The Erosion of Religious Liberty in the U.S.

In a Post on Facebook on July 4:

Stephen Abraham

Can someone please explain what an attack on marriage and, perhaps separately, explain what the current attack on religious liberty looks like? I’m having trouble with the concept. I’m not feeling it?

Stephen,

I greatly appreciate your putting of this question out to the Facebook Universe.  I always tell my students that if one of you have a question about something it is likely that other students are in the  same boat – so always ask – it may end up helping many others besides yourself.

In my Contemporary Moral Problems class, I use the following definition of freedom – lacking internal and external hindrances (meaning you can choose and do without restraint) The Miriam Webster dictionary gives a definition of liberty:  the state or condition of people who are able to act and speak freely. In practical terms, these words are fairly synonymous.  Freedom = Liberty

So who thinks religious liberties are under attack in the U.S.? Who says this is happening? Well, for one the Pope who stated, “it is imperative that the entire Catholic community in the United States come to realize the grave threats to the Church’s public moral witness presented by a radical secularism which finds increasing expression in the political and cultural spheres.” … “The seriousness of these threats needs to be clearly appreciated at every level of ecclesial life.”

Let’s look at history.

Think pot of cool water.

The original Bill of Rights was included in the Constitution for the sole reason that the founders were concerned that an unfettered government may slowly over time encroach upon the liberties of its citizens. They knew the hearts of people and the trend of people in authority. The constitution, therefore not only grants duties to the three branches of government, it also protects the basic rights of the governed. Amendment 1 – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” First and arguably chief among the rights that the framers were concerned about was the right of the citizens to believe what they chose and to exercise those religious beliefs without government interference. When the religious establishment and prohibition clauses were written, they did two things: 1) restricted Congress from making any laws establishing a religion (making any particular religion the official religion of the entire nation and 2) restricted Congress from making any laws prohibiting the citizens from freely exercising (living out, practicing) their religious beliefs.

In short, the citizens were guaranteed religious liberty.

Let’s look at some early laws. In 1649, “Colonial Maryland passes the Religious Toleration Act, which could more accurately be characterized as an ecumenical Christian toleration act—as it still mandated the death penalty for non-Christians: That whatsoever person or persons within this Province and the Islands thereunto belonging shall from henceforth blaspheme God, that is Curse him, or deny our Saviour Jesus Christ to be the son of God, or shall deny the holy Trinity the father son and holy Ghost, or the Godhead of any of the said three persons of the Trinity or the Unity of the Godhead, or shall use or utter any reproachfull speeches, words or language concerning the said Holy Trinity, or any of the said three persons thereof, shall be punished with death and confiscation or forfeiture of all his or her lands and goods to the Lord Proprietary and his heires.” (Tom Head, Freedom of Religion in the United States: A Short History). In that year, it was a capital crime to deny basic traditional Christian theology or speak or write anything negative about the Triune God – punishable by death. Not saying I would agree with such a law, but it is what it was. It was a religious colony.

Think frog in the water.

Others did not agree either, hence in the Constitution in 1787, the framers wrote Article VI, section 3 of the U.S. Constitution which outlawed the use of religious tests as a criterion for public office: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

There was no objection whatsoever to government officials to believe and exercise their religions, only that there could not be a religious test for employment/service.

Think water getting warmer.

In 1878, the Supreme Court ruled, “Freedom of religion means freedom to hold an opinion or belief, but not to take action in violation of social duties or subversive to good order,” In Reynolds v. United States (1878), the Supreme Court found that while laws cannot interfere with religious belief and opinions, laws can be made to regulate some religious practices (e.g., human sacrifices, and the Hindu practice of suttee). The Court stated that to rule otherwise, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself. Government would exist only in name under such circumstances.”

In 1940,  in Cantwell v. Connecticut (1940), the Court held that the Due Process Clause of the Fourteenth Amendment applied the Free Exercise Clause to the states. While the right to have religious beliefs is absolute, the freedom to act on such beliefs is not absolute. (Wikipedia)

In essence, the free exercise clause was transformed to be the free belief in your head clause.  Not saying I disagree, just pointing that out. By the stroke of the Majority Opinion’s pen, the decision gutted the Free Exercise Right… it gutted it and emptied it of any reasonable correspondence to the original intent. Exercise is not belief, belief is not exercise. If that were so, we would all be in perfect shape and have ripped abs as long as we believe we are working out – even if we do not exercise.

Think tiny air bubbles beginning to form at the bottom of the pot.

In Sherbert v. Verner (1963), the Supreme Court required states to meet the “strict scrutiny” standard when refusing to accommodate religiously motivated conduct. This meant that a government needed to have a “compelling interest” regarding such a refusal. The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist faith. In Wisconsin v. Yoder (1972), the Court ruled that a law that “unduly burdens the practice of religion” without a compelling interest, even though it might be “neutral on its face,” would be unconstitutional. (Wikipedia)

Despite Sherbert, as late as 1960, the court was still attempting to put some semblance on the protection of the practice of religion, and did so by devising (on its own) the now famous three prong test for determining whether the government has violated an individual’s constitutionally-protected right to the free exercise of religion. This case, in fact, was a step toward once again protecting the free exercise of religion. However, in the 1990 landmark case Employment Division v. Smith, that court severely limited the use of the three-prong test, and for most intents and purposes, returned the state of affairs to be once again that citizens could believe, but had no freedoms to exercise.

Think bubbles starting to rise to the top.

In a great article by Jay Sekulow, he recounts a history of Religious Liberty in the U.S. and lists out several of the most recent developments in the demise of these liberties (Sekulow,  Religious Liberty and Expression Under Attack: Restoring America’s First Freedoms) I will not repeat them here, but it would be very instructive and helpful for your understanding to read them. There is example after example of this erosion. Religious speech in schools, in debates, in legislative debate, has become anathema, and this is undeniable.

Which brings us to the present. The Supreme Court just ruled, in Obergefell v Hodges that states could no longer prevent people of the same gender to be granted marriage licenses.  This is NOT an infringement on religious liberties. The decision did not force religious people to marry same gendered significant others. This decision, however, I predict will produce a full force assault on religious liberties. It started  with Sweet Cakes by Melissa owners not being allowed to decline to bake a cake for a gay couple’s wedding because it violated  their firmly held religious beliefs – and ending up having to close their doors.   If the Sherbert test was used to analyze this case,  it would likely be found that the Oregon Bureau of Labor standards unduly burdened the owner’s religious practices, especially in light of the gay couple’s freedom to have their cake baked by one of several other bakeries in the area who would have taken the order. This case may very well end up in the Supreme Court, but with its current makeup, I highly doubt that there will be any different outcome.

I predict this onslaught will continue with gay couples attempting to get married in churches that do not believe in gay marriage (again, although other churches will be available to provide the service) and eventually be require to set aside their firmly held religious beliefs or be shut down.

The water will be at a full boil.

But you didn’t see it coming, Stephen, and think there may be two reasons. First, that you do not value religious beliefs and practices as sacred and necessary to hold together a society. Second, that you have, just like many, many people who do hold them sacred, have seen the digression and erosion of these liberties to be so slow and incremental as to not notice… until it is too late, and the frog has been boiled alive and is now dead.

So. my answer to your question is, while there may, in fact, not have been a full frontal attack on religious liberties in this country, there have been many, many skirmishes and firefights, and in the landscape of religious liberty, much ground has been lost and Obergefell may very well signal the final battle.