Thursday, May 19, 2005

The Secular Use of Religion

This CNN article piqued my curiosity about an interesting church/state question.
If she runs away from her life of prostitution, her parents will become sick and die.

At least that's what this Nigerian woman believes. The threatened curse, she claims, was part of a voodoo rite performed in her homeland just weeks before she was brought to Greece by a prostitution ring.
Maria's case illustrates one of the least understood corners of the sex slavery underworld: gangs using the perceived potency of native West African voodoo and hexes to hold women in their grip. Recently, however, an unusual alliance has started fighting back.

One of Nigeria's new anti-prostitution inspectors is turning to Christian-affiliated groups to confront a system that -- even by conservative estimates -- may hold sway over at least 10,000 Nigerian women forced to work as prostitutes in Western Europe.

"We cannot fight this by police work alone," said Muhammad Babandede, the chief investigator for a Nigerian task force against human trafficking. "We need the faith groups on our side."

Would this sort of activity, if done in America (assume the same sort of condition, the women will not leave because they fear the curses), be constitutional under current (or any) 1st amendment jurisprudence? Or, in the more generic formulation: Can the government use explicitly religious institutions in an explicitly religious manner to further a legitimate secular end? How much does it matter if the government shows the religious aid is critical to its endeavors (for example, if it showed that it could not get these women out of sex slavery without enlisting some religious aid to assuage their fears of the curses)?

In Illinois ex rel. McCollum v. Board of Education, (333 U.S. 203 (1948)), the Court famously stated that "religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere." However, what does one do when that definitively is not the case? It probably isn't the concern of government if religion cannot do its job without governmental aid--the first amendment would still mandate their separation (though I think their are exceptions to this, for example, I think that a state can enforce fraud statutes to prevent meat from being falsely labeled and sold as "Kosher." See Commack Self-Service Kosher Meats Inc. v. Rubin 106 F. Supp. 2d 445 (E.D.N.Y. 2000); Ran-Dav's County Kosher Inc. v. State, 129 N.J. 141, 608 A.2d 1353 (1992), cert. denied, 507 U.S. 952 (1993); Barghout v. Bureau of Kosher Meat and Food Control, 66 F.3d 1337 (4th Cir. 1995); compare Hygrade Provision Co., Inc. et al. v. Sherman, 266 U.S. 497 (1925); National Foods, Inc. v. Rubin, 727 F. Supp. 104, 109 (S.D.N.Y. 1989)). However, it is an interesting question what happens in the reverse: when government cannot achieve its ends without religious support. In situations like Nigeria's, the McCollum model simply does not work, because it isn't true.

Okay, so let's think about this. In Larkin v. Grendel's Den (459 U.S. 116 (1982)), the Supreme Court struck down a Massachusetts law which allowed Church’s in the immediate vicinity to have veto power over liquor licenses. The delegation of that state power to a religious group was seen as an Establishment Clause violation. However, that case dealt with zoning law, an entity which government has long been able to manage without turning to religious groups for aid. The situation above deals with circumstances where the state cannot act without religious assistance. Thus, I think we can distinguish Larkin. The standard we might use to determine whether such an action would be legitimate might be something like "government can use religious groups in pursuit of legitimate and compelling secular ends if the use is narrowly tailored, the entanglement is minimized, and the governmental objective can only be achieved with the aide of the religious group." Pretty strict standard, but would probably allow the use of evangelical groups to help fight the sex traffickers.

But let's take another example: the much maligned MCPS sex-ed curriculum on homosexuality. To review, the most controversial part of the course was the portion where the county claimed that homosexuality did not necessarily violate Christian teachings and pointed to several denominations which were perfectly tolerant of it. For purpose of argument, let's assume a few things. First, that the state has a compelling interest in ending discrimination against homosexuals. Second (and again, this is just for purpose of argument), that the state can definitively show that certain church positions on homosexuality constitute an insurmountable barrier toward teaching tolerance; for example, that students are simply leaving class and ignoring the entire lesson on the grounds that it conflicts with the Bible, and that many of these students are harassing and bullying homosexual students.

Given those conditions, would the curriculum not pass muster under the aforementioned standard? It is in pursuit of a legitimate and compelling secular end. It is established in the record that counteracting homophobic religious sentiments is essential to achieving that end. And the entanglement with religion is as minimal as possible (restricting itself only to teachings on homosexuality). I think that it would, and this should give us pause when thinking about the issue.

There are some ways of making a distinction, but I don’t find them persuasive. One might say that the curriculum is making a denominational preference: it is saying that the Unitarian conception of homosexuality is "right" and the, say, Baptist conception is "wrong." First of all, this is no different than the state saying the "evangelical" conception of Voodoo is correct and the traffickers’ conception is wrong. However, even beyond that, the problem seems rather easy to avoid--all one would have to do is rewrite the curriculum so as to make students aware of the Unitarian position, rather than explicitly saying that it is theologically correct. One might then say that the school should teach both sides, for example stating that "Some groups, such as A and B, believe that homosexuality is immoral and incompatible with the Bible. Others, such as X and Y, believe that homosexuality is private and morally acceptable sexual orientation." This, too, fails when compared to the Voodoo example—the state certainly would not have to give equal time to Voodoo practitioners arguing that, indeed, the curses are real.

So, in addition to the above questions, I pose this one to the blogospheric world: assuming my prior stipulations (anti-discrimination is a compelling interest and religious teachings are posing a barrier), is there a way to uphold a Nigeria-like program while striking down the MCPS curriculum? Do we want to?

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