FindLaw, Jan. 30, 2003 (Opinion)
By MARCI HAMILTON
They say you should never bring up religion or politics at a polite dinner party. Unfortunately, the United States has decided to combine both topics, and speak out loudly to the international community.
That’s a big mistake. We need to learn when to speak, when not to speak, and when to speak only softly and subtly on that most delicate of issues: religious liberty. Instead, we maintain an organization – the International Religious Freedom Commission (IRFC) – the very mandate of which is to continually criticize other countries on this topic.
Other countries are rightly annoyed at our judgmental condescension on religious liberty issues, as embodied and perpetuated by the IRFC. Accordingly, the IRFC has contributed to creating rifts with needed allies, including France.
It is crucial, now more than ever, for the U.S. to avoid being, or even appearing to be, the world’s imperialistic bully. It’s one thing to be a leader, but quite another to be the world’s judge and jury. Yet the meddling of the IRFC only strengthens the very image we are trying to avoid projecting.
The Genesis of the IRFC
Few seem to realize it, but President Clinton was one of the friendliest Presidents to religious interests in this nation’s history. Statutes, new executive branch positions, new foreign initiatives–you name it, he supported it, if it was desired by a religious constituency.
One element of his legacy was the establishment of the International Religious Freedom Commission. As a “Commission,” the IRFC technically cannot by itself speak for the United States, even though it was instituted by the government. Nevertheless, it has a pernicious influence. Continuing the Commission is folly now, in an era of difficult relations with other foreign powers. Surely the State Department, which issues its own annual report, is more than adequate to monitor human rights issues around the world.
The purpose of the IRFC was to judge the religious liberty standards of other countries in the world. It was tasked, for instance, with issuing an annual report detailing which countries were not living up to its standards. Not a subtle agenda, to be sure. The list has included both the usual suspects–China–and the not so usual–France. And this is where U.S. relations with France, its supposed ally, have been marred.
How the IRFC Fostered U.S./French Tension By Criticizing a Proposed Law
The IRFC accused France of religious oppression for merely proposing to distinguish “cults” or “sects” from mainstream religions. The root of the condemnation comes from the U.S.’s constitutional tenet that the government may not distinguish between mainstream, emerging, and fringe religions. Under our law, they are all equally religions for religious liberty purposes.
On two visits to France over the last year, I have heard French citizens, scholars, and public servants express their outrage at being judged by the United States on this point. The French shake their heads in disgust at our simultaneous hubris and ignorance. They do not view their government as a repressive regime, and in fact, it is not.
France has been struggling, as some States have here in the U.S., with the issue of how to regulate those religious groups that prey on children or the psychologically enfeebled through brainwashing. In the recent past, people have died in cults in France. It is a vexing issue of how to serve the needs of children and disabled adults without infringing religious liberty.
France originally toyed with an approach that appeared to be targeted at sects or cults in its title, though not its statutory language. This was the Picard proposal. Despite reference to it in the 2002 IRFC report, that approach was not made law. Instead, France opted to regulate according to the harm caused, rather than the identity of the perpetrator. In the U.S., under Employment Division v. Smith, such an approach would be perfectly constitutional.
The IRFC’s criticism of the French proposal was thus not only condescending and meddlesome, but inaccurate. A country should be judged on its laws, not its bills. That is because it should be permitted to experiment with approaches to hard social problems in the bill-drafting and debating stage – just as France did here. It is typical in the U.S., for example, to identify and address constitutional issues after a draft bill has been submitted, not before.
Another reason the U.S. should hold back from easy criticism of France is that we ourselves have learned, in the Catholic Church child abuse scandal, that religious liberty cannot go completely unchecked in the face of the requirements of secular law. If France, too, has learned this lesson, can we blame them?
In French lawsuits involving the Scientologists, millions of pages of evidence suddenly were missing, making it difficult for prosecutors to go forward. France investigated, and considered the Scientologists themselves as possible suspects. It had every right to do so, for it has every right to do what it can to protect its prosecutorial system from infiltration intended to undermine successful prosecutions.
We Need to Look At the Big Picture When It Comes to Protecting Human Rights
Before casting the first stone, the United States must become more savvy about the actual similarities and differences between constitutional protections for religious liberty here and abroad. Despite the offensive rant of the IRFC, as it turns out, religious liberty guarantees in France and the United States are quite similar.
In both countries, generally applicable, neutral laws may be applied to religious groups. In both countries, religious discrimination is illegal.
Moreover, when one considers the full range of human rights, Europe appears to be ahead of the United States in some ways. For instance, it is unthinkable in France and Germany to sacrifice a child’s health or well-being simply because the adult involved is religious.
When I have explained to European audiences the fact that many states in the United States have exemptions from neglect laws for faith-healing parents — exemptions that permit them to avoid medical care for their children’s easily treated ailments unless the child is near death or permanent disability – there is uniform shock. (In all fairness, I have seen the same shock on the faces of U.S. citizens who had no idea such a regime existed.) In Europe, religious liberty defenses for medical neglect or abuse simply are not part of the calculus.
Recently, a Philadelphia boy from a faith-healing family died due to a broken ankle. The authorities had told the parents to get medical care, but apparently the instruction came too late. In Europe, this probably would not have happened. The case thus reminded me of the cruelty the U.S.’s “religious liberty” regime can inflict. The authorities should have ensured that the boy was taken to the hospital immediately after the injury, not days later – and if the parents protested, the authorities should have taken custody for the purpose of medical care and preventing his death.
The U.S. Can No Longer Claim Not To Have Established Religion
What about the Constitution’s ban on the establishment of religion, and its separation of church and state? Can we ask other countries to toe the “no state religion” line? Not without hypocrisy, I am afraid.
Lately, church and state have become perilously close here, as far as funding is concerned – with HUD even announcing a new initiative to fund religious buildings.
With measures like these, are we really so far from Germany and France on the establishment spectrum? In France, the government pays for the costs of religious pre-1905 buildings owned by mainstream religions. (Cultural associations have their buildings paid by the government as well.) In Germany, “tithes” are collected by the government and distributed to the churches.
The German system is subject to reasonable criticism – it has discouraged private, voluntary giving, and has perhaps unfairly ensnared some like Steffi Graf, who allegedly sought to reduce her tax load by declaring she was no longer a member of a church. But it is not subject to criticism on the basis that Germany should follow our example and decline to fund religion. The fact is: We do it, too.
There was a time when we could have made this argument, because money flowing to U.S. churches came from voluntary giving rather than government coffers. But given the Bush Administration’s deeply misguided push for “faith-based initiatives,” that era may be over. Once government money starts flowing, stemming the tide is nigh to impossible.
In the U.S., federal funds are now flowing to religious missions, from drug to work counseling. They are also earmarked for the nonreligious portions of religious buildings – a distinction that raises ridiculous definitional questions such as whether a soup kitchen is a religious enterprise, or whether a bathroom is actually part of a church or not if it’s located within it.
Why the IRFC Is Doing More Harm Than Good In the Current World Situation
In sum, we are not in much of a position to judge allies such as France and Germany when it comes to religious liberty issues. That we do it anyway, through the IRFC, is a major mistake. Not only are our judgments often unwarranted, they are also actively harmful to the U.S.’s status with crucial war on terrorism allies.
The United States would be better situated at home and on the world stage were it to forego the judgments of the IRFC, and instead look within its own borders to ensure liberty. Comparing our system to others’ is a worthwhile enterprise, but not for the purpose of issuing harsh judgments of fellow democracies. Instead, the goal of such comparisons should be for us to learn about the liberty, or lack thereof, within the United States’ own borders.
Marci Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law. Her email address is email@example.com. Her other columns on religious liberty issues can be found in the archive of her columns on this site.
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