By BJC General Counsel K. Hollyn Hollman
From the January 2010 Report from the Capital
How do we move our debates about religious liberty forward? How do we bring political and ideological opponents together to advance the cause of religious liberty in our country? As the Baptist Joint Committee works to defend religious freedom in the contexts of particular litigation and legislative battles, we also constantly evaluate those questions and look for opportunities to educate the public and build appreciation for the religious freedom Americans enjoy, but often take for granted. That is why we were eager to participate in a project that resulted in the publication of “Religious Expression in American Public Life: A Joint Statement on Current Law.”
Too often debates about specific religious liberty controversies perpetuate misinformation about the First Amendment and how it has been applied in the courts. The debates extend from the halls of Congress to talk radio, from coffee shops and truck stops to churches and kitchen tables across the country. Many of the debates involve the role of religion in the public square. While people often disagree on how the law should be applied, how it is currently applied is discernable. Many rudimentary questions have clear answers in existing law on which people across the political and religious spectrums agree.
Months of research, discussion, drafting and debating among a diverse group of religious and civil liberties experts led to the creation of a new and detailed summary of current law. The project, led by Melissa Rogers from the Wake Forest Divinity School’s Center for Religion and Public Affairs (and former BJC general counsel), was introduced to the public on Jan. 12 with an event at The Brookings Institution here in Washington, D.C. The statement explains what is legally permissible when it comes to religious expression in American public life, and it is written in a question and answer format in language that is easily accessible. This statement is not something lawyers created for lawyers — it is for everyone. You can access the document here.
The thorough statement addresses 35 questions, explaining subjects that are settled and clear (though often misunderstood), as well as noting where the ambiguities lie. Questions range from the legality of oaths on the Bible and other religious expression by elected officials (questions 6 and 7) to explaining that although there are no First Amendment restrictions on the political activities of religious organizations, there are IRS restrictions on the political activities of all tax-exempt organizations, including tax-exempt religious organizations (questions 8-11). The statement even explains the different ways religious expression is protected in various types of governmental forums (traditional public forums, designated public forums and nonpublic forms). Throughout the document, we demonstrate how the law recognizes an important distinction between religious expression that involves the government and religious expression attributable to nongovernmental organizations and individuals.
The project is not intended to give any false notions of agreement among adversaries about what the law should be. BJC Executive Director Brent Walker and I served on the drafting committee, alongside leaders from a diverse range of organizations. Some groups who support the document are actively working to reverse some of the decisions that create the law we now know. Others are working to prevent changes. The diversity of the drafters, however, made for a more precise statement of the law. We believe the statement will be helpful to sharpen and strengthen discussions about America’s robust religious liberty and avoid some common misconceptions.
We trust this statement will improve our national dialogue on the issues of religion in public life. The drafters of this document are united in their belief that current law protects the rights of people to express their religious belief and practice their faith in public life while preventing the governmental establishment of religion. This project has the potential to put aside the debate about whether the law protects religious expression beyond one’s home or house of worship (it clearly does). It clarifies where lines are drawn. That will not end our debates, but it will certainly make them more productive.