Freedom of Religion/Conflicts with other Rights/Federalism
How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?
In regards to gay marriage and religious freedom, two often interconnected topics, federalism is particularly apparent. Furthermore, many conservatives argue that states should be able to use religious rights in deciding whether or not gay marriage is legal. Robert A. Levy of the Cato Institute explains how technically, this position is legally valid, as “Clearly, federalism allows states to decide whether to recognize both same-sex and conventional marriages, or assign a different label, or privatize marriage altogether.” In this way, Levy emphasizes that due to federalism, depending on the region of the country, religious rights may be used to justify denying gay couples the ability to marry. Though, ultimately Levy questions the realistic strengths of federalism, asserting that the Constitution’s limits on discrimination outweigh the powers allocated to the states by federalism. Thus, according to Levy, federalism does not allow for states to exercise religious rights in a way that permits them to discriminate against LGBTQ+ individuals. Following this logic, federalism can be viewed to weaken the exercise of religious freedom. Additionally, states’ varying approaches to school prayer demonstrate how religious rights are subject to federalism. Although federal law prohibits prayer in public schools, upholding it to be a violation of the establishment clause, certain school districts have acted to protect school prayer. For example, nearly forty years after Engel v. Vitale and Abington School District v. Schempp, which struck down on school prayer, Santa Fe Independent School District v. Doe proved school prayer was still alive in certain states, as the case presented a situation of student-led prayer prior to high school football games. Demonstrated by Santa Fe, while federal law may prohibit school-mandated prayer, certain states may permit public school districts to contradict these laws with student lead prayer. Furthermore, depending on the state, the degree of secularism within public schools may differ. This emphasizes how federalism can bolster religious rights, as state’s rights may permit them to evoke certain religious practices misaligned with federal law. Lastly, state constitutions additionally demonstrate how federalism affects religious freedom. Noted by Christopher Hammons, numerous states invoke religion in their constitutions, asserting God to be “the foundation of order, liberty, and good government.” (226) The emphasis on god and direct religious references within certain state’s constitutions demonstrate how federalism, which provides states with specific liberties, allows for a varying image of religious freedom throughout the United States.
REFERENCES:
Christopher Hammons, State Constitutions, Religious Protection, and Federalism, 7 U. ST. THOMAS J.L. & PUB. POL'Y 226 (2013)
Robert A. Levy, Marriage equality: religious freedom, federalism, and judicial activism, SCOTUSblog (Aug. 15, 2011, 4:32 PM), https://www.scotusblog.com/2011/08/marriage-equality-religious-freedom-federalism-and-judicial-activism/