Touchstone Addendum—A Website Exclusive

October 18, 2019

Restoring Religious Liberty

Why Freedom of Religion Does Not Mean Freedom From Religion

An excerpt from American Restoration: How Faith, Family, and Personal Sacrifice Can Heal Our Nation. Reprinted here with permission of the authors.

"It may be a tragic experience for this country and for its conception of life, liberty, and the pursuit of happiness if our people lose their religious feelings and are left to live their lives without faith. The Constitution does not demand that every friendly gesture between church and state be discountenanced; nor that every vestige of God be eradicated."1Judge Elbert T. Gallagher

"It is in accordance with their dignity as persons—that is being, endowed with reason and free will and therefore privileged to bear personal responsibility—that all men should at once be impelled by nature and also bound by a moral obligation to seek the truth, especially religious truth. They are also bound to adhere to the truth, once it is known, and to order their lives in accord with the demands of truth. However, men cannot discharge these obligations in a manner in keeping with their own nature unless they enjoy immunity from external coercion as well as psychological freedom. Therefore the right to religious freedom has its foundation not in the subjective disposition of the person, but in his very nature."2Dignatatis Humanae

"Religious freedom—as the nation has traditionally understood it—can't be a major concern for people who don't respect the importance of religious faith. And human rights, without a grounding in God or some higher moral order, are just a matter of public conscience. They're an act of government largesse, dressed up in pious language about human dignity."3Archbishop Charles Chaput, Archdiocese of Philadelphia.

"Religious liberty might be supposed to mean that everybody is free to discuss religion. In practice it means that hardly anybody is allowed to mention it."4G. K. Chesterton

Many of America's founding generation knew and experienced firsthand religious persecution. The prevalence of religious persecution in Europe made colonial America a refuge for men and women who faced opposition in their native countries as they sought to freely practice their faith. It is clear early Americans saw this freedom to worship according to conscience, rather than according to the dictates of government, as crucial to human flourishing and to the well-ordered society, because they enshrined protections for it in the First Amendment of the U.S. Constitution.

But a sea change happened in 1947 when, in an opinion in the case Everson v. Board of Education, former Supreme Court Justice Hugo Black codified a different understanding of the First Amendment. 

Everson involved a New Jersey law that allowed the state to reimburse parents who paid to use buses operated by the public transportation system to get their children to and from school at various Catholic institutions.  This reimbursement did not promote Catholic doctrine in any way, shape, or form. While the Court ruled the law was not enacted in violation of the U.S. Constitution, in his opinion Justice Black stated, "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable." 5

The frequent use of that phrase "separation of church and state," has convinced millions of Americans, including many people of faith, it is part of either the Constitution or the First Amendment, and is a just representation of the founders' attitude toward religious freedom. Those words are nowhere in the founding documents and in fact represent a decided swerve from earlier conceptions of the role of religion in American society.

They are instead from a letter written by one of the Founding Fathers several years after both of those documents were drafted. Nevertheless, they have become mantras for secularists in every area of American culture to silence people of faith and drive religion from the public square.

The First Amendment casts a vision quite different from this modern understanding of religious freedom. It reads,

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances."  

Judge Elbert T. Gallagher warned about the ramifications of Justice Black's words in 1958, when he dismissed a complaint against an ecumenical committee's attempts to install a Nativity scene on public school property in the village of Ossining, New York. In the dismissal, Judge Gallagher said the concept of the wall of separation between church and state was misleading.  He cautioned that if it continued to be used by the courts, the American public would become convinced it was in the Constitution and we would lose sight of the vision of a free and robustly religious public square that so inspired the Founding Fathers. Judge Gallagher's words went unheeded and his prediction has over time, slowly become true.6

Nearly thirty years later, in 1985, Supreme Court Justice William Rehnquist wrote a dissent in Wallace v. Jaffree that dealt with the propagation of Justice Black's "wall of separation" error. In Wallace, the Supreme Court struck down moments of silence for voluntary prayer or meditation at the beginning of public school days.

Rehnquist wrote it was "impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history." He added, the "greatest injury of the 'wall' notion is its mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights."  He concluded, "The 'wall of separation between church and state' is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging.  It should be frankly and explicitly abandoned."7

Rehnquist was correct. Unfortunately, in the seventy-plus years since Justice Black penned the words "wall of separation between church and state," freedom of religion has become confused with freedom from religion as groups hostile to religious faith have tried to reinterpret the intentions of our nation's Founding Fathers.

Freedom of religion means people have the right to practice their faith in both their private and public lives and in accordance with the dictates of their conscience.  It also means people have the right to not practice any faith if they so choose. Freedom from religion, in the eyes of secularists, means religious faith must be contained within the four walls of a church or someone's home, and religion has no role in the nation's civil discourse or public policy.

Unfortunately, for the past seven decades, those who have adapted this distortion have gone on the offensive to progressively scrub our nation of any religious influence, as well as attack the right of Americans to live out and practice their faith in businesses, schools, and ultimately their homes and places of worship.  While religious freedom still exists and respected by most Americans, the ability to openly live out that faith continues to be squeezed as it is increasingly challenged in all aspects of our culture.

What the framers of the Constitution intended was to make it impossible for the federal government—in particular Congress—to establish a national church, like the Church of England, or to force sectarian policy on an individual state or the nation as a whole. They did not intend, as Justice Black would have it, for the government to censor public religious expression, deny churches and religious organizations equal access to public facilities, and prohibit churches and government from working together for the good of citizens.  Nor did they intend—as has most recently been argued—to require people of faith to censor or abandon their own sincerely held beliefs once they enter the public square.

The gap between the language in the Constitution and the attitude in Justice Black's opinion is so wide it is worth asking just where he came up with the phrase, "wall of separation between church and state?" since it is found nowhere in the Constitution.

The words used by Justice Black came from an 1802 letter written by President-elect Thomas Jefferson to the Baptists of Danbury, Connecticut, who were a minority religious group in their Commonwealth. During the debate over the language of the First Amendment, Jefferson was serving as ambassador to France and was not living in the United States, so his input into the discussion was severely limited. When he served as governor of Virginia, Jefferson assisted the Baptists in their effort to prohibit the Commonwealth from funding the Anglican Church in Virginia. The Danbury Baptists were deeply concerned because Connecticut established the Congregationalist church as the official state church.

Now that Jefferson was to become the president of the United States, and because of the assistance he offered to the Virginia Baptists, the Danbury Baptists wanted a guarantee that he—and by extension, the federal government—would not establish a national church and not interfere with their ability to express their faith in their own way. In his reply to their letter, Jefferson expressed sympathy with their concerns and assured them, in no uncertain terms, that he would not allow the federal government to establish an official church, nor would he deny them, the Danbury Baptists or others, their free exercise of religion. He wrote,

"Believing with you that religion is a matter which lies solely between Man and his God; that he owes account to none other for his faith or his worship; that the legitimate powers of government reach actions only and not opinions; I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State."8

In the words of Daniel Dreisbach, a professor of constitutional law and history at American University, Jefferson's words were "a political statement . . . carefully crafted to reassure Jefferson's Baptist constituents in New England of his continuing commitment to religious rights . . . [Jefferson's wall] wasn't meant to bar religion from public life but to prevent faith from being either politicized or tread upon by the government."9

This historical perspective on Jefferson's letter makes it clear Justice Black seriously misinterpreted the implications of the phrase "wall of separation."  Jefferson's record as president supports Dreisbach's argument, as he endorsed many policies that go directly against Justice Black's idea of "separation of church and state" and would anger the secularists of today, policies allowing congregations to use federal funds to construct churches and dedicated federal funds to supporting missionaries who worked among Native Americans.

The present struggle over religious freedom boils down to two sides. The first are those who believe they have a fundamental right, protected by the First Amendment, to practice their faith freely and openly in society. The second are those who believe religious freedom is not a fundamental right and any mention or practice of faith in the public square is a dangerous conflation of church and state. The result is that any public displays of faith by an individual or a community; prayers by elected officials; religious content in public schools; and many other expressions of religious conviction are now under attack.

The battle shifts from issue to issue. For example, in Wallace v. Jaffree, the question was primarily about prayer and religious expression in public schools. In other instances, defenders of the sanctity of life have encountered opposition in the form of laws prohibiting prayer outside abortion clinics.

One of the major flashpoints in the ongoing debate over religious freedom occurred with the Obama administration's Department of Health and Human Services Obamacare mandate. This mandate required employers—even ones with faith-based objections to birth control and abortion—to provide employees with insurance coverage for sterilization procedures and for contraceptives, including contraceptives that cause abortion by preventing embryos from implanting in the uterus.

Many Christian employers objected to the mandate, including a group of Catholic nuns—the Little Sisters of the Poor. Rather than provide a way for employers to opt out of the mandate's requirements if those requirements conflicted with their sincerely held beliefs, the Obama administration dug in its heels. With the support of groups like the ACLU, the administration made it clear to religious and pro-life employers, including the Little Sisters of the Poor, that they must comply with the mandate, even though it was a direct violation of their most deeply held moral beliefs.

If employers chose not to provide access to these abortion-inducing drugs, they faced crippling fines.  The scope of the fines involved left these employers, faith-based for-profit businesses and non-profits such as the Little Sisters of the Poor, a difficult choice: comply with the mandate, close their doors, or stand up for their rights.  Thankfully, they chose to stand.

The Catholic Church has left an indelible mark on modern healthcare in the United States. Its core belief in the sacred dignity of every person is underscored by its commitment to making high quality healthcare accessible to all, including low-income and rural communities. This same belief in the dignity of all human life also dictates which procedures Catholic hospitals and healthcare workers cannot provide.

The assault on Catholic health care providers is especially tragic because many small communities would have no access to hospital care if were not for Catholic hospitals. 

Thus, the loss of Catholic healthcare would be at the expense of countless of America's most vulnerable citizens. For instance, the Catholic Health Association reports that in 2016, one out of every six patients were cared for in a Catholic hospital. In 2015, Catholic hospitals handled more than 109 million outpatient visits; twenty million emergency room visits; 529,000 births; and five million hospital admissions.10

Writing in National Review, Alexandria DeSanctis said these attacks were not so much evidence of "how the Church is harming Americans" but more indicative of the antagonism toward the Church and its distinct morality.  She writes, "Left by the wayside is the liberal vision of a civil society as a patchwork quilt, flourishing as a result of distinctive institutions, not in spite of them."11 Thus, by engaging in such attacks, progressive groups are violating the very liberal principles they profess to believe.

Echoing these comments was David French, who states that these attacks on faith are also an attack on the virtue of believers. In his view, a healthy society would cherish the role the Catholic Church, evangelical ministries, and other religious organizations play in the health care and adoption field.  Unfortunately, the attitude of progressives is this, "Dear Christians, thank you for feeding, housing, and caring for the poor, but unless you do it in the manner we prefer—even to the point of adopting the personnel policies we demand—we will use all the power of law and public shame to bring you into compliance."12

He adds that tragically, the result will be all the good faith-based groups do to minister to the spiritual and physical needs of millions of Americans will go by the wayside.  He also says this is how progressive organizations justify causing faith-based hospitals to close, denying the poorest Americans access to health care.13 Ideology trumps compassion.

This aggressive approach represents a significant change in direction for progressive groups, which for a long time tried to at least appear supportive of the First Amendment right to religious freedom.  Michael Barone, who is not a believer, understands this issue as well. He writes that progressives have decided it is less important for them that people say what they think and more important that they say what the government requires, which increasingly is to compromise their core beliefs.14

In the early 1990s, Nadine Strossen, the president of the American Civil Liberties Union (ACLU) at the time, testified before Congress about how foundational she believed RFRA to be in the overall landscape of First Amendment protections.

RFRA was introduced in response to the Supreme Court's decision in Smith v. Employment Division of Oregon, known also as the "peyote" decision. In this decision, the court held that Oregon could deny unemployment benefits to a person fired for violating a state prohibition on the use of the hallucinogenic drug peyote, even though the use of the drug was part of a Native American religious ritual. 

The opinion was based on the idea of the "compelling interest test." In constitutional law, a compelling interest test is a method for determining the constitutionality of a statute that restricts the practice of a fundamental right or distinguishes between people due to a suspect classification. The late Justice Antonin Scalia, normally a strong proponent of religious freedom, wrote in his opinion that the Free Exercise Clause protects religious beliefs, but it does not insulate religiously motivated actions from laws, unless the laws single out religion for disfavored treatment.  Therefore, the state of Oregon could deny the employment benefits based on the peyote use.

Following this decision, Strossen told Congress RFRA was needed to "restore to religious liberty the same kind of protection that the Court has given and still does give to other fundamental freedoms . . . [and] . . . in order for government to infringe on a liberty, including religious liberty, it has to show that the measure is narrowly tailored so as to do as little damage as possible."15

She then proceeded to list those entities and institutions worthy of protection, a list including hospitals and schools with a distinct and particular religious foundation— institutions that today face legal attacks by progressive groups for their beliefs.  Strossen told Congress, ". . . these were decisions . . . that society had previously assumed that religious groups had the right to make for themselves and could not be compelled to change just because society thought otherwise."16

Her testimony calling for religious freedom to be treated with the same legal benchmarks used to protect all other essential liberties, described precisely the model our nation needs to re-adopt in order to restore the constitutional precepts of religious liberty.

The RFRA law, which ended up passing, gives equal legal protection to all religious individuals, whether they are Christians, Sikhs, Muslims, Apache Indians, Jews, or part of some other religious tradition. This is how it should be in a pluralistic society.But the situation changed in the early 2000s, when RFRA began to be applied to extend legal protections for Christian artists, civil servants, business owners, colleges, and ministries who were being asked to give up their beliefs in favor of causes championed by progressives.

When the Supreme Court ruled in Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties v. Burwell that under RFRA, closely held family businesses could not be forced to comply with the HHS Obamacare mandate, progressive groups let off a collective howl of protest. They immediately launched an assault on not only the federal RFRA, but state RFRA laws as well. These groups did the same when two years later, the court, in cases involving non-profit organizations such as Little Sisters of the Poor as well as several Christian colleges, remanded the decision back to the lower courts with the mandate to find a solution that protected these organization's religious freedom.

But the government is not the only threat to religious freedom. As David French has written in National Review, the ultimate threat to religious freedom is not the government, but from the media.  He says a combination of media and cultural pressure slowly bends church and other religious institutions until, in his words, "they buckle, and sacrifice their beliefs." 17 He adds, "once the media pressure sets in, the next reality emerges, American churches and religious institutions are often laden with members who don't share Bible-based doctrinal beliefs."

French also asserts that another part of the problem are the millions of people who profess to be Christians, but pick and choose which doctrines they want to follow and those they do not based on cultural trends. This has become known as "cafeteria Christianity."  The world sees this inconsistency and figures if these principles are not important to people who call themselves Christian, then why shouldn't Christians bow to the secular worldview? French writes, "To use an analogy, it's almost like some folks believe a religious worldview is like a Jenga tower—you can pull out a few planks without causing the whole edifice to collapse."18

French's point is that unless the faithful have the moral courage to stand strong against pressures from inside their churches or schools to conform to the world, religious freedom will remain under attack and ultimately be further circumscribed.

His most compelling (and applicable) point to us as believers is that we cannot expect to get all the benefits of Christian community while cherry-picking what doctrines we want or do not want to follow, based on what the culture is dictating at the moment. He writes that will not work because Christian community and service cannot be separated from the entirety of the Christian faith that compels such community and service.  He concludes, "Carve out the doctrines that conflict with modern morals and you gut the faith. When you gut the faith, you ultimately gut the church."19

If we are to restore religious liberty, we must engage. We must be involved. This is a time for a historic flood tide of faithful men and women to get involved in the media, in culture, and in public policy debates at the local, state, regional, and national levels.  But in doing so, we cannot compromise the core beliefs of our faith if we are to successfully restore America's spiritual foundation and God-given freedoms.

Thus, faithful Americans must continue to be "salt and light" and stand firm for our faith, no matter the costs, in all aspects of the culture if we are to turn back the tide against our most fundamental freedom: religious liberty.  As French points out, that means being "salt and light" and standing strong for religious liberty in our little platoons such as churches and schools.  In the following chapters, we will discuss ways we can do just that, because ultimately it is religious faith that will bring about America's restoration.

But we must stand together. This means all of us, regardless our faith background, who care deeply about the future of religious liberty. We must put our differences aside and join in this battle with those of other faith traditions. Much like the way Catholics and Evangelicals began a historic cooperation in the late 1980s-early 1990s, now we must begin to deepen our cooperation and work with conservative and Orthodox Jews, Muslims, Sikhs, Mormons, and those of other minority faiths who face the same threats. 

In this cooperation, we must demonstrate the progressive Left has not merely assaulted the rights of a particular group—evangelical Christians and Catholics—but has arrayed itself against a set of constitutional rights fundamental to being human. 

Daniel Mark, an assistant professor of political science at Villanova University and an Orthodox Jew, understands this. He writes that religious freedom is under attack because traditional beliefs are a threat to radical autonomy. Thus, the entire idea of human rights has been assaulted because license has become confused with liberty. They are two different concepts. License means being free to do whatever you want, which is anarchy. Liberty means we are free to pursue what we believe in our hearts is good. 

Mark concludes, "In these circumstances, we need to discover—or recover—a proper account of rights. This begins with a proper grasp of the good of religion, and finally, all the goods that constitute human flourishing."20

If humans are to flourish, and in turn, America is to flourish, the road to renewal starts here. The restoration of our constitutionally protected right of religious liberty and conscience has never been more urgent or timely than it is now. The question we must all ask ourselves is this, "What will I do to defend these freedoms for future generations?" and "How can I treat those who may oppose my values with dignity and respect?"  Our answer to those questions will have an eternal impact. •

Endnotes
1. Baer v. Kolmorgen, 14 Misc.2d 1015 (1958) Supreme Court, Westchester County. December 15, 1958.14 Misc.2d 1015 (N.Y. Sup. Ct. 1958) https://www.ravellaw.com/opinions/bde4c8fbd72c7c302333631d4b8f704f (Retrieved July 12, 2018)
2. Declaration on Religious Freedom Dignitatis Humanae, On the Right of the Person and of Communities to Social and Civil Freedom in Matters Religious Promulgated by His Holiness Pope Paul VI on December 7, 1964 http://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-ii_decl_19651207_dignitatis-humanae_en.html (Retrieved July 25, 2018)
3. Archbishop Charles Chaput, "Things to Come: Faith, State, and Society in a New World," Lecture Delivered at the Matthew J. Ryan Center at Villanova University,http://www.catholicworldreport.com/2018/02/22/things-to-come-faith-state-and-society-in-a-new-world/ (Retrieved February 23, 2018)
4. G.K. Chesterton, Autobiography of G.K. Chesterton, (San Francisco: Ignatius Press, 2006), 230.
5. Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947).
6. Baer v. Kolmorgen, op.cit.
7. Wallace v. Jaffree 472 U.S. 38, 61 (1985).
8. Thomas Jefferson, letter to Danbury Baptists, January 1, 1802 
9. Daniel Dreisbach, Thomas Jefferson and the Wall of Separation, (New York: New York University Press, 2002), 29.
10. See https://www.chusa.org/about/about/facts-statistics (Retrieved August 3, 2018)
11. Alexandria Desanctis, "FiveThirtyEight Smears Catholic Hospitals," National Review, July 27, 2018 https://www.nationalreview.com/2018/07/catholic-hospitals-fivethirtyeight-smears-hit-piece/ (Retrieved July 27, 2018)
12. David French, "Why Christians Can't Compromise on Conscience," National Review, August 1, 2018, https://www.nationalreview.com/2018/08/catholic-hospitals-abortion-comprimise-conscience/ (Retrieved August 2, 2018)
13. Ibid.
14. Michael Barone, "Liberals Against Freedom of Conscience," The Washington Examiner, August 2, 2018 https://www.washingtonexaminer.com/opinion/columnists/michael-barone-liberal-against-freedom-of-conscience (Retrieved August 2, 2018)
15. Nadine Strossen, Testimony in Favor of the Religious Freedom Restoration Act, September 18, 1992, 171 https://www.justice.gov/sites/default/files/jmd/legacy/2014/02/13/hear-j-102-82-1992.pdf (Retrieved July 12, 2018)
16. Ibid.
17. David French, "This is How Religious Liberty Really Dies," National Review Online, February 13, 2018, http://www.nationalreview.com/node/456374/print
18. French, "Why Christians Can't Compromise Conscience," op.cit.
19. Ibid.  
20. Daniel Mark, "Domestic Challenges to Religious Liberty—From the Left and Right," The Public Discourse, April 2, 2018 http://www.thepublicdiscourse.com/2018/04/21175/ (Retrieved July 25, 2018)