Religious Liberty And Race In America

Religious liberty is rightfully called the “first freedom” enshrined in the U.S. Constitution. The First Amendment begins:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Religious liberty is therefore twofold. First, it includes a negative freedom from government establishing religion. Second, it entails a positive freedom to exercise one’s religion.

While religious liberty is often championed as a cornerstone of democratic life, it must not be celebrated uncritically. Like all rights, religious liberty has conflicted with other rights and with true justice. In this article, we will cover how religious liberty has conflicted with racial justice in American history.

Religious Liberty and Racial Hierarchy

Most conversations around religious liberty and race turn to individual cases. We shall discuss these later in the article. But first, we must understand how constructions of religious liberty itself frame the conversation around race and religion in America.

Tisa Wenger covers this broader conversation in Religious Freedom: The Contested History of an American Ideal. Wenger sums up her central claim in this passage.

The ideal of religious freedom perhaps inevitably intersected with race as America’s most fundamental system of social classification and control. Just as they used the principle of religious freedom to equate Protestantism with America, many Protestant and secular voices assumed its association with an Anglo-Saxon racial identity. [1]

Wenger offers two bodies of evidence to support this argument. First, was the deployment of religious freedom language by European Catholics and Jews. Initially, these two groups were suspect by Anglo-Protestants, who championed their version of Christianity as uniquely free and democratic. However, through aligning their traditions with Anglophonic sensibilities of liberty, Catholics and Jews were able to assimilate into the racial hierarchy, although not without struggle and persecution. [2]

On the other hand, Wenger notes that racial minorities were denied entry into the Anglo-Protestant association. White Americans viewed Black Christianity as primitive, sensual, and overly emotive (as Gayraud Wilmore documents well in Black Religion and Black Radicalism). Indigenous American spiritualities were viewed as “superstition” rather than “religion.” [3]

These distinctions between “religion” and “something-other-than-religion” are important. Defining an aspect of one’s life as “religion” grants one the rights to exercise it freely. While defining forms of social control and prohibition as “religion” delimits what governments can and cannot establish. White America circumvented the rights of religious and racial minorities by defining “religion” in ways that suited white establishment and enforced non-white coercion and control. It is against this racialized backdrop that we should think about “religious liberty.”

Religious Liberty and Inconsistent Jurisprudence

There is a classic parable in the philosophy of law about a figure named King Rex. The philosopher Lon L. Fuller uses Rex as a foil to ascertain the proper function and judgement of law. Fuller tells us that when Rex is faced with a legal dispute, he must choose carefully how he should rule on the matter. As Fuller puts it so eloquently, when a judge rules on a case, “he inevitably engages in an act of retrospective legislation.” [4] Therefore,

To act on rules confidently, men must not only have a chance to learn what the rules are, but must also be assured in case of a dispute about their meaning there is available some method for resolving the dispute. [5]

Yet, in American jurisprudence, the same logics have not always applied. And when logic has been inconsistent in religious liberty cases, race has had something to do with it.

We are referring, of course, to Employment Division v. Smith (1990). The case involved two Native American men who were fired from a drug rehabilitation center. The reason? They consumed peyote during a ceremony in the Native American Church. The State of Oregon denied their unemployment claims because they violated workplace policy. Under other circumstances, such religious exercise would have been solid grounds to file for unemployment. In a leap of logic, the Supreme Court ruled that the Free Exercise clause actually allowed Oregon to deny the men employment benefits.

Contrasting Smith with Sherbert

To get at this problematic, consider Sherbert v. Verner (1963). In this case, a Seventh Day Adventist woman was fired from work because she did not clock in on Saturday. The same situation played out. The State of South Carolina determined she was ineligible for unemployment benefits. When the Supreme Court reviewed the dispute, the justices ruled that the woman’s religious convictions were enough to secure unemployment benefits.

There are two key differences here. First, in Smith, peyote had been outlawed. In 1970, the Controlled Substance Act of 1970 prohibited peyote. On the original 61-page act, there was no mention of an exception for peyote usage in spiritual ritual. In 1981, the federal government passed an exemption for members of the Native American Church to religiously use peyote. Yet, Oregon had outlawed it on the state level, which brought Smith about. Note that plenty of other religious substances exist, such as wine, bread, and incense, which were never criminalized like peyote was.

Additionally, the defendants used the same arguments in Smith and Sherbert. In both cases, defendants argued that the plaintiffs were rightfully denied unemployment benefits for breaking state policy. In Smith, the men violated state law prohibiting peyote. And in Sherbert, the woman failed to take on work when offered.

The racialization of “religion” and who is protected by “religious liberty” affected both the inciting policy (outlawing peyote) and the justices’ determination (Smith was denied religious protection, while Shebert was granted it).

Religious Liberty and Racial Discrimination

We now turn to a case that occurred two years after Smith. Bob Jones University v. United States (1992) involved a fundamentalist private university which, as part of its fundamentalism, prohibited interracial dating and marriage on its campus. This conflicted with the IRS’s 1970 policy amendment, which would revoke tax exempt status from 501c(3)s that practiced racial discrimination.

File:BJUSign.jpg — Bob Jones University sign at entrance on Wade Hampton Boulevard, Greenville, South Carolina, United States. / Wikimedia Commons

Upon learning about Bob Jones University (BJU)’s practice, the IRS took away BJU’s tax exemption. The university filed suit, alleging that the IRS violated its right to free exercise.

In the case, the Justices ruled that the IRS was justified, as the government had a compelling interest in preventing racial discrimination. Bob Jones had a much more positive outcome than Smith, but the social context from which it arose was much the same.

Race, Religion, and Liberty

This was a brief foray into the connections between race and religious liberty. Wenger gives insight into the broader conceptual development of religious liberty as a concept identified with Anglo-Protestantism. Catholics and Jews both fought to integrate themselves into the tradition of religious liberty. But for racial minorities, religious liberty has always defined their spiritual traditions outside of “religion.” Or, as in the case of Bob Jones University, “religion” was weaponized against racial minorities to uphold racial discrimination.

Does this mean that religious liberty is a hopelessly racist concept? By no means. The reception of Smith is a great example of how even racially problematic decisions harm not just racial and religious minorities, but all groups.

The Court’s decision in Smith to permit government interests over religious free exercise was a sharp blow to religious freedom for all. Legal thinkers have lambasted Smith for its inconsistency and its consequences for later court cases. Blaine L. Hutchison’s 2022 article in the University of Cincinnati Law Review is a good example of such criticisms.

However, this complicated discussion bears important consequences for current conversations surrounding religious liberty. President Donald Trump’s “anti-Christian bias” taskforce and White House Faith Office have garnered criticism for these reasons. Any attempt at promoting religious liberty for some, and especially at the expense of others, should be interrogated. Especially given the racialized history of religious liberty in America.