Albert Mohler: Why Is Legal Deference Given to Religious Beliefs? Defending Our God-Given First Liberty in an Increasingly Hostile Age


But next, also abundantly clear is the continuing challenge to religious liberty. Just consider an opinion piece that ran just in recent days in The Washington Post. The headline in the article asked the question, “What’s so special about religious belief?” Kate Cohen is the author of the article, and she asked why, she openly questions why religious beliefs have more protection under American law and constitutional order than other forms of belief. She clearly thinks that’s nuts. It’s wrong. It should stop.

She writes about the fact that New York state has removed the religious exemption for its mandatory vaccination laws concerning children, but then she goes on to ask, “Why would there be such a provision in the first place on this issue or any other?” She writes, “45 states and the District of Columbia have religious exemption laws. Fifteen allow moral or philosophical exemptions. Facing falling vaccination rates, Vermont did away with its philosophical exemption in 2015 but it preserved the religious exemption, at which point many more parents started to have religious qualms.”

She continues, “Our longstanding legal deference to religion is why Jews can wear yarmulkes in court, Sikh soldiers can wear beards and employers with dress codes excluding hats, can’t tell Muslim employees to remove their hijabs. It’s why prohibition,” she says, “didn’t prohibit Catholics from drinking ceremonial wine.”

But then she says, “That’s just the beginning. Religious belief,” she argues, “can exempt churches and schools from providing contraceptive healthcare services to their employees. In some states, it lets pharmacists refuse to fill prescriptions, elected officials refuse to do their jobs, and businesses refuse certain customers. It soon will that businesses with federal contracts discriminate in their hiring and in 9 out of 10 states, it lets parents put other people’s children at risk.” That’s a reference, again, to vaccines.

But notice what she puts in her odious list of things that have gone wrong. That is the allowance of a religious belief exemption on matters such as churches and schools, that would be Christian schools, providing contraceptive health services. This takes us back to the Obama administration’s infamous contraceptive mandate that required even religious organizations and ministries to offer and to pay for contraception coverage, including some forms of contraception that are believed by some to be a abortifacient in nature against religious conviction. And now you’re looking at the fact that this writer, Kate Cohen, in The Washington Post, is arguing, “This shouldn’t even be an issue. There’s no reason why religious beliefs should be given that kind of legal deference.”

Later she goes on to ask outright, “Why should religion exempt people from civil rights legislation and public health law?” She then makes the argument that religious beliefs are not mandatory or immutable, therefore they’re not really different from secular beliefs. But here’s where we need to step back and say there are many religious believers, and Christians would be at the top of that list, who believe that certain beliefs are indeed mandatory and are indeed immutable. But again, the whole point of Kate Cohen’s article is that there should be no particular legal deference to religious beliefs as opposed to, say, secular beliefs.

But what isn’t mentioned by Kate Cohen in this article is that document known as the Constitution of the United States of America. And that Constitution and the Bill of Rights Article One is extremely clear requiring the federal government to respect the free exercise of religion. That makes religion a particularly respected, recognized, and protected category. This is not some kind of modern legal invention. That’s article one of the original ten amendments in the Bill of Rights, which were required for the ratification of the United States Constitution in the first place.

You ask, “Where did this legal deference for religious beliefs begin?” It began in the beginning of the American constitutional order, and the framers of the Constitution understood they were not granting religious liberty, they were not inventing religious liberty, they understood that religious liberty, the first liberty was prior to the Constitution and prior to government. Government’s responsibility was merely to respect and to protect the liberties given to citizens by God.

From a Christian worldview analysis, we need to think about something. It’s not really very likely that even people in Washington D.C. reading The Washington Post are going to read this column by Kate Cohen and go, “You know, she’s making a really good point. We just need to either exclude or we need to remove or we need to amend or we need to just ignore the first amendment to the United States constitution.” That’s not likely, but here’s what we need to watch. Public opinion is changed centimeter by centimeter, perhaps even millimeter by millimeter, not yard by yard or mile by mile. It’s the accumulated force of argument, and what makes this article of singular importance is the fact that it appeared just as it appeared in The Washington Post, the most influential newspaper in the capital city of the United States.

The appearance of any article like this, and then other articles that will follow in the major media, start to push the direction of America’s public conversation. That’s what we really need to watch. A basic and insidious suspicion is being driven within the American public argument and therefore into the American mind, asking the question, why in the first place, would there be any particular respect or deference for religious beliefs? Why does that even make sense in our secular age? And in this secularizing age under all the pressures of our current moment, you can count on that question now being asked in public out loud over and over again.

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