Wednesday, January 21, 2015

Je suis Charlie, Je suis Abdul Muhammad, Je suis Hobby Lobby

by Libby Sternberg

The US Supreme Court ruled yesterday, in Holt v Hobbs, that Abdul Muhammad, a prisoner in Arkansas, can grow a beard according to his Muslim religion's dictates. Does that decision make you uncomfortable, given that men and women who adhere to Mr. Muhammad's faith have been involved in massacring others who don't share their beliefs?

If so, welcome to the uncomfortable world of religious freedom and freedom of expression.

This is what religious freedom and freedom of expression really mean: letting people act on their beliefs when their actions don't trigger a compelling state interest to intercede. Religious freedom, in particular, can be summed up in this phrase: the right to be wrong (the apt title of a book on First Amendment rights by Kevin Seamus Hasson, founder of the Becket Fund for Religious Liberty). 

Freedom of expression means the cartoonists at the satiric publication Charlie Hebdo should have the right to mock Muslims, Jews, Christians and all peoples of faith, no matter how wrongly offensive their drawings are. 

Free exercise of religion means that Arkansas prisoner Abdul Muhammad has the right to grow a beard in accordance with his faith, no matter how wrong the authorities think he is, nor how angry we are at those who share his faith and use it to slaughter innocents.

And, yes, it also means that the Greens, the devout owners of the Hobby Lobby craft stores, have the right to exclude what they believe to be abortifacients from the health care they offer employees, even if many liberals, including Supreme Court Justice Ruth Bader Ginsburg, think they are egregiously wrong-minded.

Let me repeat: We all have the right…to be wrong. And the only time the state, in the form of any government, should infringe upon that right is when it has a compelling interest to do so. A compelling interest.

Why bring this up now? First, because some who celebrate and agree with the Abdul Muhammad decision wailed over the Hobby Lobby one. And some who are eager to utter Je suis Charlie to stand with free artistic expression against Islamic extremism balk at agreeing with the Holt v Hobbs ruling or the Burwell v Hobby Lobby one. 

Such was the case, in fact, with Justice Ginsburg. She voted with the unanimous court in the Abdul Muhammad opinion that said Muhammad, an Arkansas prisoner, had a right to grow a beard in accordance with his Muslim faith, despite the prison's rule against beards more than 1/4 inch in length. The state had no compelling interest in enforcing that rule. 

Ginsburg, perhaps realizing the potentially contradictory ground she was headed into, penned a one-paragraph concurrence that said, in essence, that Holt v Hobbs was different from Burwell v Hobby Lobby because Muhammad's actions "would not detrimentally affect others" who don't share his beliefs. (It's on p. 20 of the opinion.)

But in the Hobby Lobby case, the owners' actions didn't "detrimentally" affect others, either. The Green family, as has been pointed out numerous times, wasn't forbidding employees from using abortifacients. The family simply wasn't going to pay for them. The state had no compelling interest in forcing the Greens to go against their faith -- not when employees still had other contraceptives covered and could easily access the uncovered ones elsewhere (or the government, if it felt the need for these items so compelling, could have provided them, rather than forcing the Greens to do so).

Justice Ginsburg, though, faced the problem that many people face when thinking of protections of religion and free expression rights. She had to confront her own biases, her own dislikes and discomforts.

I'll be honest about mine, at least. I probably would have looked for ways to justify the beard ban in the Holt v Hobbs case because I would have wondered if Mr Muhammad was truly a devout practitioner of faith or merely a cynical prisoner trying to stick his finger in the eye of the system. I would have been troubled by the idea of giving aid and comfort to a man espousing a religion which has been used to justify massacres and terror. 

But that speculation and discomfort doesn't trump religious freedom. He has the right to be cynical or devout, the right to embrace a religion I find troubling because of how it's been used. The right to be wrong.

You can't pick and choose favorites when ensuring that right is protected. You can't embrace freedom for folks whose ideas you embrace, yet want to take it away from others when you disagree with the faith in question.

Je suis Charlie. 
Je suis Abdul Muhammad.
Je suis Hobby Lobby.

Cringe, if you must, when saying any one of those. But they all embrace something we should recognize as a fundamental right, to be proclaimed proudly, vigorously and often: the right to religious freedom, the right, sometimes, to be wrong.