KENNEDY: First Amendment isn’t without limits

August 22, 2015

Sheila Suess KennedySometimes it seems as if Americans can’t agree on anything.

Climate change? What do scientists know? And besides, it snowed last winter.

Last March, in Indiana, opponents saw the Religious Freedom Restoration Act as a threat to equal civil rights. Defenders insisted that the measure was all about protecting religious liberty.

Americans believe—devoutly (pun intended)—in religious liberty. We just don’t agree about what it means.

Recently, economist Robert Reich made a point that contemporary culture warriors on both sides of the divide too often overlook:

Republican presidential hopeful (and former Hewlett-Packard CEO) Carly Fiorina says parents should have the option not to vaccinate their children before sending them to public school, explaining vaccines should be a matter of personal and religious freedom.

This has become the standard Republican line: The freedom not to be vaccinated is superior to the social responsibility to vaccinate in order to prevent the transmission of diseases. (Fiorina’s comments come a year after an unusual polio-like illness was seen in dozens of children in her home state of California.) Taken to its logical conclusion, Fiorina and other Republicans would give people the option of not stopping at red lights if they are personally or religiously opposed to them.

Before you dismiss Reich’s analogy as silly, think about it for a moment.

The First Amendment protects our right to believe as we see fit, free of government interference. It also protects our right to act on those beliefs, to live a life that is consistent with our deepest commitments. Up to a point.

When acting on our religious convictions requires us to violate what lawyers call “laws of general application,” government can step in and say “sorry.” I may sincerely believe that my desperately ill child should be kept away from doctors and hospitals, but courts have uniformly held that government’s duty to protect her trumps my sincere faith in the superior power of prayer.

When men cite the Bible as justification for abusing their wives or children, police officers don’t shrug and refrain from interfering because they were acting on sincerely held religious beliefs.

Reich’s traffic signal is a symbol of what we might call “the rules of the road”—the rules that make it possible for different people, with different world views and faith commitments, to live together in reasonable harmony.

It is always fair to question the need for a traffic signal. In a country that believes in individual rights—a country that respects each person’s right to believe as he or she sees fit—we can and should question the need for rules that seem unnecessary or unfair. But it is impossible to maintain the social order that benefits us all without laws that regulate our public behaviors and recognize our equal rights as citizens.

We are free to believe whatever we want, but we aren’t free to engage in public behaviors that harm others.

Religious liberty does not and cannot mean that people get to do whatever they “sincerely believe” they should do, no matter how adversely it affects the larger community. It does mean that lawmakers must be sensitive to the diversity of beliefs when they are crafting the rules of the road; when political philosophers talk about limited government, they mean limiting the reach of law to what is required for social order and the common good.

We can argue whether our social “traffic” requires a particular signal, but when the light turns red, we don’t get to run it.•


Kennedy is a professor of law and public policy at the School of Public and Environmental Affairs at IUPUI. She blogs regularly at www.sheilakennedy.net. She can be reached at skennedy@ibj.com. Send comments on this column to ibjedit@ibj.com.


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