Thought For The Day
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The longer an elected official remains in the swamp of Washington, D.C., the farther he drifts from mainstream Americans. Recycle Congress in 2010 - No exceptions
Is Religion’s Standing in American Society Absolute?
John W. Howard
A young man came into my office last week looking for a job as an associate in my law firm. He seemed bright enough, went to an Ivy college and a great law school, and graduated law review at the top of his class. During our interview, though, I was stunned by some of what he said. He observed that the law is merely a tool to be used in service of our clients and is entitled to no more dignity than any other set of arbitrary rules when it comes to getting our clients what they want. When I asked if that meant he would allow a client to lie in court, he said “certainly.” There is a higher purpose to what we do, he said, than to slavishly observe laws against perjury. Everybody lies in court. If we are unwilling to let our client do so as well, we will be at a tremendous competitive disadvantage. We are there to help our clients and if the way to do that is to lie, then that is what we have to do.
“In fact”, he said, “I am not above a little intimidation, if necessary.” Horrified, I asked him what he meant by that. He told me that the object of litigation is to win and that if witnesses exist who are inclined to hurt our case, he would not have a problem with a visit to suggest that if they step forward, we may not only take action against them in court, but they could find themselves in physical danger. He felt that the higher purpose was our clients’ wishes.
“But what about discovery rules?” I asked. He told me that if there were documents of which we were aware that hurt our client’s case, we have not only the right but the responsibility to destroy them, so the other side cannot see them and use them against us. When I pointed out that the statutes forbid this, he said “Laws are made to be broken. When our clients’ goals are at stake, we cannot afford to be fastidious with observing the rules.”
He went on to tell me that some people should not be entitled to the same rights we enjoy under the law, in any event. Some, he told me, subscribe to philosophies that we just should not approve of and it is entirely appropriate to fine them for that, forbid their discussing their discredited ideas and charge them a special tax for believing as they do. “What about the First Amendment?” I asked. He said the First Amendment is not absolute and as far as he is concerned it protects only “right” ideas, not all ideas. It would be absurd, he observed, to think that this society, or any society, should tolerate ideas so contrary to its values.
I was horrified and did not hire him. But did I have the right to discriminate against him on the basis of his ideas? He had clearly thought them through but it seemed to me that they were so contrary to what we stand for as lawyers devoted to the rule of law (not to mention the fundamental basis in individual freedom that defines us as a nation), I simply could not hire him when his views were so contrary to my own and what I perceive to be the nature and purpose of law. It seemed to me likely that he would undermine what we stand for and the work we do.
If you think I was right in refusing to hire someone whose ideas strike at the very heart of American justice, would your answer be different if I were to tell you that his views were tenets of his religion? We have laws that prohibit discrimination against people on the basis of religion. So, how can we square our horror at the views of a person that are so anathema to the fundamental philosophical foundations of our nation with the prohibition against discriminating against him on the basis of those views? Must I receive into my life and business people who seek to destroy what I hold dear, much less provide them with the resources with which to do so?
It is no mistake that the first freedom protected under the First Amendment of the Constitution is freedom of worship. That reflects not only the huge place religion, primarily the Christian religion, occupied in the minds of the Framers, but demonstrates the extent to which protection of religious freedom was the very object of the founding. From the earliest days of colonial America until the recent past, we have observed a deference to religion and religious belief that is unequaled anywhere else. Religious values, we believe, are those most deeply held. If religion means anything, it is as a guide to our lives and conduct, and informs and defines our very purpose. If religion is something to be compartmentalized and observed mainly on the Sabbath in houses of worship, and otherwise ignored during the rest of the week in the conduct of our lives, it has little value and does not hold the importance most people of faith believe it does.
So it is that the Constitution prohibits “religious tests” for holding public office and protects the free exercise of our various religious faiths. So it is that the first anti-discrimination laws were directed toward the protection of citizens from discrimination on the basis of religion. So it is that even now, we instinctively shrink from harsh judgment on the basis of religion and religious views. That is, in part, why this nation has avoided the sectarian conflicts that have torn others apart, even in the modern age: think of Ireland as a First World country, and India as a Third World nation.
But if religion informs the conduct of its adherents, it follows that one may judge the likely acts of a religious person by reference to his religion. There was no applicant to my law firm such as I have described here. But what if there had been? All of the views I set forth for my mythical applicant were consistent with Islamic teaching and the treatment of non-Muslims in Islamic countries. The views I described are contrary to the obligations we undertake as lawyers when we take our oaths of office to stand for the rule of law and zealously protect the integrity of the system of justice. How, then, could anyone give a lawyer who has those views a job which would require that he either violate the tenets of his faith or conduct his law practice in an unethical manner; thwarting, in the bargain, justice as we have defined it?
In pointing out the sacred place religion occupied in the minds of the Framers, I observed, advisedly, that their main object was the protection of the various sects of Christianity. I anticipated that some readers might be offended by that observation, even though it is true, but it was made to make the point that the Framers did not, could not, have anticipated that there might some day arrive on our shores a religion that preaches a body of thought that runs so completely counter to the very fundamental ideas that define this nation. Even as late as the 20th Century, Islam was virtually unknown to Americans and ill-understood by those with a passing familiarity with it. What was never clear was the extent to which fundamentalist Islam strikes at the heart of the notion of American liberty.
Perhaps, then, it is time to revisit our reluctance to judge and our prohibition of discrimination on the basis of religion. If religion governs ideas and ideas govern conduct, it might be time to refine our deference to religious impulses. Perhaps it is time to be more precise with what is protected. A good start would be for courts to begin to recognize that the free exercise of religion is no more absolute than freedom of speech and the press. There are times when speech may be stilled; when presses may be stopped. When religion becomes ideology or, worse, an anti-social movement of civil mayhem, it must lose the protection the Framers so lovingly conferred on that institution they held most dear. There is, after all, no prohibition against discrimination on the basis of political views. Charles Willis Manson devised a religion of sorts for his followers and got them to follow his murderous orders on the basis that, as he put it: “Charles’ will is man’s son.” Is our society constitutionally bound to tolerate the practice of that religion? What about Jim Jones’ religion? The answer is an emphatic “no.”
That is why constitutional analysis now must account for the existence of political/social movements cast as religion by more carefully reviewing what religious exercises must be tolerated and which need not be. Free speech jurisprudence allows the prohibition or punishment of defamation, “fighting words” and the disclosure of state secrets, among other things. Current jurisprudence allows for the prohibition of the use of certain drugs in religious observances. Legislators must now courageously consider what conduct, irrespective of religious basis, can, and must, be prohibited, and courts must not shrink from sustaining such laws on the basis of a broad reading of the constitutional protection of the free exercise of religion.
No one should be forced to support someone whose views are so anathema to him as to constitute an assault on his very being. So, perhaps now is the time to revisit our prohibition against religious discrimination on an individual basis. If my apocryphal applicant had truly sought work at my firm, I could never, in good conscience, have extended an offer to him and I should not be made to suffer for that discrimination against ideas. Religion is not, as race or gender, an immutable characteristic. It is a body of ideas one voluntarily assumes. And certainly, we may, and should, make judgments about people on the basis of their ideas.
This issue, as we have seen in the current presidential race, has broader implications. There are those who refuse to vote for Mitt Romney because he is a Mormon. I frankly know nothing of Mormonism, but my experience with dozens of Mormon friends over the years has been that they are honest, hard-working people of great integrity and traditional values for the most part consistent with my own. But what if a candidate for office embraced a religion that endorsed the ideas I put in the mouth of my mythical applicant? What then?
It is not enough to assure us that his religion would not affect his conduct in office. We have already seen many examples of religion’s actually having done so. Former Gov. Mike Huckabee, by many accounts, freed dangerous convicts on the basis of his religious conviction of Christian redemption. President Bush has forbidden federal funding of stem cell research and the use of federal funds for abortion on the basis of his religious belief in the sanctity of life and the immorality of abortion. Public policy has been governed by the religious views of public officials from the very beginning of the republic.
Because religion is a choice and a non-immutable adoption of a body of ideas, the embracement of one is a voluntary act upon which we may properly judge. Because religious conviction is that we hold most deeply, for the most part, and more thoroughly informs our behavior than any other set of ideas, it certainly must be a guide for predicting the conduct of its adherents. It is altogether legitimate, therefore, for a voter to consider the religion of a candidate, among other characteristics, such as his political views. If the candidate’s religion embraces ideas the voter believes may result in official conduct of which he would disapprove, there is nothing illegitimate in discriminating against that candidate on the basis of his ideas, irrespective of whether or not they are religiously based. To do otherwise would be to ignore what is probably the greatest single factor governing the candidate’s conduct.
Anticipating that someone will protest that my view in this regard violates the “no religious test” prohibition in the Constitution, I point out only that that prohibition is against government discrimination, not individual discrimination. In voting, the choice is entirely that of the voter. And the voter’s greatest obligation is to vote his conscience.
John W. Howard practices business and commercial law in the state of California.
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