Three Key Causes for the Erosion of Religious Freedom in America

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Catholic, Muslim, Jew, Mormon, Hindu, Baptist, Evangelical, Methodist, the affiliation did not matter. Leaders from almost all major religions in the United States joined together to express “deep concern.” What was so significant that such a diverse group of leaders representing millions of adherents would quickly unite? A call on the president of the United States to repudiate the Chairman of the U.S. Commission on Civil Rights’ recent opinion that religious freedom is merely a code term designed to disguise a desire to disadvantage others.

In response to the unprecedented opinion, leaders of all groups were firm in declaring: “We are one in demanding that no American citizen or institution be labeled by their government as bigoted because of their religious views, and dismissed from the political life of our nation for holding those views. And yet that is precisely what the Civil Rights Commission report does.”

That such an opinion would be expressed by a high public official perhaps seems surprising, given our Nation’s historic commitment to religious freedom and First Amendment protections.

Unfortunately, the chairman’s comment is not merely musing unconnected with practical reality. For the past two decades, public officials, academics and activists have challenged traditional deference to religious practice and the longstanding practice of accommodating those with conscientious objections to government policies.

How did we come to a place where the concept of religious freedom would be so highly contested?

Picture three streams converging to form a swelling river. Each stream represents a recent trend that has contributed to the erosion of protections for the free exercise of religion.

The first stream is the dramatic increase in the scope of government regulations. Where once the work of churches and people of faith might rarely have been impacted by legal requirements, that is no longer true. From zoning requirements to employment discrimination laws to traffic safety rules, new regulations impact religious groups. Of course, many, perhaps most of these requirements have little direct impact on matters of conscience, but the sheer number makes conflicts between legal rules and decisions of faith nearly unavoidable. Can a church operate a soup kitchen? Can a student religious club require leaders to adhere to the faith? Can the Amish refuse to display reflective tape on their buggies? A significant number of questions must now be resolved for the first time through governmental regulations.

The second stream is a dramatic increase in skepticism toward religion itself as evidenced by the Commissioner’s statement referenced above. As has been widely remarked, more and more people decline to identify with any particular religion.[1] Others openly express hostility to those with religious commitments, assuming they are judgmental and narrow-minded. Even those who do not feel any particular hostility, may feel they are unable to understand the beliefs and motivations of people of faith. This view is represented in many elite institutions, including the U.S. Supreme Court, and is evidenced by the dismissive response of some of the justices to the concerns of religious persons over participation in same-sex marriages or distribution of abortifacient drugs.

The third stream is the decline of formal protections for the free exercise of religion. In the early 1990s, the Supreme Court abandoned the practice of demanding government justify its burdens on religious practice by showing it had a compelling reason for creating the burdens. Though Congress acted to restore that standard, it only applies to federal law and must be interpreted and applied by judges (some of whom appear unsympathetic to concerns of conscience). Meanwhile, States vary in the amount of protection offered.

To use another metaphor, as the rain (legal conflicts and skepticism) has increased, the umbrella (legal protection) is shrinking.

Understanding these challenges points the way forward. Those concerned to protect and restore religious freedom would do well to respond to each.

In response to the increased legal regulation, for instance, those concerned about religious liberty should work to limit regulations or ensure new laws include specific accommodations for religious exercise. In response to the decrease in formal protections, courts and legislatures should be urged to restore protections and properly apply them in specific conflicts.

Most importantly, by living their beliefs and acting on their commitments, people of faith can demonstrate the value of religion to individuals, families and communities. Their example can serve as a testament to the social good of faith.

[1] http://www.pewforum.org/2015/11/03/u-s-public-becoming-less-religious/


by William Duncan.


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