The American Founders understood the importance of religion for human, social, and political flourishing. They were convinced religious freedom was necessary for the well-being of citizens, for the common good, and for public virtue without which they believed the new Republic would fail.
Until a few years ago, the vast majority of Americans supported the Founders’ understanding of religious liberty. Consider, for example, the Religious Freedom Restoration Act. During the 1990s it passed with overwhelming, bipartisan support in Congress and was signed by President Clinton. Americans would sometimes disagree over how to apply religious freedom in particular cases, but they generally understood it to be our first freedom. With the Founders, they believed it to be a building block for all other fundamental freedoms, indispensable to the common good, and a source of protection for everyone.
Here are some examples of how the administrative state, state government leaders, and the Supreme Court have been attacking religious liberty.
In July2020 the Supreme Court in a 5-4 ruling decided to not grant injunctive relief to churches in Nevada in light of the state’s arguably inconsistent Covid-19 guidelines. In doing so, the Supreme Court let stand what is wrong: churches are being treated differently than similar gatherings. Multiple justices in the minority wrote dissents, and those help us to see the issues in play.
Supreme Court Justice Neil Gorsuch explained in his dissent:
This is a simple case. Under the Governor’s edict, a 10-screen “multiplex” may host 500 moviegoers at any time. A casino, too, may cater to hundreds at once, with perhaps sick people huddled at craps table here and a similar number gather around every roulette wheel there. Large numbers and close quarters are fine in such places. But, churches, synagogues, and mosques are banned from admitting 50 worshipers—no matter how large the building, how distant the individuals, how many wear masks, no matter the precautions at all.
Thus, Nevada is treating places of worship differently then casinos and movie theaters in the state. This is bad enough but to have the Supreme Court deny an injunction against this practice is beyond belief. Christian leaders have said they would speak out if a state or the federal government crossed the line and treated churches differently then other gatherings in society. Gathering is a mark of what a church is. It is central to church life. Thus, we should all want to meet—to work toward it. And, when it is denied wrongly, we should grieve over its loss and take action
In April 2020, The Mayor of Louisville, Kentucky ordered the police to write down the license plate numbers of those who attended an Easter drive-in worship service The Mayor stated that the license information would be given to the city’s health department. People remained in their cars and were of the same household, therefore it is difficult to see how this is anything but a specific targeting of a Christian worship service. Fortunately, a US District Court Judge issued a restraining order that curtailed this practice as unconstitutional and as a violation of the First Amendment.
June 2015, in Obergefell v Hodges, the Supreme Court ruled in a 5-4 decision that the fundamental right to marry is guaranteed to same sex couples. In the oral arguments that led up that decision, Justice Samuel Alito asked President Obama’s Solicitor General whether recognition of same sex marriage would lead to stripping federal tax exemptions from religious institutions who oppose gay marriage, his response was “it certainly going to be an issue”.
The1964 Civil Rights Act’s banned discrimination in employment based on race, religion, national origin or sex. In June 2020, the Supreme Court ruled in a 6-3 decision that the definition of sex was to be expanded beyond male/female to include gays, lesbian and transgender employees or applicants The Court in this ruling was acting as a unelected legislature by expanding this definition beyond what was contemplated in 1964.
These two rulings will ultimately force religious institutions to either abandon their religious teachings, risk the loss of their tax exempt status or be sued out of existence. It appears that the conscience of the religious are not as important as the activism of the LGBTQ community. It won’t be long before there will be LGBTQ individuals applying for high visibility positions in religious institutions so that lawsuits can be filed.
In a rare win for religious freedom, the Supreme Court ruled in 2020, that the Little Sisters of the Poor and Hobby Lobby did not have to supply contraceptive products to their employees. This mandate was spawned out of the Affordable Care Act where the administrative state required all employers to offer maternity preventative care including abortifacias to all employees. This mandate was entirely created by the administrative state as it wasn’t mentioned in the ACA Act. These lawsuits took years to wind their way through the judicial process and cost these organizations millions of dollars to defend themselves against the administrative state.
In 2016 the chairman of the U.S. Commission on Civil Rights, created by Congress to protect the civil rights of all Americans, issued the following statement[1]: “[t]he phrases ‘religious liberty’ and ‘religious freedom’ [are…] code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, [and] Christian supremacy….”
This dangerous view, which continues to spread, is highly destructive of the American commitment to freedom and equality and demands a sustained effort to recover the true meaning and value of religious freedom.
Religion is, first and foremost, the human search for a greater-than-human source of being and ultimate meaning. “Religion is the effort of individuals and communities to understand, to express, and to seek harmony with a transcendent reality of such importance that they feel compelled to organize their lives around their understanding of it…” Most people by their nature seek answers to questions that seem to be in our DNA. For example, is there something or someone to which or to whom I owe my being? If so, how should I order my life in light of that discovery? Why is there suffering? Is there life after death? If so, does my behavior in this life affect my fate after death?
Second, most people who believe they have discovered religious truths join with others of like mind and spirit. Accordingly, although it is deeply personal, religion is also an organized, shared set of beliefs and practices that define a religious community, and which are lived and expressed in the public life of the society in which that community is situated
Religious freedom is a fundamental right that is guaranteed in the First Amendment of the United States Constitution. It is the equal right of all human beings and all religious communities to the free exercise of religion.. The United States Constitution, and the legal foundation of any rightly ordered political community, carries a presumption in favor of religious freedom, and the government must bear the burden of proof to overcome that presumption.
Religious liberty therefore includes the rights of churches, synagogues, mosques, temples, and other houses of worship not only to exist, but also to flourish. Given the importance of religion in the founding, houses of worship have historically been given privileges, such as tax exemptions, that encourage their building and their growth.
Religious freedom also includes the right of individuals and communities to create and operate religious institutions such as homes for the poor, the aged, and the dying; medical clinics and hospitals; primary and secondary schools; colleges and universities; services for immigrants; soup kitchens; food pantries; adoption and foster care agencies; drug rehabilitation centers, and the like. Without such private religious institutions, which generally provide services for all of us, American civil society would be a mere shadow of what it is today.
Religious liberty also includes the rights of faith-based businesses to operate according to the fundamental beliefs of their owners. These conflicts have raised several questions, especially where for-profit business owners are coerced into providing their services (cake bakers, florist and wedding planners) to same-sex couples for their wedding ceremonies. In general, coercion should not be applied in such matters, particularly when the services sought are easily available from other businesses willing to provide them. Unfortunately, some state governments and political groups have sought to coerce such businesses into financial ruin or to demonize them as haters and bigots. Whatever one’s views on same-sex marriage, these methods are bad for religious freedom and bad for America.
The world is experiencing a growing global crisis of religious freedom. Violent religious persecution, severe government restrictions, and rising social hostilities challenge religious freedom in every region of the world.
The global crisis makes it all the more imperative that the United States retrieve its historic understanding of the importance of religious freedom for the affirmation of human dignity, and for the flourishing of human beings and the societies in which they live. If the precious right of religious freedom is damaged or lost in America, where else can it be retrieved? What country at this point in history will defend the right of religious liberty for everyone, everywhere, if America does not?
Excerpts from: Albert Mohler “Is Religious Liberty Truly in Peril” 08/07/19, Ed Stetzer in Christianity Today “We can’t Roll the Dice on Religious Liberty” 07/25/20, and Thomas Farr “What in the World is Religious Freedom” Religious Freedom Institute 11/1/19.
