Understanding Religious Freedom

by Jennifer E. Walsh, Ph.D.

Throughout American history, religious liberty has often been described as our most important right—our “first freedom.” Our founders considered the right to freely worship an inalienable, universal human right that needed no explanation, no justification, and no defense. They also believed that the primary role of government was to protect this right and all those that flowed from it, such as the right to free speech, free press, freedom of assembly, and the freedom to petition the government for a redress of grievances. They believed that without such freedoms, our grand experiment in self-government would most assuredly fail.

However, while we consider religious liberty to be self-evident, this understanding of religious freedom that has guided us for nearly 250 years is distinctly American. Prior to our nation’s founding, Europeans routinely accepted the comingling of political power with religious authority—a blending of Church and state—that made theological dissension painful, if not criminal. In fact, many of the early settlers fled their homelands to escape religious persecution. To prevent that from happening here, our founders incorporated three specific protections into the new government. First, they crafted our Constitution to limit the scope of centralized government power. The new federal government was given authority over interstate commerce, international relations, taxes, immigration, currency, and trade, but most of its interactions were with states, not individual citizens. Second, specific safeguards were included to give added protection to religious believers. The Constitution, for example, prohibits the use of religious tests as a condition of public service. In addition, the First Amendment prohibits Congress from establishing a national religion or infringing on an individual’s free exercise of religion. Third, the Constitution reserved most governing power for the states. The assumption was that the political entities closest to the people would be more responsive to the people’s will, and as a result, better able to protect their rights.

The Fourteenth Amendment, ratified at the end of the Civil War, changed much of that initial structure. With an eye to curbing racial discrimination, it stipulated that no state may “deprive any person of life, liberty, or property, without due process of law; nor deny to any person . . . the equal protection of the laws.” It also gave Congress the power to enact legislation to protect these rights. The Civil Rights Act of 1964 offers a significant example of this. It primarily sought to end Jim Crow laws and other forms of state-sponsored racial discrimination, but it also barred discrimination on the basis of sex, religion, and national origin. Moreover, its scope went beyond the boundaries of state institutions and applied also to private businesses, schools, and other organizations that interacted with the public.

The growing complexity of the U.S. economy and the country’s increasingly pluralistic society gave the federal government additional reasons to regulate in areas previously under private control. Not surprisingly, this gave rise to numerous court cases by those alleging violation of their constitutional rights. Some of these cases argued that the government had inappropriately established a national religion by allowing the Ten Commandments or nativity scenes to be displayed on public property. Other cases involved plaintiffs who alleged that their right to free exercise of religion had been violated because they were no longer allowed to pray with students in public schools or teach from a public school curriculum that integrated the Scriptures.

On issues alleging the establishment of religion, the U.S. Supreme Court has ruled fairly consistently that government need not be “a-religious,” but it also could not allow some religious activity while banning others. For example, a nativity scene on public property may be constitutional if other religious groups are given the same opportunity to erect their religious displays at the same time.

The Court has also ruled that the Constitution does not require us to censor symbols, words, and phrases associated with our religious heritage. It does not violate the Constitution, for instance, to have religious imagery, such as depictions of Moses, engraved on our national buildings, nor is it problematic to have “In God We Trust” imprinted on our national currency. Even the current practice of having a taxpayer-supported legislative chaplain offer up prayers at the beginning of each session of Congress is considered acceptable in light of our longstanding traditions.

In order to protect the religious rights of others, the Court has also consistently ruled that the government must provide a significant or compelling reason before it may infringe on the constitutional rights of religious believers. For example, the government might have a good reason for requiring students to attend high school, but the Court ruled in Wisconsin v. Yoder (1972) that it was not compelling enough to justify coercing Amish families to violate their sincerely held religious beliefs. In other cases, the government has successfully passed the “compelling interest test” in situations that involved the well-being or safety of others. This justification has been used to require parents to provide life-saving medical treatment for their children, even when it violated their religious beliefs. However, even when a compelling interest exists, the Court has indicated that it must first consider all other means available. Recently, this stipulation worked to shield Hobby Lobby and the Little Sisters of the Poor from having to comply with the controversial birth control mandate of the federal Affordable Care Act.

The Constitution’s high regard for religious liberty also means that governments regularly make voluntary accommodations for religious believers. Charitable contributions to churches and other faith-based institutions may count as tax deductions, and state laws routinely exempt religious institutions from measures that prohibit discrimination on the basis of religion. Others take active measures to ensure that religious institutions are included as equal players with regard to funding for social welfare programs, educational programs, or other aid initiatives. School voucher programs, for example, regularly allow parents or students to use taxpayer funds to cover tuition costs at private, sectarian schools. In addition, federally funded Pell Grants, the GI Bill®, and other college tuition programs permit students to use their government grants at the accredited university of their choice. In many ways, these protections have helped to keep churches and faith-based institutions strong, even in an era of increasing government regulation. But that should not be too surprising, since religious communities have long been viewed as purveyors of social good.

However, that positive view of religion may be changing. Acts of terrorism by a few religious extremists, such as what we witnessed this past year in San Bernardino and Orlando, have caused some to advocate the revocation of civil rights for all Muslims. This would not only violate their constitutional rights, but also reverse our long-held tradition of promoting religious tolerance for all. Others have openly questioned the character of Christians who disagree with majority opinion on significant social issues, such as mandatory vaccination laws, right-to-die laws, and the Supreme Court’s ruling last year on same-sex marriage.

Although these threats to religious freedom are significant, the greatest existential threat to religious liberty may still be yet to come. Surveys from the last two decades reveal that regular church attendance is declining and, as a result, nearly 25 percent of those adults claim no religious affiliation. Even more troubling, more than one-third of millennials categorized themselves as religious “nones.” If this trajectory remains unchanged, we will soon be looking at a society where religious believers of all types will be in the minority. That will likely lead to a slow erosion of religious liberty. Governments will be less likely to consider the impact on religious communities when they adopt policy, and they will be less predisposed to make accommodations for religious believers negatively impacted by public policy. Perhaps most significantly, future judges, who are drawn from the community at large, may be less willing to defend religious liberty when future constitutional challenges arise.

Despite these challenges, the good news is that we can act today to preserve religious liberty for tomorrow. First, we can model reverence for religious freedom by extending tolerance to others. Our commitment to religious liberty cannot extend solely to our own faith community, but must be widely championed for all. Christians should be the first to defend the constitutional rights of Muslims and those who belong to minority faiths. Second, we can practice good citizenship by obeying the law, even when we disagree with it (Romans 13); helping all our neighbors, not just those within the community of faith (Luke 10:25-37); and treating all people— including political leaders with whom we profoundly disagree—with love and respect (John 13:35). Finally, we can prioritize evangelism and discipleship in order to fulfill the Great Commission (Matthew 28:16-20) and reverse the rise of the “nones.”

John Adams once remarked, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” If we are able to live out the commands of Scripture by sharing our faith, demonstrating tolerance toward others, and loving our neighbors as ourselves, then we will do more than just safeguard our religious liberty. We might just preserve the nation itself.

Jennifer E. Walsh, Ph.D., is dean of the College of Liberal Arts and Sciences and professor of political science. jwalsh@apu.edu

Originally published in the Fall '16 issue of APU Life. Download the PDF or view all issues.