Hollman Report

Recent news stories highlight limits of religious liberty

By K. Hollyn Hollman

June 2008

There’s been a glut of bad religion stories in the news lately. You’ve no doubt read about alleged child abuse and polygamy among members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) in Texas and the deaths of children whose parents chose to treat them solely with prayer instead of medicine in Oregon and Wisconsin.

These stories are disturbing, both legally and spiritually, and some people have asked us about their First Amendment implications. While faith inspires much that is good in society, it also inspires acts that are harmful and even deserving of criminal prosecution. As individuals invested in America’s strong tradition of religious liberty, we must acknowledge the limits of free exercise and struggle with difficult cases. Figuring out when and how religion makes a legal difference in tough cases is no easy task, but I’d like to share a few general observations.

First, we should recognize that neither the First Amendment nor legislation protecting the free exercise of religion provide a blanket religious exemption from governmental actions to safeguard health, welfare and safety. One’s religious liberty should not be invoked to trample the rights of others or cause physical harm; there must be limits to our freedom. While government should not take sides in purely religious matters or interfere with religious practices, certain public interests — such as protecting children from harm — can, will and should override private religious decisions. When there is evidence of harm to children, for example, the religious liberty arguments of parents rarely prevail. As supporters of the BJC know, in cases involving the Free Exercise Clause and statutes such as the Religious Freedom Restoration Act, courts must evaluate the burden on religious belief, the sufficiency of the governmental interest at stake, and the manner by which the government pursues its interest. Child safety is undoubtedly an important governmental interest, and no claims of constitutional protection — whether based upon religion or parental rights — will prevent legal accountability for harm to children.

Second, and equally important, we should recognize that our discomfort with religious groups different from ours can cloud our judgment. Even without allegations of child abuse, polygamist communities garner little sympathy. It is hard to see such a different way of life as informed by religion in ways that we respect. The First Amendment and other religious freedom guarantees, however, protect religious belief, expression and practice without regard for a religion’s size, familiarity or popularity. Disapproval of a certain faith does not justify treating its adherents more harshly under the law. It is not by accident that many landmark cases protecting religious freedom for all involve religious groups that exist on society’s margins.

Third, given the inherent difficulty of sorting out rights and evaluating threats in an unpopular, insular community or investigating the death of a child, we should recognize the critical importance of an independent judiciary and fair legal process. The Texas case reveals the state’s broad authority to intervene in significant ways, such as by restricting movement and compelling cooperation with investigations. But the order to separate more than 400 children from their mothers is a harsh measure that two Texas courts have found was too broad. Furthermore, the media’s focus on governmental overreaching threatens to obscure the seriousness of the abuse allegations. The story will continue to unfold and a host of lawyers and child and family advocates will argue about how the state’s and children’s interests should be pursued as children are returned to their mothers. Criminal charges may yet be filed. The seriousness of the case demands a careful consideration of actual harm, potential risks, and appropriate remedies.

It is, no doubt, hard to talk about religious freedom when it means protecting those who hold beliefs different from ours. It is even harder when we fear religious liberty may be abused to deprive individuals from making clear religious choices for themselves or to harm children. Regardless, laws must be applied without fear or favor. Cases dealing with the rights of unpopular religious groups, family autonomy, and harm to children underscore the importance of an independent judiciary sensitive to particular circumstances of individual cases. As beneficiaries of religious freedom protections, we must insist that the law treat all people with fairness, regardless of religion. We know that our religious freedom under the law is connected to the amount we are willing to give to others.