What Are ‘Sincerely Held Religious Beliefs?’ Nobody Really Knows.

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Archbishop Gustavo García-Sille holds his hands in front of the cross during a conversation. Photo by Scott Ball.

Scott Ball / Rivard Report

Archbishop Gustavo García-Siller holds his hands in front of the cross during a conversation.

In its professed zeal to protect religious Texans, the State Legislature has included within an increasing number of laws exemptions for those with “sincerely held religious beliefs.” Unfortunately, lawyers remain uncertain about the scope of “religious liberty” that it seemingly protects.

One might begin with some practical examples of conduct that are not protected under almost all current readings of the Free Exercise Clause of the First Amendment or the Religious Freedom Restoration Act (RFRA), which is the basis of almost all current litigation involving national law.

Consider Jehovah’s Witnesses who might demand that their children not receive blood transfusions because of their undoubtedly sincere belief that it is the “drinking of blood” that is prohibited by the Bible. There are now multiple cases that reject this claim of parental authority, however sincerely religious it might be, because of the obvious threat to the life of the child. Courts have therefore ordered that transfusions be given.

So one should wonder whether a religious parent could invoke a “spare the rod and spoil the child” defense if charged with child abuse; could an abusive husband quote the Bible to defend “chastisement” of his wife for disobedience? One would hope not.

In a notable case arising in the 1960s, a religious conscientious objector to the Vietnam War, whose reading of the relevant materials required only “selective” conscientious objection – to “unjust wars” – rather than to all wars, received no support from the Supreme Court. The Supreme Court had protected pacifists who did not distinguish between “just” and “unjust” wars, but picking and choosing between the two was left unprotected.

Courts have also been notably inhospitable to individuals claiming that their idiosyncratic religions require the smoking of marijuana. Quite often, the judges reveal their obvious skepticism about the “sincerity” of the religious beliefs. But an especially important Supreme Court decision in 1990 upheld the law against illegal drug use for participants in well-established Native American religious ceremonies that involved peyote. No one doubted the sincerity of the beliefs, but the “war on drugs” took precedence, according to six of the justices. It was this decision that triggered the almost unanimous passage of RFRA, which ultimately led the court in the 2015 Hobby Lobby case to adopt the catchphrase “sincerely held religious beliefs” that was seized by the Texas Legislature.

Even if one has doubts about the “religious” status of the new Church of the Holy Weed, committed to sacramental use of marijuana, that is not the case with most of the examples above. Throughout its history, the U.S. has been a breeding ground for new religions. The most important example is the Church of Jesus Christ of Latter-day Saints (Mormons), who were subjected to relentless persecution in the 19th century until the Church announced that polygamy was no longer part of its religious doctrine. The Supreme Court upheld jailing some of its polygamous leaders (and seizing the Church’s assets) because polygamy was an “action” and not merely a “belief.” But, of course, this is true of almost all the contemporary “liberties” that the Legislature wants to protect.

It cannot be the case that all actions are exempted from potential punishment if one can justify them on the basis of a “sincerely held religious belief.” Inevitably, we must pick and choose, with precious little genuine guidance from lawmakers or the Supreme Court. Ultimately, we rely far more on general cultural norms as to what we wish to tolerate at a given time. Those who support a baker’s refusal to sell a cake to be used in a same-sex marriage are unlikely to be sympathetic if the same baker, quoting another passage of Scripture, refuses to sell a cake to an interracial couple.

So it is not the case that all “religious” defenses will necessarily be accepted. An additional problem, though, is that we have trouble distinguishing “religious” and “nonreligious” beliefs.  One might immediately think of belief in a supernatural (single) God (or god) who issues behavioral commands, perhaps with eternal damnation as the threatened cost of disobedience. But there are a lot of “religions” that have no such beliefs. The most prominent example is Buddhism. Indeed, the Texas Almanac suggests that there are more Buddhists in Texas than there are Jews.

It is tempting to think that proponents of “religious liberty” are all politically conservative. That is a mistake. Consider, for example, the contemporary issue of providing “sanctuary” to undocumented aliens being threatened by state and national policies. Even if one can scarcely ascribe religious sensibilities to the cities that are refusing to collaborate with the national government, that is clearly not the case with regard to members of various churches who might decide that the biblical command to “remember that you were strangers in the land of Egypt” requires standing in solidarity with their threatened neighbors.

Will would-be devotees of religious liberty who are obsessed with issues such as abortion and same-sex marriage be equally sympathetic to claims made by those giving sanctuary to people that some consider to be mere criminals instead of vulnerable fellow human beings deserving of our help?

At the very least, it should be clear that the four words selected by the Texas Legislature generate an almost endless set of issues and, undoubtedly, future cases to be litigated. 

4 thoughts on “What Are ‘Sincerely Held Religious Beliefs?’ Nobody Really Knows.

  1. Wow! Well said, Sanford Levinson. Talk about opening the perennial “can of worms?” These fundamentalist Christians are hellbent on imposing their brand of “religious beliefs” as law of the land and completely obliterating the faith credos of Texans who are Jewish, Hindu, Muslim, Buddhist, Mormon … Wiccan, you name it.
    State religions NEVER work. Read what happened to Catholic zealots in Mexico during the Cristero Wars of the early 20th century. It ain’t pretty. Why can’t people get this through their “pious” skulls?

  2. Many people sincerely believe that female circumcision is required by their religion. Many Muslims sincerely believe in “honor killing.” A recent poll showed that 98% of American Jews support abortion and sincerely believe that what is best for the family should be the decision of the family. Yet, for a couple of centuries they have been denied religious freedom by another religion. Until 1980, most evangelicals believed that life begins at birth. Fundamentalist Christians sincerely believe the Bible is literally true and that the creation story should be taught in public schools, but that story literally states that Adam was made in the image of God but did not have a soul until God gave him the breath of life. Nonetheless, they sincerely believe that abortion should be outlawed because they believe the Bible gives men authority over women and if women control reproduction they will have power men.
    No employer should be allowed to restrict the religious freedom of an employee because the Bill of Rights was written to declare the rights of breathing citizens, not godless companies and corporations.

  3. My belief is that anyone wanting to impose religious beliefs as protected ones wants the United States to become the Christian Republic of America which would be the equivalent Christian version of the Islamic Republic of Iran–one in which the religious beliefs of those who are Christians would be forced as lifestyle rules upon everyone no matter what. Even Christians complain that the Islamic Republic of Iran forcing Islamic rules, Sharia law, etc., is wrong in Iran. So why do they believe that imposing Christian beliefs is right in America? If they get their way, I hope there will eventually be retribution for them. The ideal situation for America, as recognized by those writing the Constitution and the Bill of Rights, is that we be a secular state where we may believe what we want, cannot force our beliefs on others, and must not discriminate against others because of our own religious (or lack of religious) beliefs.

  4. Laws like ones highlighted by Professor Levinson, are part of the strategy to chip away at the separation of church and state, normalizing, over time, the idea that religious ideas belong in government. I’m unsure how the religious right captured the Texas Legislature, but it is not a good thing. It is dangerous to democracy.

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