The current dispute over whether religious institutions should be forced, against their tenets, to provide free contraception to their employees as part of employee health insurance, is an occasion to consider the state of freedom of religion in the U.S., where it is trending, and where it should trend.
I believe the founders were very wise to guarantee freedom of religion, but I am afraid, that in this occasion, they did not fully consider the role religion might play in the lives of citizens in the future.
For most people in the late 18th century, religion was inextricably intertwined with conscience. Peoples' morals were religiously informed, atheists were very rare, and even those that existed had their morality defined by the culture in which they lived, which in turn was religiously informed: people looked to religion to answer questions of morality and conscience and in the 18th century U.S., that meant Protestant Christianity.
Fast-forward 225 years. Though much of the U.S. population still states when asked that it "believes in God," for many of these people, religion does not play a prominent role in their lives. They rarely attend church, don't study the Bible and make no particular efforts to adhere to the tenets of their religion beyond vaguely "being a good person." The level of ethical education of the average U.S. citizen is, in my opinion, appallingly low. Most of their ethics, such as they are, are culturally informed: they emulate parents, teachers, friends, and increasingly, people they see in the entertainment media.
Furthermore, the number of atheists, agnostics and practitioners of alternate religions with quite recent pedigrees (or no hard, traceable pedigrees at all), has exploded. These peoples' ethics are not informed by any traditional religious system. Yet, these people still have ethics, which deserve to be treated with as much respect and deference as those of religious people.
Yet, that is not the case in the U.S. today. A very narrow reading of the first amendment freedom of religion clause is harming both the religious and the non-religious (or non-traditionally religious). The current interpretation first attempts to establish whether some system qualifies as a religion before deciding how government will interact with it. The problem is that any traditional definition of religion on one hand leaves those with no religion completely unprotected when it comes to matters of freedom of conscience, and on the other hand, excludes traditional religious systems from active government support while allowing non-religious ethical systems free reign to attempt to impose their values via government power.
To illustrate the imbalance, consider the Amish. As many know, the Amish are not required to pay social security taxes. This was an issue of serious contention for many years and was addressed most finally and recently in the Medicare Act of 1965: " "Tucked into the 138 page bill was a clause exempting the Old Order Amish, and any other religious sect who conscientiously objected to insurance, from paying Social Security payments, providing that sect had been in existence since December 31, 1950. After Senate approval in July, the signing of the bill by President Lyndon B. Johnson on August 13, 1965, made it official and canceled tax accounts of some 15,000 Amish people amounting to nearly $250,000." -- Wayne Fisher, The Amish in Court.
Think about that for a moment. The government has acknowledged that people should have an exemption from social security taxes due to freedom of conscience, but only for those who can demonstrate a religious tradition that dates back before December 31, 1950. What's special about that date? And what about people who adhere to no religion? Are their consciences less important? Are newer religions less capable of ethically informing their members than old religions? Isn't this a violation of equal protection under the law? See how this grants an advantage to the traditionally religious at the expense of the irreligious? That would, by any normal interpretation, be exactly the opposite of what is meant by "Congress shall make no law respecting an establishment of religion..."
Here, a law has been made "respecting" (in the sense of "with regard to") that respects (in the sense of "treating with deference") certain religions and regards their ethical standards as more important than those who have no religion or who practice newer religions.
I believe this situation has arisen because we are practicing "freedom of religion" when what we need to practice is "freedom of conscience."
If an atheist libertarian decides that his conscience calls him to remove himself from participation in the social security program, then I can see no reason why his conscience should be regarded as less important than that of an Amish man. Of course, the government is exceedingly afraid of this line of reasoning, because it seriously limits the power of the government to coerce its citizens and violate their consciences. What would happen to the social security system if they suddenly started allowing blanket exemptions for conscientious objectors, not only to the Amish, but to anyone who wanted one; with the proviso, of course that objectors would also receive no benefits from the program? Would it collapse? The government is terrified to find out, so it forces compliance.
But, one might ask, if a program is so grossly unpopular that not enough citizens to maintain it would participate of their own free will, why is it the law of the land?
Our system is supposed to rest upon the consent of the governed, but the system gives us no meaningful way, in its current form, to revoke consent. Our government violates the consciences of millions of its citizens in thousands of ways every day.
Am I proposing that people could simply start refusing to pay their taxes with no consequences? That is not my intention. There are many services and obligations that a citizen of any organized society can not escape:
- The obligation to obey criminal and civil law: no society could function if people could simply say things like "In my ethical system, it's perfectly fine to knock people over the head and take their wallets."
- Obligations to support services that are roughly equally utilized by all: Road maintenance, police, fire and emergency services are the common examples of this.
And it's that last that, I think, really directs my thinking. Equal protection. It was, until fairly recently, an accepted proposition that both taxes and government services be levied and apportioned equally to all.
However, under our current system, that has been thrown almost completely out the window. There's no way to assert that various subsidies, tax breaks and exemptions affect us all equally. The end-goal may mean a better economy for everyone, but that doesn't justify the grossly unequal means of the government expropriating money from one group (taxpayers) to award to other favored groups (certain businesses, certain farmers, individuals who meet certain criteria). When the government awards money to Business A, that money no only had to be taken from individual taxpayers who now have less money to support themselves and spend as they wish, it also harms Business A's competitor, Business B, who does not have the boon of millions of dollars in financial windfall to help it compete against Business A.
When the power of government is not being applied equally, when the government is picking winners and losers, it's no wonder that the losers object. We've come so very, very far from the concept of levying taxes equally on all to be spent for the common good that many citizens of today have come to accept it as the status quo and, in fact rent-seeking and lobbying has become the accepted way of relating to the government.
People complain about the influence of money on elections, but elections are only worth a lot of money to individuals, business and other organizations because government has evolved (devolved?) to have so much power over the citizens that it is in their financial best interest to spend vast sums of money to attempt to influence it.
I imagine a world where power is back in the hands of the individual. Where individuals and corporations do not feel the need to spend heavily on elections because the government does not have a potentially ruinous amount of influence over their lives and livelihoods. A good step toward that would be to allow citizens freedom of conscience to opt out of any scheme where the government will be picking winners and losers.
What right does the government have to decide that Solyndra will be a better steward of my dollar than I will? None. What right does the government have to say that it is a better planner for my retirement or my health care than I am? None.
