The House Subcommittee on the Constitution held a hearing on the "State of Religious Liberty in America" Wednesday. You might have thought, from the tenor of Chairman Trent Franks' opening statement (a link to the webcast is here), that religion was all but on the verge of extinction here in the United States. Franks gets the hearing started with the announcement that religious liberty in America "has come under attack in recent years as never before." Really? Never before? Please explain! (My rough transcript below)
Unfortunately, those who lack appreciation for the public component of religious liberty and those who fail to see the need to make religious exceptions for many generally applicable laws are putting the religious freedom that we cherish so much in grave danger for us all. Rather than taking advantage of the ample room the Constitution leaves for the accommodation of religion, increasingly, federal, state, and local governments are failing to create religious exemptions from otherwise neutral laws….
[S]o-called anti-discrimination policies that make no exception for religious beliefs are increasingly posing an ominous threat to religious liberty. For most religious groups, public service is a constituent element of their religious beliefs. Religious groups in America establish hospitals, operate homeless shelters, provide counseling services, and run agencies for adoption and foster care for children who might otherwise have no one in the world. But in the name of anti-discrimination or neutrality, these traditional religious services to the sick and less fortunate are threatened as federal, state, and local governments increasingly regulate private social services in ways that will not accommodate or even tolerate many religious beliefs on an otherwise neutral basis. These regulations are forcing religious groups to choose between abandoning their social work or abandoning their sincerely held religious beliefs in order to continue to serve the needy.
Okay… so threat number one is the scourge of…anti-discrimination laws?
What's threat number two?
Additionally, there are some who wish to use the Establishment Clause to eradicate free religious expression that is the complete antithesis of the original intent of that noble clause in our Constitution. They wish to vanquish any acknowledgement of religion from the public square, pushing traditional religion behind closed doors and replacing it in public life with a new orthodoxy of leftist secularism….
We do not have the right…to crush the religious expression of individuals who still hold it in their hearts. So often times those who would trample underfoot the religious freedom of their fellow Americans do so in the name of a "strict wall of separation between church and state." But rather than pointing out the profound historical misinterpretation of that phrase, I would only remind all of us that while that phrase did indeed appear prominently in the Soviet constitution it appears nowhere in the United States Constitution. The religious freedom protected by the First Amendment encompasses more than the ability to seek religious truth behind the walls of worship. It includes the right to embrace and express one's religious beliefs in public. This means that federal, state and local governments must leave room for religious individuals and groups to serve the community in accordance with their sincerely held beliefs, welcome religious perspectives in the debate over important public issues, and allow public acknowledgment of the importance of religion in America.
The second biggest threat, helping to constitute an attack on religious freedom "as never before," would be….the Establisment Clause and communists? Walking the streets of America and forcing would be worshippers behind closed doors, "crushing" religious expression, refusing to allow people of faith to serve in government, shouting down religious perspectives in public debate?
That doesn't sound like the America I've been watching recently. In reality, as even Franks noted, some 90% of the population believes in God. Not only do people of faith serve in government, you basically must be openly religious to have any chance of being elected in this country, and any time that religion is something other than Judeo-Christian, it's so rare it makes headlines.
Religious expression is alive and well in America. Suggesting that our first freedom is in peril on the same level as historic discrimination and persecution in this country is way off base. Where Rep. Franks and I agree is on the need to be vigilant in protecting and preserving those rights. Where we might disagree is in defining the best way to do that. For starters, the Establishment Clause is not the enemy of freedom; it is a vital tool to safeguard the religious liberty of all Americans.
And while religious accommodation and exemption to otherwise neutral laws is essential, it already is generally a feature of most anti-discrimination provisions. More importantly, public funding of religious services is not the best way to promote religious freedom. Independence requires autonomy, and religious autonomy is undermined, not increased, with an insistence on taxpayer funding. Churches and religious organizations wanting to provide valuable social services in furtherance of their religious mission, and maintain the right to discriminate in providing those services, should start by refraining from public funds.
