Pluralism, Politics And God

Protecting Freedom While Avoiding Harm

After my freshman year in college, I took a memorable bus trip from Bethle­hem, Pa., to Mon­­treal to visit the l967 World’s Fair. A friend and I stayed in a motel that seemed to be constructed out of wood only slightly stronger than corrugated cardboard and arguably less stable than the balsa wood used in toy gliders. It was, to say the least, an interesting trip.

Recently, I had a chance to return to Montreal. I spoke at an international conference on “Pluralism, Politics and God” at McGill University. I can report that the trip by plane probably took less time than the bus (but not by much), and the Hotel Le Cantlie Suites has strong walls.

My specific panel, one of a few open to the public as well as conferees, focused on “Rights, Religion, and the State,” and one of the questions the four panelists was asked to discuss was, “How can we determine the scope of religious freedom when it appears to clash with other rights?” 

Indeed, this is becoming an increasingly complex issue in both the United States and Canada. More and more people, with differing religious backgrounds, are boldly asserting the right to avoid doing something they disagree with on theological grounds, regardless of its effects on third parties.

An increasingly familiar scenario here is the local druggist who refuses to dispense birth control pills duly prescribed by a doctor, arguing that he has a religious freedom right not to do so. Only Washington state affirmatively insists that pharmacists, as state licensees, fill all lawful prescriptions.  In other states, legislatures and courts have been struggling with drawing the right line between the claim of “conscience” and the claim to obtain a product or service which is legal and necessary.

Some members of Congress are pushing legislation called the “Workplace Religious Freedom Act.” Religious Right-connected members want this legislation to be as sweeping as possible.  Frankly, for me, this should be resolved in favor of the patient in almost any conceivable circumstance.

For example, telling a woman to just go to another pharmacy creates some practical problems. In our brilliantly engineered health care system, that second pharmacy may have no records of other prescriptions used by the patient that could warrant caution in dispensing the new one, or might not even accept as payment the form of private insurance the patient has. (And in a small town, there may not even be another pharmacy.)

Moreover, if pharmacists have a “conscience” right to refuse to dispense a particular medication, what’s to stop them for asserting the same right to even refer to a second pharmacy? Taking things a step further, what about the right of a cashier not to ring up a filled prescription which he or she thinks may be used for immoral purposes?

A law professor advocating that broad federal approach told me on my “Culture Shocks” radio show recently that he thinks it appropriate to guarantee that a taxi driver would not have to drive a woman to a Planned Parenthood clinic if he thought she would obtain a service that offends the driver’s faith.

Claims made under our own Free Exercise Clause seem best tested under a standard that my fellow panelist Pro­fessor Marci Hamilton, author of God and the Gavel and a Fellow in the Law and Public Affairs program at Princeton, calls the “harm principle.” She told the audience that this precept is “at the very core of Western legal thinking, particularly criminal and tort law and is the most defensible calculus for gauging legislative accommodation.”

In her view, the appropriate place to determine the severity of any claimed harm is in legislatures, not courts. My long experience in Washington watching Congress make laws (sometimes without any hearings or evidence gathering at all) makes me reluctant to concur with her on what should be the venue of choice for such decisions.

Whatever entity makes those choices, though, a rational look at harms alleged must be preferable to any governmental determination of the sincerity or intensity of the asserted “free exercise” or “conscience” claim.

Look at some other recent controversies in the news. Should Muslim cabdrivers be able to refuse service to passengers who are carrying unopened bottles of alcohol because the drivers’ Islamic beliefs do not permit them to drink alcohol? If the cab line is long, the traveler – no matter how weary – can just get in the next cab driven by someone with no objection. If the wait for a cab is as long as the 20 minutes between taxis I had recently at a small West Coast airport, the disruption to the traveler may outweigh the attenuated connection between a no-drinking morality and the simple carrying of a bottle of scotch in a paper bag.

I believe that the American principle of “free exercise” must include more than simply allowing people to believe what they want and make decisions about purely internal governance, the shape of sanctuary windows or whom to hire as a rabbi or priest.  However, if we do not take seriously the “harm” principle, we can end up with a never-ending set of conscientious objection claims by workers to avoid any part of their job they, even honestly, feel is incompatible with a religiously based moral teaching.

That would be chaotic.

Barry W. Lynn is executive director of Americans United for Separation of Church and State.