What Is Religious Freedom, anyway?

What Is Religious Freedom, anyway? April 10, 2015

Think-tanker Joseph Backholm cites some of the absurdities and posturing in the controversy over the Indiana Religious Freedom act–such as Apple threatening to stop doing business in Indiana, while still doing business in Saudi Arabia where gays can be executed, and a governor banning state travel to Indiana even though his state has a broader Religious Freedom statute than Indiana’s.

But then he gets to the underlying issue:   People have different understandings of what religious freedom means.  Is it just the freedom to attend worship services?  Does it just apply to internal beliefs but not to actions?  Does it only apply to individuals and not to what those individuals do when they operate a business?  He gets into the history of the issue  and the legal precedents in a way that people on all sides of the issue need to understand.  He also shows how the federal Religious Freedom Restoration Act has actually been used.

From Joseph Backholm, What Is Religious Freedom? – Family Policy Institute of Washington:

As the debate raged, one thing became clear. Everyone says they believe in religious freedom, but there are very different understandings of what that means.

As one post on my social media feed stated, “Religious freedom is about the right to worship how you want on your own time.” Lots of people “liked” it.

But is it true? Is religious freedom about church and the right to say your prayers?

The American idea of religious freedom is rooted in the First Amendment. “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof…”

Those eager to take a narrow view of religious freedom often cite Reynolds v. the United States when the Supreme Court said, “Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices.”

This seems to suggest that the government can control our actions, even those we say are “religious.”

But that quote, and that case, is far from the end of the story.

In fact, it was the beginning story. Literally.

Reynolds, a case from 1878, was the first time the Supreme Court considered what the “free exercise” of religion meant. In that case, they took a narrow view of religious freedom because they wanted to ban polygamy and Mormons were arguing that the First Amendment protected their right to multiple wives.

Strangely, this 140 year-old case in which the conservatives of the day banned polygamy is now being used by modern day leftists to force today’s conservatives to celebrate same-sex weddings.

However, after Reynolds, the Supreme Court abandoned their own precedent and greatly expanded their understanding of what religious freedom was.

Jehovah’s Witnesses were acknowledged to have the right to pass out literature (Schneider v. Town of Irvington, 1939) and refuse to cite the pledge of allegiance (West Virginia State Board of Education v. Barnette, 1943). Seventh-Day Adventists could not lose unemployment benefits for declining to work on Saturday (Sherbert v. Verner, 1963) and the Amish could not be bound by compulsory school laws that conflicted with their beliefs (Wisconsin v. Yoder, 1972).

In these cases, the Supreme Court clarified that if government is going to burden religious freedom, they must: (1) have a compelling reason and (2) use the least restrictive means possible.

It wasn’t until Native American’s became involved that the Supreme Court moved away from strong protections for religious freedom. In 1988, the court ruled that it did not violate the law to build a road through Native Americans’ sacred lands (Lyng v. Northwest Indian Cemetery Protective Ass’n) and then in 1990 ruled that the government could stop them from using peyote in their religious ceremonies (Employment Division v. Smith) as they had done for thousands of years.

Curiously, building a road through sacred lands was not illegal because it did not “coerce individuals into acting contrary to their religious beliefs,” though that is exactly what is being attempted now.

In these cases, the court didn’t just change the outcome, they changed the test.

Instead of requiring the government to have a compelling reason and use the least restrictive means possible, the Court said the government needed only to prove that their laws were “neutral laws of general applicability.”

In other words, “everyone was required to eat the pork, so you Jews have no right to complain about being targeted.”

This is a much lower standard that disrespected the religious freedoms of everyone, not just the Native Americans who were impacted in these cases.

In recognition of this fact, Congress responded to the Supreme Court’s decision by passing the Religious Freedom Restoration Act (RFRA) which restored the standard that existed prior to 1990. It passed Congress almost unanimously and President Clinton signed it in 1993.

Once again, religious freedom received the highest protections we give to fundamental rights.

Since then, RFRA has been used to defend: (1) the rights of a Lipan Apache leader to own eagle feathers; (2) a Sikh devotee’s right to carry a kirpan (an emblem resembling a small knife with a blunt, curved blade) to his job at the IRS; and (3) allowed a kindergartner to enroll in kindergarten despite a policy that a boys hair should be shorter than the collar.

What’s the point of all this?

Religious freedom has always been about much more than “the right to worship how you want on your own time.”

“But not in your business”, they say.

While the law does treat businesses and individuals differently in many ways, it has long recognized that businesses do not exist independent of the people who own them. And those people still have rights.

This is why courts have acknowledged that corporations have free speech rights, the right to be free from unreasonable search and seizure, and even a racial status. After all, you can’t have a minority owned business if the business doesn’t take on some of the characteristics (and resulting protections) of its owner.

If a business can be Hispanic, can it not also be Catholic, Jewish, or Muslim?

Unfortunately, for those who are working hardest to destroy the individual freedoms of Americans, none of this matters.

Things like legal precedent and the free exchange of ideas are simply roadblocks to a more tolerant world.

If they can just stop you from “discriminating”, then the world will become more tolerant. The fact that they have to be exceedingly intolerant in order to make the world more tolerant is lost on them because they have good intentions.

But it should not be lost on you.


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