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GREG HARTON: Court guards religion as central to U.S. freedoms

by Greg Harton | July 12, 2020 at 1:00 a.m.

Growing up, I had heard about Al Capone, the high-profile, Chicago-based crime boss who violently capitalized on bootlegging during Prohibition.

When I became a reporter in Hot Springs, I became aware of a certain tourist-town pride that "Big Al" once owned a suite in the still-renowned Arlington Hotel. He enjoyed, without creating any criminal havoc, the horse races at Oaklawn and the town famous for its thermal baths and illegal gambling.

The 1987 film "The Untouchables" dramatized the federal pursuit of Capone, who controlled much of Chicago, its criminal world, law enforcement and politicians. It was then I finally realized Capone's reign was brought to an end not because he was found guilty of murder or extortion, but because he was convicted of a failure to pay taxes on the millions of dollars his illicit activities generated.

Capone may seem a strange introduction to a column about religious freedom. His story reflects how government doesn't always get what it wants by direct means but will often chip away at a goal -- if they can't get it directly, they'll look for a workaround that has the same effect.

The Supreme Court last week voted 7-2 to bar the federal government from using its powers to force employers with religious or moral objections to provide birth control insurance coverage under the Affordable Care Act, known by many as ObamaCare.

The court, again by a 7-2 vote, also allowed religious employers to fire people on grounds that, in non-religious businesses, might otherwise be viewed as discriminatory.

The decisions reflect a full appreciation for religious freedom so jealously guarded by the First Amendment to the U.S. Constitution, which says: "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof."

As simple as that sounds, constitutional interpretation is always complicated. There's no doubt some people have used religion as cover for behaviors they should not engage in. Televangelist Jim Bakker selling a "cure" for the coronavirus, for example, isn't an issue of faith.

Organizations that exist for religious worship and teaching by necessity employ people in achieving their missions. It is through this act of employment that some in government figure they might exert influence when the expression of religion conflicts with some matter of public policy.

For example, if the political leaders decide contraception is a proper thing, eroding religious convictions that stand contrary to that is an end that justifies the means. It's charging Al Capone with tax evasion when other efforts to land him in prison had failed.

Religious faith, though, has from the nation's founding been guarded as an essential freedom, one at the very foundation of the concept of liberty. The Supreme Court fortunately recognizes that constitutional protections of religion means guarding the expression of faith against governmental intrusion, even when a public policy argument can be made that an outcome achieves some desirable result.

The Supreme Court wisely steered clear of "judicial entanglement in religious issues."

Justice Samuel A. Alito Jr., writing for the majority in last week's case about teachers at church-run schools and claims of employment discrimination, wrote: "The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate."

Such cases prove frustrating for people who prefer public policy trumping religion, but the nation's founders knew, in adopting the First Amendment, of government's tendency to use its powers to erode matters of faith.

Greg Harton is editorial page editor for the Northwest Arkansas Democrat-Gazette. Contact him by email at [email protected] or on Twitter @NWAGreg.


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