Mar 02 2014

The tentpoles of religious exemption

Published by at 9:04 am under Idaho,Idaho column

idaho RANDY
STAPILUS
 
Idaho

In 1874 George Reynolds, a secretary to Mormon President Brigham Young and husband to two wives, was charged with the crime of bigamy. The case didn’t come out of the blue: The LDS church (with Reynolds as volunteer) had sought it as a test.

Reynolds argued his marriages were constitutionally protected as his practice of his religion, since the LDS church then supported polygamy on religious grounds. The case went to the U.S. Supreme Court.
The 1879 decision in Reynolds v. United States didn’t deliver as hoped. The court drew on the writings of Thomas Jefferson, who argued that “religion is a matter which lies solely between man and his God … the legislative powers of the government reach actions only, and not opinions.”

The court closely followed his reasoning: “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband; would it be beyond the power of the civil government to prevent her carrying her belief into practice?”

So: How would the Idaho Legislature today answer those questions?

Freedom of religion has been at least the rhetorical premise for several pieces of legislation this year.
The best known, effectively killed for now on February 19 after initially working up steam toward passage, was House Bill 427, which would have barred government in Idaho from pulling or restricting a professional or occupational license for “Declining to provide or participate in providing any service that violates the person’s sincerely held religious beliefs or exercise of religion except where performing emergency response duties for public safety. ” Though the potential scope was broad, it was widely described as allowing professionals not to do business with gay people.

A bill cutting the other way didn’t even get a hearing.

Idaho law currently says “The practice of a parent or guardian who chooses for his child treatment by prayer or spiritual means alone shall not for that reason alone be construed to have violated the duty of care to such child.” Representative John Gannon proposed House Bill 458 to add: “However, this exemption shall not apply whenever a child’s medical condition has caused death or permanent disability.”

Gannon’s prompt was not hypothetical. The Oregon-based Followers of Christ church was a locus of infant and child mortality, including a number of cases deemed to be easily treatable by conventional medicine, and it eventually drew state legislative response. Church members were prosecuted in Oregon for failing to obtain medical treatment for their children. Since then, Oregon journalists found a remote Idaho graveyard where many of the children of the sect, denied medical treatment, are buried.

There’s also an excellent book (its 480 pages meticulously researched), “In the Name of God,” by Cameron Stauth, published last year by Thomas Dunne Books, on the subject. We are talking here about the life and preventable death of children who, according to the laws of Idaho and other states, aren’t old enough yet to make essential decisions for themselves.

The legislation specifically aimed at protecting them was swiftly attacked by legislators, and requests for even a hearing for it have been denied. The bill appears dead for this session.

Given that, are there any limits, according to the Idaho legislators, to what a person should be able to do under a claim of religious conscience? The 1879 U.S. Supreme Court said that of course polygamy and human sacrifice can be regulated and banned. Would be the 2014 Idaho Legislature agree?

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