Charlie Hebdo's True Goal

The Muslim terrorists who murdered the staff at Charlie Hebdo, the French satirical magazine, claimed to be retaliating for the magazine’s attacks on Islam and on Muhammad, its founding prophet. Islam was not Charlie Hebdo’s only religious target. Jews, Catholics, the Pope and even Jesus were often subjects of the publication’s cartoons.

The killings of Charlie Hebdo’s staff are horrific, both for the loss of life and for the shockingly appalling way they were carried out. And the “Je suis Charlie” (I am Charlie) phrase brought together the people of France, and indeed people around the world, in mourning, resolution and protest.

But, as David Brooks pointed out in his New York Times piece last week, most of us are not Charlie Hebdo. The satirical publication is widely hated in religious and political circles of all stripes. And before the murders, so few French people read it that it was in serious financial difficulties.

The publication launches rather sophomoric attacks on just about everything that some segment of western society holds dear. If you were not offended by something in one issue, wait for the next one. A recent sketch featured the Holy Trinity in an explicitly sexual ménage a trois, while another made fun of gay marriage. Many of its graphic covers could not be displayed on the magazine shelves of American shops.

But Islam and Catholicism were not Charlie Hebdo’s primary target, even when they were the cartoons’ subject matter. Jonathan Turley pointed out in his Jan. 8 New York Times essay that the French government, in recent years, has passed legislation that restricts the free speech of French citizens. Charlie Hebdo worked to push back against these new laws.

The new restrictions on speech gained ground in France after the worldwide protests (and deaths, both planned and accidental) over the Muhammad cartoons in 2006. France and other European nations passed a variety of laws restricting anti-religious speech, in part, out of a concern for public safety.

But since then, actress Bridget Bardot has been sentenced for criticizing gays and Muslims in a letter to the French president, while fashion designer John Galliano was convicted and fined for making anti-Semitic remarks in a café. The “speech police” have gone beyond public speech to monitoring semi-private and private speech here; whether or not you agree with these speakers’ views, this is an insidious development.

This situation reminds us of a truth that America’s founding fathers recognized: Namely, freedom of religion is linked to freedom of speech, even though speech can be for or against particular religions or religion in general. Our Constitution’s First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” The free exercise of speech and religion go hand in hand.

Of course, even in America, freedoms are not absolute. The rights of a single individual must be balanced against the rights of every other individual, as well as against the rights of various groups, including religious and ethnic groups, educational institutions, governments and so on. We usually refer to this opposition as the individual vs. society. The question is, where do you set the fulcrum to ensure the correct balance? This is the ongoing debate.

In western countries, where the Enlightenment has freed us, as Lincoln said in his Gettysburg Address, for government rule “of the people, by the people, for the people,” we put the fulcrum quite close to the individual side of the bar. To move the balance toward the society end of the scale, as France has done by protecting religious groups from criticism, not only removes freedom of speech about these groups, but freedom of speech within the nation as a whole.

If one group can be protected from criticism, then other groups can be protected (e.g., businesses, politicians, government). It becomes only a matter of legislative whim. The ability to deprive people of their freedom of speech thus strikes at the very heart of democracy and the French value of Liberté.

By its extreme satirization of religions, Charlie Hebdo worked to create a safe place for free speech, where average French citizens could discuss and debate without fear of arrest or accusation. It aimed to re-establish the fulcrum of free speech way over on the side favoring individual rights.

Unfettered Capitalism and the United States’ Marketplace of Religion

Our pilgrim forebears came to America in 1620 for freedom of religion. They sought the ability to worship and believe according to their conscience. They were Separatists who fled the England of King James I, who had restricted religious freedom for those who did not follow his religious ideals, whether Separatists, Puritans or Catholics. 

At first, the Pilgrims and others of similar Calvinist leanings emphasized their own ability to worship as they saw fit and did not accord others the same right. But Roger Williams’ focus on each individual’s right to their own “Soul Liberty” took a different view. His perspective was that the problem was not that the government (e.g., King James) favored the wrong theological view, but that government favored any theological view at all.

In the end, Williams’ idea became the foundation of the United States’ approach to the relationship between government and religious organizations. The main point is that there should not be a relationship; according to the First Amendment, government should pass no laws “respecting an establishment of religion, or prohibiting the free exercise thereof.”

The former phrase means that laws cannot give some religious group more rights than other groups, while the latter phrase indicates that laws cannot give some religious groups or individuals fewer rights than other religious groups. To the extent possible, government should pass no laws concerning religions.

While this principle has not been followed 100 percent, the United States probably has fewer laws about religion and less government involvement in regulating religious organizations than any other country.

This hands-off government approach has placed America’s religions in a free-for-all marketplace. Varieties of Christianity, Judaism, Islam, Hinduism, Paganism and many other religions jostle each other to find a niche or establish their place in the religious scene.

This religious marketplace is quite capitalist in character. Some religious organizations compete at the top of the marketplace. Like a company seeking higher sales, they work to attract more members. Like advertisers, they loudly broadcast their views for all to see. Whether they are a large organization, like the Catholic Church, or a small group, like the followers of the anti-gay Fred Phelps, they compete for media attention to get their word out.

Other religious organizations participate in the market by finding a quiet niche. They do not want a big public presence, but simply wish to practice their faith and be left alone. And, of course, there are many approaches in between.

Competition in this religious marketplace occurs in many forms, from blatant advertising on the sides of buses to announcing meeting times on the Saturday newspaper “church page.” There are parades, social outreach through missions and soup kitchens, sponsorship of Boy Scouts and, especially, the erection of prominent buildings. Churches and their steeples have dominated the skylines and central squares of towns and villages for centuries.

The capitalistic nature of this competition does not prevent different religious groups from using non-capitalistic means to gain an edge. Recently, the quest has been to allow religious groups or individuals to deprive others of their rights. In particular, the present social debate over freedom of religion is the claim that one person’s right to believe as they wish includes the right to deprive others of their rights.

This is the claim of the Hobby Lobby case presently before the Supreme Court and the goal of laws recently passed in Arizona (where it was vetoed) and in Mississippi that allow businesses to discriminate on the basis of belief.

The capitalist character of America’s religious marketplace, then, is so free and open that nothing prevents religious groups from using non-capitalist means to try to make it less free and less equal for some. Success in this quest will eventually make religious belief and practice less free for everyone.

Freedom of Religion and Gay Marriage

Poll results released Tuesday indicate that 50 percent of American citizens think that the United States’ Constitution guarantees gay couples the right to marry. The poll, conducted by the Washington Post and ABC News, shows that Americans are increasingly accepting the logic laid out by the Supreme Court in the June 26, 2013, decision ruling unconstitutional the ban on gay marriage found in the Defense of Marriage Act (DOMA).

Lower courts around the country, from Utah to Oklahoma to Virginia, also have adopted the Supreme Court’s logic. These courts have held that state bans on gay marriage and its recognition, like the federal ban, are unconstitutional.

These rulings have been based on the Equal Protection clause of the Constitution’s 14th Amendment. That amendment prevents states from passing laws treating some classes of citizens differently from others. The 14th Amendment holds that a state may not “deny to any person … the equal protection of the laws.” Its intent was to prevent Southern states from passing laws that deprived black citizens of rights, such as the right to own property or to enter into contracts.

There has been a lot of reaction to the Supreme Court’s striking down of DOMA, but it is interesting to note that nearly all of the negative reaction has been of a religious nature. Whether in public comments or in legal briefs, the arguments against allowing homosexual marriage have nearly all been based on appeals to religious scripture or religious theology. Protestant perspectives have largely been Bible-based, while remarks by Catholic Church officials have been based more on theology. (Note that many religious groups perform, permit or are in favor of gay marriage.)

The acute interest by different branches of Christianity in restricting marriage to one man and one woman raises the question of whether the government enforcement of heterosexual marriage violates the constitution. Do these state laws on marriage violate the First Amendment restriction against the establishment of religion?

The First Amendment says that laws cannot be made “respecting an establishment of religion, or prohibiting the free exercise thereof.” The argument could be made that laws prohibiting gay marriage violate a couple’s “free exercise” of religion.

To determine whether a law violates the freedom of religion clause, courts devised the Lemon Test. A law must pass all three components of it to be valid. First, does the law have a secular purpose? Second, is the primary effect either to advance religion or to inhibit religion? Third, does the law foster an excessive governmental entanglement with religion? If the study of a law results is a “no” to the first question or “yes” to the second or third, then that law is unconstitutional.

In the months since the Supreme Court’s ruling on DOMA, it has become more and more clear that the main arguments in favor of restricting marriage to heterosexual couples are religious ones. In that light, the present laws not only “entangle” the government in enforcing a religious belief; they also set up the government as the primary enforcer of a religious belief as the sole practice allowed.

This is clearly “excessive entanglement” and violates the third Lemon Test. We as a society may not have realized this before now, but the debate on the question of homosexual marriage since June 2013 has made it clear.

At this point in time, any Supreme Court ruling against gay marriage would violate the second standard of the Lemon Test. It would promote the religious standard for marriage over that of any other standard. This would violate the second of the Lemon Tests. It would constitute government advancement of religious interests.

So, even though marriage law originally was designed with a secular intent -- to have one standard for all marriages in the United States, whether religious or not -- it is now apparent that the standard that was set violates the constitutional guarantee of religious freedom.

Despite -- no, because of -- the strong support of churches and other religious institutions for permitting only heterosexual marriage, it is now clear in American society that the restrictions against gay marriage violate our guarantee of religious freedom.

Birth Control and Religions

It is a misnomer to say "women use birth control." Women and men use birth control. Pregnancy can only happen with the involvement of men and, so any steps taken to prevent pregnancy benefit both men and women. Sexual intimacy constitutes a key ingredient of marriage, and the ability to engage in it regularly benefits both partners.

Given the current state of medical practice, the burden and cost of long-term birth control usually falls on women, both financially and medically. Couples who choose to use birth control, as well as their existing families, profit in numerous ways from women shouldering this burden.

From this perspective, it is a benefit to women especially, but also to men, that birth control is included in the new medical insurance guidelines issued in August 2011. The guidelines identify coverage for basic medical procedures and drugs. This, at least, lifts the financial burden.

Unfortunately, the universal applicability of last August's guidelines impinged upon religious belief and practice. Although the guidelines did not require churches and other central religious institutions to provide this benefit in their insurance, they did require religiously sponsored institutions, such as hospitals and orphanages, to do so.

When the Catholic Church and other religious organizations protested, a compromise plan was put forward that allows religious institutions to avoid directly supporting birth control in the insurance, but provides that benefit to employees who desire it. Like many compromises, the new plan satisfies neither side. In this election year, access to contraception has now become a matter of political debate.

Accusations have been made that the contraception requirement violates First Amendment rights to freedom of religion. Others argue that lack of such a requirement violates the insured woman's Fifth Amendment rights to due process under the law.

The heat generated by these charges hides a more constitutionally significant problem. In previous First Amendment cases, a religious organization or individual is nearly always pitted against an outside entity. In this situation, the rights of a religious organization are pitted against the rights of religious individuals, even those of its own members.

To streamline the discussion, let's take the simplified scenario of a hospital owned and operated by the Catholic Church, where all its employees belong to the Catholic Church. Catholic doctrine deems birth control a sin (punishable by exclusion from communion). Since all the employees belong to the Church, one might think that it would be fine for the hospital to exclude birth control from its health plan.

But it turns out that Catholic parishioners do not agree with or even follow this doctrine. A recent survey indicates that 98 percent of Catholic women who have been sexually active have used birth control. That also means that approximately 98 percent of men married to these women have used birth control. While it is unclear from the survey what percentage of the entire Catholic laity that equals, Catholics are the only large religious group in the United States where the majority of members think that birth control should be included in health benefits.

If this disagreement went to court, it would turn out that the judge would be required to decide between a religious institution and the majority of its members. The court would be put in the position of either enforcing religious doctrine on recalcitrant members or declaring the freedom of religious people from having their rights violated by their own religion.

As the legal principles of the separation of church and state have been developed in our country, a key criterion is that the government should not become entangled in matters of religion. Having to decide between a religion's leaders and its followers certainly constitutes undue government entanglement. I can only say that we live interesting times.