More than a decade has passed since Justice Antonin Scalia wrote that his Supreme Court colleagues believed that religion, like pornography, was to "be indulged entirely in secret ... in the privacy of one's room." In the intervening years, the court seems to have taken Scalia's colorful analogy to heart, as religion decisions have taken on the same we-can't-define-it-but-we-know-it-when-we-see-it approach formulated by the high court in its obscenity cases. The court's refusal to provide guidance on what constitutes permissible religious expression has caused litigants and lower courts to recharacterize religious activities and expressions as secular conduct in misguided attempts to sidestep the tough constitutional questions.
Yesterday, a federal trial court in New York held a hearing in a case that illustrates this trend all too well. A nonprofit based in New York's Rockland County filed a lawsuit accusing a local village of violating federal law by refusing to permit the operation and maintenance of a "Shabbos house" adjacent to the area hospital. The purpose of this house is to provide lodging to Jews whose religious observance prohibits travel on their Sabbath, but who nevertheless need to visit their relatives in the hospital. The village has claimed that its zoning code does not permit uses such as the Shabbos house, which it described as a "transient motel" even though the house is closed six days a week and does not charge its Sabbath guests to stay there.
The village also contended that shutting the Shabbos house would not impose a significant burden on the religious practice of observant Jews since they could still visit their sick relatives on the other six days of the week, when travel is permitted. And the village also helpfully noted that there was a hotel a few miles up the highway where plaintiffs—who included a 75-year-old man who wished to be with his sick wife—could stay and walk to the hospital.
While many of the village's rationales for refusing to accommodate the religious needs of some citizens are at best questionable, what has really upset proponents of the Shabbos house is another of the village's arguments: Because all people of good will visit the sick, the Shabbos house does not qualify as a religious use entitled to federal protection. In other words, they contend, because the conduct compelled by the plaintiffs' religious beliefs is also prized by secular values, it cannot be protected by laws covering religious practice.
This glib dismissal is absurd. Of course there are good secular people who visit the sick. But such arguments overlook the fact that a religious mandate can account for conduct that might otherwise be motivated or explained by secular morality. Indeed, the Department of Justice filed suit against the village late last month, after determining that the village had not offered any sufficiently compelling justification for refusing to accommodate the Shabbos house.
The best that can be said for the village here is that they are simply following the lead of the courts. After all, the Supreme Court has permitted religious icons such as the Ten Commandments, a crèche, and an 18-foot menorah to be displayed on public facilities, so long as they are accompanied by some nonreligious items and the court divines that the purpose of the display is to pay tribute to secular history or engage in generally accepted holiday good cheer rather than to commemorate a religious tradition. The court's rationale is that when accompanied by a passel of nonreligious items, otherwise religious symbols are cleansed of religious significance. But just as a stone bearing the commandment that "Thou shalt have no other gods before me" is no less a declaration of religious belief because it stands next to a plaque with the phrase "We hold these truths to be self-evident," a religious mandate to visit the sick is not magically transformed into a secular value simply because an atheist may feel compelled to do the same.
The federal Circuit Court of Appeals in New York has employed a similarly constrained approach to religion by suggesting that a Jewish day school in Westchester County might not qualify for protection under a federal law proscribing zoning decisions that substantially burden religious practice. The school had challenged the refusal to approve its expansion plans, which included space for computer, music, and art classes. The court expressed doubt that the law's prohibitions could extend to any facilities that would be used for secular purposes. This was true even though the court acknowledged that the additional facilities might be necessary to attract students and "improve the students' overall educational experience."
In other words, the court believed the school's overall religious identity and mission was irrelevant under federal law just because religious schools also require facilities that would be used at a secular educational institution. The test now appears to be this: If the conduct is susceptible to any secular justification, it is not entitled to religious liberty protection.
That not only misapprehends the nature of religious practice, it is also inconsistent with an earlier decision of the Supreme Court striking down a modest program that provided aid for private school maintenance and repairs necessary to "ensure the health, welfare and safety" of students because it would "subsidize and advance the religious mission" of the schools. But it's not that far a leap from the appeals court decision declaring that a gym is a gym despite the school's religious mission to the village's attempt to negate the religious aspects of visiting the sick.
The insistence that religious conduct is essentially secular where it is consistent with any behavior that is also compelled by secular concerns might look like a convenient way to avoid determining the degree of religious expression or activity that government may tolerate. But it deprives both the court and the public of any principled way to reconcile the tensions in the Constitution. As Justice Scalia has observed, "[T]elling either nonbelievers or believers that the words 'under God' have no meaning contradicts what they know to be true," and "gives insufficient weight to the views of nonadherents and adherents alike."
The question of when government is accommodating religion and when it may be impermissibly preferring it is a difficult one, but it surely is not answered or honestly avoided by declaring that religious beliefs and secular conduct are the same.
Moreover, as the Shabbos house case suggests, a doctrinal approach to religion that looks to the ubiquity or secularization of a religious practice impacts minority religions or the extremely devout disproportionately, since their expression or conduct is less likely than mainstream religions to be consistent with secular practice.
To be fair, some of the blame for our dysfunctional religion jurisprudence rests with the framers of the First Amendment. While it is true, as former Chief Justice Burger pointed out, that the purpose of the religion clauses was "to state an objective, not write a statute," the twin mandates of permitting free exercise of religion while prohibiting its establishment by government are often on a collision course that puts the justices in the constitutional equivalent of swerving into oncoming traffic to avoid hitting a dog.
The struggle to separate and categorize those actions or beliefs stemming from religious conviction and those that might be explained by other means is hardly unique to the Supreme Court or government officials. For several centuries, philosophers have tried to identify the links between religion and morality and to determine whether the two can be unwoven. As MIT economist Jonathon Gruber has observed, "disentangling true effects of religiosity from other factors correlated with religiosity and outcomes is a daunting task." Gruber was referring to studies demonstrating a strong correlation between religiosity and charitable giving, but the same is no doubt true of visiting the sick or other conduct compelled by both secular morality and religion.
Given the difficulty and delicacy of the task, the impulse to sidestep the whole debate about the scope of religion in public life is understandable. But in recasting as secular those aspects of religious life that it deems acceptable, the Supreme Court hasn't avoided the need to draw a boundary, it has simply imposed one that disrespects and disregards both God and the Constitution.