According to William J. Barber II, “religious freedom laws are an immoral ploy to stir up fears.” Barber is president of the North Carolina NAACP. In an opinion article published by Religion News Service, he said, “the mystery money and secretive organizing behind today’s ‘religious freedom’ bills seek to” use “moral and religious language to stir up old sexual fears,” a reference to fear of interracial marriage.
In a letter to the editor published in the New York Times, a writer declared, “By ‘religion’ they mean only those with illiberal positions on sexuality and reproduction. And by ‘freedom’ they mean the establishment of those views as the law of the land.”
How sad that such uninformed viewpoints find their ways into the public forum. It is doubtful James Madison had any thoughts about gay “marriage” or LGBT (lesbian, gay, bisexual and transgender) lifestyles when he led the fight for Congress to add the Bill of Rights to the United States Constitution on Sept. 25, 1789. It is equally doubtful that any member of the legislatures of the various states debated such issues before freedom of religion was finally adopted by the states Dec. 15, 1791.
Instead the original 13 states rallied around the promise that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Englishmen had no such freedom under their king but Americans, spurred on by Baptists and Presbyterians, would enshrine religious freedom in their founding documents. Religion was a matter of duty to God and, as Baptist leader Isaac Backus declared, “God is to be obeyed rather than any man.”
Backus was not alone in that conviction. In his famous “Memorial and Remonstrance Against Religious Assessments,” Madison argued that duty to the “Creator is precedent, both in order of time and in degree of obligation, to the claims of civil society.”
Americans’ greatest contribution
Today establishing freedom of religion as both a constitutional principle and a social value is widely acknowledged as Americans’ greatest contribution to the world. Contrary to Barber’s claims there has never been anything secretive or sinister about this nation’s commitment to religious freedom.
Through the years lawyers, judges and legal scholars have argued whether religious freedom related only to belief and profession or if it also protected conduct motivated by religious convictions. Michael McConnell, director of the Stanford University Constitutional Law Center in Stanford, Calif., points to early exemptions (1789) from members of pacifist religious groups like Quakers and Mennonites as evidence conduct was intended.
‘Free exercise’
McConnell argues the Founding Fathers saw exemption as part of “free exercise” as long as the religious activity did not harm public peace or other’s rights. Thomas Berg, professor of law and public policy at the University of St. Thomas School of Law in St. Paul, Minn., writes, “It is now accepted that the Free Exercise of Religion Clause protects religiously motivated conduct as well as belief.”
The Legal Information Institute goes further in declaring, “The Free Exercise Clause not only protects religious belief and expression; it also seems to allow for violation of laws, as long as that violation is made for religious reasons.”
A common example is whether an Orthodox Jewish military officer should be allowed to wear a “yarmulke,” a small round cap, according to the dictates of his religion even though rules prohibit servicemen from wearing anything other than official headgear.
Over the years the court developed a test called the Sherbert Test holding that government could burden a person’s religion only when a “compelling state interest” could be demonstrated. Then the burden had to be applied in the “least restrictive” way possible. But in 1990 the U.S. Supreme Court reversed itself in Employment Division, Department of Human Resources of Oregon v. Smith and ruled the state did not have to demonstrate a compelling interest to burden religion or to burden religion in the least restrictive way as long as the burden was an unintended result of generally applicable laws. Justice Antonin Scalia wrote that religious exemptions would make each citizen “a law unto himself” and were impractical in a pluralistic society.
In other words the court could not ban a religious practice for one group of people but it could ban the religious practice for all people.
The reaction was thunderous. Religious groups of all stripes rallied to restore the Sherbert Test through the Religious Freedom Restoration Act (RFRA) which was passed by Congress 97–3 in 1993.
Four years later in City of Boerne v. Flores the U.S. Supreme Court ruled RFRA applied only to federal laws and not to state and local laws. That is when a number of states adopted RFRA laws. Through legislation and state court decisions the majority of states now have RFRA protection for citizens.
Without the 1990 Smith decision there would have been no need for RFRA. But because the Supreme Court reversed decades of judicial precedence and robbed Americans of cherished religious freedom, RFRA was and is necessary.
Activists on the side of sexual freedom who brand religious freedom and RFRA a knee-jerk reaction aimed at legalizing discrimination against gays and lesbians speak out of ignorance. As we have written before this fight is much bigger than one’s sexual expression.
At the same time it is unfortunate that religion has been used by some to attempt to justify racial and gender discrimination. The religion of Jesus is supposed to preach deliverance of the captives, not add to injustice.
Still the issue is about the historic rights of those with sincerely held religious beliefs to act on those beliefs as long as they do not harm the public peace or other’s rights. That question will eventually end up in the Supreme Court. If the court decides the issue narrowly as it did in the Smith case, religious freedom will be abridged. If the court returns to the precedence of Sherbert then the compelling interest principle for government to burden religion may prevail.
Divided nation
In the meantime America remains divided. An Associated Press poll found 57 percent of Americans believe a wedding-related business should have the right to refuse service to a gay couple on religious grounds. Thirty-nine percent disagreed. An earlier poll by Pew Research Center found 47 percent in favor, 49 percent opposed.
Dan Cox, director of research for Public Religion Research Institute, observed Americans don’t like government telling people what to do when it comes to religion but they also strongly reject discrimination against gays in the marketplace.
“But when these two values conflict,” Cox said, “and the question is so narrowly constructed, they may answer it narrowly and reason that allowing a small subset of businesses to turn away gay customers would not have such sweeping discriminatory effects.”
We agree.
Share with others: