sex marriage as being illegal, while some have started to legalize it. There has been a push by certain fundamentalists to alter the constitution to make it universally illegal. However this violates the basic principals of our nation which demands individual freedom and freedom from the government.
Marriage consists of two parts: the first part is the civil contract between consenting adults. All legal aspects of a marriage are within this civil contract. The government should have no authority to limit contracts between consenting adults as doing so would suppress a natural freedom. The second part of the marriage is the religious aspect of marriage. This aspect can be condoned or not condoned by a given religious institution. Forcing an institution to condone the marriage would be a violation of religious freedom.
Logical flaw: A common argument is that preventing the government from making same sex marriage illegal is the same thing as regulating marriage and that it violates religious freedom. However preventing the government from impeding on an individual’s right to decide on how to live his or her own life is a protection of freedom on all accounts and not a violation of freedom.