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Beyond Belief - The Debate Over Religious Tolerance

Publication Date: 
June 09, 2014
Source: 
The Chronicle of Higher Education
Author: 
Christopher Shea

Professor Michael McConnell spoke with The Chronicle of Higher Education's Christopher Shea about the upcoming Supreme Court decision in Sebelius v. Hobby Lobby Stores and the "strong disability" religion faces under the First Amendment. 

Should religious believers be exempt from laws the rest of Americans must follow, if those laws conflict with the teachings of their faith? The Supreme Court is expected to render a decision soon in Sebelius v. Hobby Lobby Stores, a case in which that question is very much at issue. The owners of the craft-store chain, who are Christian, claim a religious exemption from the Affordable Care Act, arguing that to be forced to pay for insurance that covers certain kinds of birth control, like Plan B, which they believe can cause abortions, would violate their First Amendment right to freely exercise their faith.

Much of the debate surrounding that case has focused on whether a corporation can claim the rights of an individual citizen, and whether a religious exemption should be granted even if other people (female employees of Hobby Lobby) will be harmed.

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For some scholars, the founders’ choice to specify "religion" and "the free exercise thereof" in the First Amendment pretty much settles the question. "People have thrown this idea out there from time to time for the last 40 or 50 years," says Michael W. McConnell, a former appellate judge who is director of the Stanford Constitutional Law Center, referring to the equating of secular and religious views. "But it makes no headway in the courts, for the good reason that the First Amendment uses the word ‘religion.’ The founders … considered alternative drafts that would have protected the right of conscience, and they settled on protecting the free exercise of religion."

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But McConnell, of Stanford, argues that religion does face a strong disability: Under the First Amendment, its "establishment" is explicitly forbidden. So while an ardent Kantian or utilitarian or environmentalist could teach a course in a public high school advocating his views, a Christian could not. That crucial asymmetry undermines the notion that secular and religious views are interchangeable.