WASHINGTON – Are the current threats to religious liberty in the United States unprecedented?
Religious freedom advocates disagreed at a recent Washington, D.C., conference, but at least one asserted there is something new and different about the menace to a right protected in the First Amendment.
The debate came during a day-long event sponsored by a new program of the Ethics and Public Policy Center (EPPC), a Washington-based organization that seeks to apply Judeo-Christian values to policy issues. The American Religious Freedom Program, established last year by the EPPC, instituted the conference as part of its effort to help strengthen religious liberty.
In a panel discussion about “unprecedented threats” to religious liberty, Richard Land agreed with the session’s premise.
“When we hear the word ‘unprecedented,’ I can think of no other time in the history of the United States when the Justice Department of the United States would go before the Supreme Court of the United States and make an argument – as it did in the Tabor case – that there are no particular and special protections for religion in the First Amendment and that churches and religiously affiliated organizations have no more protections under the First Amendment than a country club,” said Land, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission.
The Obama administration lost that argument in a 9-0 opinion in January, when the Supreme Court ruled that the First Amendment prevents the government from interfering with a church’s ministerial hiring practices. The decision came in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission.
The Tabor case represents one of three types of threats to religious freedom – threats that “are growing in number and intensity and severity,” said Hannah Smith, senior counsel of the Becket Fund for Religious Liberty. Tabor is part of the threat to the freedom of religious groups to choose their leaders, she told conference participants. The other two threats, Smith said, are:
– The Obama administration’s mandate – with an inadequate religious exemption – that health insurance plans must cover contraceptives, including ones that can cause abortions, and sterilizations as preventive services.
– Violations of the conscience rights of religious individuals, including pharmacists who oppose dispensing abortion-inducing drugs, photographers who decline to photograph same-sex weddings and nurses who refuse to help with late-term abortions.
Nathan Diament and William Galston contended the current threats are not unprecedented. “[T]hat is not meant to comfort you,” Diament said.
Diament, executive director of public policy for the Union of Orthodox Jewish Congregations of America, pointed to a 1990 Supreme Court ruling as evidence for his argument. The high court’s decision in Employment Division v. Smith eradicated long-standing protections for religious free exercise that required government to have a compelling interest and use the least restrictive means to abridge the right.
What about the federal government’s treatment of Mormons in the 19th century or attempts in the early 20th Century to ban parochial schools?, asked Galston, senior fellow at the Brookings Institution.
Gerard Bradley, law professor at Notre Dame University, told the audience, “[T]he real question is: ‘In what way or ways is the threat today different and more serious than other threats?’”
There have been threats to religious liberty that have been as egregious, but “they’re old,” Bradley said. “Now we’re talking about something that’s happening 50 years into the institutionalization in American law and culture of a kind of religious pluralism. And we live in an era of much different ideas about religious freedom and the scope of the term religion. So it is uncharacteristic, unusual, anomalous, maybe not unprecedented, for this kind of thing to happen now.”
The contraceptive/abortion mandate and other initiatives by the Obama administration reflect two recent judgments on religious freedom, Bradley said:
– Dissent on an “emerging orthodoxy” about contraception, same-sex marriage and when life begins “is being increasingly identified” with religion. “[I]t’s not reasonable to oppose contraception, but people do oppose contraception but they would be religious people. So that’s one thing in motion, a kind of marginalization of a certain set of viewpoints . . .”
– “[A] body of people with certain moral views about controversial issues like abortion, same-sex marriage and contraception are being told by outsiders, ‘That’s your religion, whether you know it or not or whether you like to admit it or not, and your religion, your doctrine, the tenets of your religion, they’re not reasonable. Now you hold them and in some limited, strange sense they might be true, but they’re beyond rational defense. … So religion and doctrine thereof is being squished into this space reserved for the beyond the rational.”
The contraceptive/abortion mandate “shows either a hostility to religious freedom or a complete ignorance of the First Amendment,” Land said. “It seems to me there are not any other alternatives.”
“I think I can make an argument that this extreme, secularist mind-set embodied in the [contraceptive/abortion] mandate violates not only the First Amendment’s free exercise clause but the establishment clause as well,” he told participants. “When the federal government asserts the right to universally mandate actions, trample religious convictions and then grant exemptions to those it so chooses, the government is behaving perilously like a secular theocracy granting ecclesiastical indulgences to a chosen few.
“Make no mistake about it,” Land said. “This is only incidentally about reproductive freedom. It’s about freedom of religious organizations to practice their faith.”
Baptist theologian Timothy George expressed concern at the May 24 conference that even Baptists, who have been known as champions of religious liberty, have experienced “a kind of amnesia about these roots of religious freedom.” He pointed to two developments in the last 100 years that he believes have resulted in this becoming an issue:
– “The reduction of Baptist identity to rugged individualism and the restriction of religious freedom to simply what’s good rather than the communitarian emphasis that was there certainly in the 17th Century when Baptists emphasized covenants, catechisms and confessions.”
– The issue of church-state separation “has become the subject of a great deal, I think, of misconstrual as to what it originally meant and what it might mean today. It has become, in fact, for many Baptists and others the severance of religion from public life. And now we are caught again in this misunderstanding of the most basic rudiments of our religious faith.”
George spoke on a panel of representatives from various religious traditions about working together to protect religious liberty for all. He urged the participants to maintain their “firmly held religious conviction” while defending religious freedom.
“[W]ithin our own religious conviction and tradition there is a common-core commitment that allows us to respect one another, to enter into dialogue with one another and to stand for one another when religious freedom is under assault. [It is] what I call an ecumenism of conviction, not an ecumenism of accommodation. That’s the way forward,” said George, dean of Beeson Divinity School at Samford University in Birmingham, Ala.
The EPPC’s American Religious Freedom Program plans to start caucuses for legislators in all 50 states to help protect religious freedom, said Brian Walsh, the program’s executive director.
“We’re willing to do whatever it takes, make sacrifices, in order to make sure that we continue to make religious freedom something that we can pass on to future generations,” Walsh told Baptist Press. “We’ve been given it; we can’t squander it.”
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press.)