Religion & American Law

The Mormon Church has recently come under fire by Jewish activists and Holocaust Survivor advocacy groups for violating the 1995 agreement promising to halt the proxy baptisms of deceased Jewish Holocaust victims and remove their names from the Church’s genealogical records. Despite the enormous public relations effort of the recent I’m a Mormon campaign aimed at presenting a more diverse and more mainstream image, the Mormon Church suffered a setback last week as reports surfaced that the Church had performed proxy baptisms for the deceased parents of famed Nazi hunter Simon Wiesenthal. Jewish leaders and activists, including Elie Wiesel, have called upon the Mormon leadership to condemn the baptisms and publically recommit to honoring the 1995 agreement.

Proxy baptism, also known as baptism for the dead, is a religious ritual of the Mormon Church that has been a tenet of the faith since its earliest days, when it was introduced by Joseph Smith. While considered a mysterious and peculiar concept by many non-Mormons, proxy baptism serves an important theological function in a Church that sees itself as the instrument of a universal message of salvation. According to Dan Gilgoff, CNN.com’s Religion Editor, proxy baptisms are carried out in the Mormon Church as a way to ensure that those who do not get a chance to hear the message of Jesus Christ in this life can choose salvation in the next life. Church members are encouraged to participate in proxy baptisms and contribute names of deceased relatives to the Church’s genealogical registry. As Gilgoff notes, while it is difficult to precisely calculate the number of proxy baptisms that have been performed in the Church’s history, experts estimate that millions of deceased persons have been baptized posthumously.

Critics of the practice argue that proxy baptisms are disrespectful to the deceased person and his or her family, especially when the baptism takes place without the permission of the family, as was the case for the Wiesenthal family. Mormon leadership encourages members to offer only names of deceased relatives in order to curb the frequency of proxy baptisms performed without familial consent. For Jewish families, the concern goes much deeper, as many worry that proxy baptism threatens the historical recognition of the Jewish identity of the deceased by future generations.

Some Jewish leaders have expressed concern that the 1995 agreement holds no promise that the Mormon Church will actually desist in performing proxy baptisms on Jewish Holocaust victims. If the 1995 pact is deemed insufficient, it is possible that Jewish advocacy groups may turn to the law, specifically First Amendment protections, as a way to prevent the continued proxy baptism of deceased Jews. I believe that the Jewish community can make a case for a legally-binding injunction prohibiting the proxy baptism of deceased Jewish persons on the grounds that the proxy baptisms represent an infringement on the Jewish communities free exercise of religion in maintaining their particular religious beliefs on burial and proper treatment of the deceased. As Wiesel states in an interview with CNN, Jewish religious custom demands that the deceased person is not to be disturbed, a prohibition with could conceivably be extended to the memory of the deceased and not just the physical body. If the Jewish community could successfully argue this point, there might be legal standing to argue that the Mormon religious ritual of proxy baptism is directly infringing on Jewish burial customs.

A legal battle could be an interesting test case for seeing how the courts would rule when there are two competing and legitimate arguments for free exercise of religion. If, as the courts did in Reynolds v. United States (1878), the free exercise of religion is deemed to extend only to belief and not to actions, the courts could rule that, while the Mormon Church has the right to believe in the necessity of performing proxy baptisms for all persons regardless of religious affiliation, the Church might find itself being legally prohibited from actually performing proxy baptisms on deceased Jewish persons.

This issue raises serious questions about the viability of ensuring the free exercise of religion in a radically pluralistic society such as the United States. In my opinion, allowing for the prohibition of the practice of a deeply held religious belief constitutes a serious legal redefinition of what it means to be religious and severely restricts religious expression to the private and internal. As we have seen in the aftermath of the Reynolds case, prohibiting the practice often results in a change or loss of the associated belief. Yet, I think that religious communities that want to be full participants in American society should take a proactive stance in at least attempting to ensure that their religious practices are not insensitive or coercive towards others, rather than waiting for a legal ruling to force their acquiescence and compliance. It is unfortunate and disappointing that a religious tradition can feel justified in willfully engaging in a practice that is disrespectful to another group, as is the case in Synder v. Phelps (2011), when the Supreme Court ruled that the religiously-motivated picketing of funerals by Westboro Baptist Church is a constitutionally protected form of free speech even thought it caused significant emotional trauma for the families of the deceased. It is my opinion that, while there might be a guarantee to freedom of speech or exercise of religion, this does not mean the religious community in question should feel morally justified in engaging in that constitutionally protected behavior. I believe it imperative that the Mormon Church take significant steps to ensure that the event in question never again occurs and work to strengthen its relationship with Jewish communities forged in mutual respect and understanding.

If you have been keeping up with the news, there has been an uproar regarding President Obama and his new healthcare plan, more specifically the matter of contraceptives. Under President Obama’s healthcare laws, all employers are required to provide employees with preventive health coverage, including a range of birth control, which will come at no cost to the employee. As a result of this decision, as stated in this article, Obama has received much objection from the conservative Republicans and the Catholic bishops. The Catholic bishops feel as though they are forced to endorse a policy which is in violation of their moral opinions and teachings. In spite of urging from the Catholic Church and Conservative Republicans, President Obama has made his decision and opted not to broaden the exemption.
In conjunction with this, on Friday, in hopes of squelching the opposition, Obama has come up with a compromise that allows for an employer who morally objects to contraception to opt out and instead inform its female employees where they can get coverage outside of the employee health plan. Although the compromise does broaden the conscience clause to exempt any organization who opposes birth control based on religious beliefs, the Catholic bishops have already rejected the alternative because they don't even want women to be referred to places that would provide them with contraception. “The Catholic bishops have called the new health coverage rule "an attack on religious freedom" and argue that all employers who object to contraception -- not just faith-based organizations -- should be exempt from having to provide it to their employees.”
Here we have another classic case of an organization trying to have their values/beliefs imposed on people through government injunction. These churches want the government to keep their noses out of their belief systems, but they have no problem accepting the benefits that the government provides, from police protection to street repair to outright public funding of their "secular" works via the Faith Based grants. And what are they asked to do in return for all of these tax-free benefits and funding? Obey the law. The entire relationship between the tax-payers’ dollars and the church institutions needs to be re-evaluated. Why should tax payers be forced to fund an institution that will not follow the law when operating a business that serves the public like a hospital or university? Why shouldn’t a Catholic hospital be required to provide essential health services? Contraception is not merely used for birth control, it’s also used for a great deal of other health purposes, not to mention decreasing unintended pregnancies, which serves to reduce the number of abortions. A hospital is required to serve any person who needs medical care, not just those who agree with a particular religious belief system, i.e. the Catholic Church. Perhaps the bishops should get out of the health care business if they aren't willing to actually provide medical services.
In this way, any right of action based on belief cannot be absolute. Therefore, the right to practice a religion cannot mean that any individual or organization should be allowed to do whatever they want and justify it as their "sincere religious belief". There is nothing automatically sacred about action based on religious beliefs, no matter how sincere. It is clear in the Constitution that religious laws of God are separate from the Laws of Man. And that freedom to worship is on parity with the freedom not to.