Issues Tearing Our Nation's Fabric The Center for Reclaiming America

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Religious Liberty
Chapter Nineteen

The principle of religious liberty is older than the Declaration of Independence, the Constitution, the Bill of Rights, or any of this nation’s founding documents. Before the Charter of New England or the Mayflower Compact, American patriots were motivated by the certainty that only a moral and religious people could govern themselves in freedom.

George Washington was chosen to lead the nation as its first president precisely because his peers understood the importance of spiritual wisdom to our experiment in democracy. John Adams, who served as the first vice president and the second president of the United States, said, "Our Constitution was made only for a moral and religious people. It is wholly inadequate for the government of any other." His words were not challenged; they were commonly held by all Americans at the time.

In light of our remarkable history, it is troubling that we must be constantly at war these days with civil libertarians and anti-Christian groups who wish to eradicate religion from the public square. The Founders would be shocked that the courts and the federal government have conceded so often to these radical views. But despite the debates, the freedom of religion is a fundamental right guaranteed by the Constitution which prohibits government from (1) giving support to one particular set of beliefs or (2) from taking any action to interfere in voluntary religious practice.

Religious liberty was considered so important by the Framers that it is the very first freedom granted by the Bill of Rights—ahead of the freedoms of speech, press, and assembly. The opening words of the Bill of Rights state that, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Yet, these two clauses, the "establishment" clause and the "free exercise" clause, are among the most hotly contested issues of our day.

The First Amendment requires government to be neutral regarding the practice of religion. Government is not to favor any one expression or denomination over another, nor is it to be hostile toward any person or institution on the basis of their religious beliefs.

Restoring the Rule of Law

Despite these precedents, some argue that times have changed. Many people have been working diligently to take away the right of religious speech and the right to display religious symbols in public. In response, people of faith have decided it may be time to add an amendment to the Constitution to make sure the courts, the legislative branch, and the executive branch abide by the rule of law and acknowledge constitutional principles regarding the right of religious expression.

In oral testimony before the Senate Judiciary Committee in October 1995 in support of a proposed "Religious Liberty Amendment" to the Constitution, attorney Catherine Cleaver of the Family Research Council described how various Supreme Court decisions over the last fifty years have been antagonistic to religion and have put the government into an adversarial relationship with people of faith.

More often than not, discrimination against citizens or groups with religious viewpoints has become the only constitutionally "safe" resolution to this false conflict. Insistence on avoiding appearances of endorsement of or incidental aid to religion has worked to inhibit the free exercise of religion. Comple-mentary clauses read to be inconsistent could not but result in inconsistent rulings. The current "chaos" in the federal courts in this area, then, is distressing, but not surprising.

The legislation supporting the amendment was introduced in Congress by Rep. Ernest Istook of Oklahoma in May 1997. What Istook and other lawmakers hope to accomplish is not to make Christianity the national religion, but to give all Americans, regardless of their faith or lack of it, the right to speak freely, to practice their beliefs, and to share equally in the constitutional protections and provisions of the law.

If It Please the Court

The problem is that today the courts practice a double standard when dealing with religious issues. Every kind of speech is protected by law except religious speech. To make sure the law does not punish religious speech while granting free speech to others, the proposed amendment would say to government, "do not discriminate against persons because of their religious beliefs," and to the Supreme Court, "do not construe this non-discriminatory treatment to be a governmental establishment of religion."

Liberal organizations have rallied in opposition. But the fact that groups like the ACLU, People for the American Way, and Americans United for the Separation of Church and State have called the amendment "extremist," as Cleaver points out, does not make it so. It merely confirms the predisposed hostility toward religion that has developed within the culture—in part, as a result of bad legal policy. The language of this amendment is, in fact, simply a "negative mandate" which says do not discriminate and do not misconstrue.

The Religious Freedom Amendment would grant no new rights, would create no new agencies or enforcement bodies, and would require no action except recognition of the rights originally understood to be guaranteed under the First Amendment. It is designed as a concise statement of the substance of the First Amendment in terms meaningful to the courts.

In a concise analysis of this subject in the November 1995 issue of American Enterprise magazine, University of Chicago law professor Michael W. McConnell points out it was Justice William Brennan, the leading liberal on the Supreme Court in the 1970s, who wrote:

. . . religionists no less than members of any other group enjoy the full measure of protection afforded speech, association, and political activity generally. The establishment clause . . . may not be used as a sword to justify repression of religion or its adherents from any aspect of public life (McDaniel v. Paty, 1978).

But things have changed radically over the past twenty years, says McConnell.

Whether because of mistaken views of constitutional law, fear of lawsuits, or actual hostility to traditional religion, school officials and other government functionaries frequently deny the rights of religious citizens with impunity.

Perhaps the following comment is the attorney’s most troubling remark, and the most challenging for Christians.

Usually the victims of these violations lack the courage, resources, or inclination to sue. With surprising frequency, these official acts are upheld by the courts. Even when they are not upheld, the officials suffer no penalty and have no incentive to change their ways.

From Twisted Logic

The courts’ misinterpretations of the First Amendment have usually taken one of two positions. Under a view of "strict separation," the courts acknowledge the right of free expression of religious beliefs so long as it is confined to the home, the family, the church or synagogue, or some other inconspicuous place. Or by some twisted view of the "free exercise" clause, the courts have decreed that the public square must be protected from Christmas carols, Nativity scenes, and other Christian symbols in order not to offend or infringe on the rights of those who hold different (or no) religious beliefs.

Such a view says that public events may have only a secular purpose. Public education can only be secular; public programs, such as graduation ceremonies, must be secular in content; and government support for charities may never go to those with religious affiliations. In short, the public square has become a hostile environment for religious liberty, which is the exact opposite of anything intended by the Founding Fathers.

McConnell comments:

History shows clearly that the establishment clause of the First Amendment was designed to ensure that no religion is given a privileged status in American public life. It was certainly not intended to require the secularization of society. The First Amendment has been turned on its head today: from a guarantee of freedom for religion, to an excuse for official hostility to religion. It is time that the equal rights of religious citizens to speak and participate in public life be clearly recognized and protected in the law.

How can we hope to bring about such a change? Keith Fournier, until recently executive director of the American Center for Law & Justice, offers a practical prescription for action. We must come to the defense of liberty, he says. We must make common cause with others who agree with us, and then work together to restore the freedom and dignity of faith in America. Fournier offers six practical steps for action:

Many Christian organizations are working in this area to defend the freedoms of religious expression. Radio broadcasts, such as Freedom Under Fire, produced by the Rutherford Institute, offer daily commentaries on the struggle for religious liberty. The National Legal Foundation and the American Family Association Law Center are also working at the forefront of this campaign. All of them can use your help; and each offers additional resources and counsel on how to deal with any threats you may encounter to the free expression of religion.

You may contact these organizations:

National Legal Foundation
6477 College Park Square, Ste. 306
Virginia Beach, Virginia 23464
(757) 424-4242

Alliance Defense Fund
7819 E. Greenway Rd., Ste. 8
Scottsdale, Arizona 85260
(602) 953-1200

For further reading:

John Whitehead. The Rights of Religious Persons in Public Education. Nashville: Crossway, 1994.
William J. Murray. Let Us Pray: A Plea for Prayer in our Schools. New York: William Morrow & Company, Inc., 1994.
Jay Sekulow, Keith Fournier. And Nothing But the Truth: Real-Life Stories of Americans Defending Their Faith and Protecting Their Families. Nashville: Nelson, 1996.

On the World Wide Web:

Rutherford Institute: http://www.rutherford.org/
American Family Association Law Center: http://www.afa.net/law/index.html
Leadership University: http://www.leaderu.com

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