Religious liberty in a divided (and confused) America

Monday, March 7, 2011

If you aren’t worried about the future of the American experiment in religious liberty, perhaps you should be.

Consider the alarming fact that 53% of the American people mistakenly believe that “the U.S. Constitution establishes a Christian nation,” according to a poll released by the First Amendment Center in September 2010.

The Constitution, of course, does no such thing. Even apart from the First Amendment, the “no religious test” for public office provision of Article VI would bar any attempt to establish Christian rule. And contrary to culture-war myth, the First Amendment does separate church from state — at first on the federal level in 1791, and then on all levels of government through the 14th Amendment (as interpreted by the U.S. Supreme Court in the 20th century).

For Thomas Jefferson and James Madison, the two Founders most frequently quoted by the modern Court on the meaning of the religion clauses of the First Amendment, full religious liberty is possible only in a society committed to both church-state separation and robust protection for the right to practice one’s faith openly and freely. In other words, two principles — “no establishment” and “free exercise” — guard one freedom: religious liberty, or freedom of conscience, as an inalienable right for people of all faiths and none.

Establishment-clause confusion
But how much separation does “no establishment” actually mandate under the First Amendment? Ongoing conflicts over where to draw the line on church-state relations — from petty fights over holiday displays to high-stakes litigation over state funding of religion — contribute to widespread public confusion about how the establishment clause is supposed to work.

In 2010, people on both sides of the “separation” argument had plenty to argue about — and these conflicts have left the wider public more confused than ever.

On one end of the spectrum, many conservative religious people have become more convinced than ever that “separation of church and state” has become code for “hostility to religion.” Many were disappointed, for example, by the Supreme Court’s refusal in March 2010 to hear an appeal of Nurre v. Whitehead, a lower court decision upholding a school district that prohibited students from playing an instrumental version of “Ave Maria” at graduation.

And in May, conservative Christian groups were outraged when a federal judge declared the National Day of Prayer unconstitutional (Freedom from Religion Foundation v. President Barack Obama). Although the prayer-day ruling will most likely be overturned, it provides fresh ammunition for those who claim that “separation” is used as weapon to keep religion out of the public square.

Meanwhile, on the other end of the debate, many strict separationists have continued to sound an alarm over what they perceive as a blurring of church-state lines because of the influence of religious groups on public policy (especially in the current fights over legalization of same-sex marriage). In the courtroom, separationist groups filed lawsuits in 2010 to combat state entanglement with religion in cases involving everything from holiday displays in buildings to sectarian prayers at city council meetings.

In 2011, the Supreme Court has an opportunity to clear up some of the confusion — or, depending on where you stand, make matters worse. In Arizona Christian School Tuition Organization v. Winn, the Court will rule on whether a state program that gives parents tax credits for tuition at religious schools violates the establishment clause. If Arizona wins (as appears likely given the current makeup of the Court), the victory will continue the trend in the high court of lowering the “wall of separation” by allowing more government involvement with religion, including arrangements in which tax money reaches religious organizations through various forms of indirect funding.

Free exercise imperiled?
On the “free exercise” front, most Americans would be surprised to learn just how little protection the First Amendment provides for religious-freedom claims under current law. That’s because the U.S. Supreme Court seriously weakened the reach of the free-exercise clause in 1990 (Employment Division v. Smith) by ruling that government no longer must show a “compelling state interest” before denying a religious exemption to an otherwise neutral, generally applicable law.

To date, 14 states — Texas, Pennsylvania, Illinois, Florida, Arizona, Connecticut, Rhode Island, South Carolina, Alabama, Idaho, New Mexico, Oklahoma, Missouri and Virginia — have passed laws to restore the compelling-interest test.

In July 2010, we saw how such restoration works when the 5th U.S. Circuit Court of Appeals invoked the Texas Religious Freedom Restoration Act to uphold Adriel Arocha’s right to wear his hair in traditional braids in public school (contrary to the school’s dress code) — a practice his family believes expresses their faith as members of the Liban Apache tribe.

Under the Supreme Court’s current interpretation of the First Amendment, the Arocha family’s appeal for accommodation would likely fail. The school would need only to demonstrate that it treats Adriel like other students and has reasonable grounds for requiring short hair (e.g., hygiene, discipline). But those 14 states, through laws like the one in Texas, give back what the Supreme Court took away in 1990, affording religious claims a high level of protection.

Lack of accommodation by government, however, is not the only current threat to free exercise of religion. For some minority religious groups, religious liberty is undermined by a society increasingly infected with intolerance and hate. Strictly speaking, most anti-Semitism in America, for example, is not a First Amendment issue because it rarely involves government action against Jews. Nevertheless, anti-Semitism remains a serious problem in the United States, with 72% of the recorded 1,575 anti-religious hate crimes directed against Jews in 2009, according to an FBI report released in November 2010.

Since 9/11, demonization of Islam has become a cottage industry in the U.S., with widespread propaganda conflating Islam and terrorism. In 2010, Islamophobia came out of the shadows, injecting anger and fear into the debate over the so-called “ground zero mosque” in New York and triggering widespread anti-mosque protests from California to Connecticut.

Much like the anti-Catholic hysteria of the 19th and early 20th centuries in America, the current fear and loathing of Islam and Muslims inspired attacks on Muslims and Islamic institutions in 2010 — and more of the same is likely in 2011. Some political leaders have tried to speak up for the religious-liberty rights of Muslim Americans, but, as we saw in the midterm elections, those who do are often attacked for “supporting the terrorists.”

The challenge
Despite the ignorance and contention surrounding the religion clauses of the First Amendment, the United States remains the world’s most successful experiment in living with religious differences. The challenge in the years ahead will be not only to sustain this extraordinary arrangement, but also to expand the First Amendment principles of religious liberty more justly and fairly to all citizens. This will be no easy task in the increasingly crowded and often hostile public square of America.