Preserve Our Traditions of Religious Freedom and Church-State Separation | Opinion

People are being held in prisons today in some nations simply because of their faith or beliefs. Certain governments single out members of particular religious communities for persecution and abuse. Many countries have an established religion, and some threaten citizens with jail time—and even execution—for criticizing that faith. Due to their religious beliefs and affiliations, individuals are sometimes barred from holding particular public offices and exercising other civil and human rights. Some countries require religious groups to register with the government and get approval for houses of worship and religious materials. In many places around the globe, missionary activities are legally prohibited, as is the wearing of religious clothing or symbols at work or in public schools.

The American record on religious freedom is disfigured by grievous errors, but its legal framework not only repudiates such persecution and discrimination, it also bans governmental establishments of religion and affirms the equal right of individuals to practice their faith. That framework has produced remarkable religious freedom for people of all faiths and none. It also has helped create a country where people with vastly different faiths and beliefs live together peacefully, and often with mutual respect and levels of interfaith cooperation that are unprecedented in human history.

Nonetheless, there are increasing calls for a massive overhaul of our religious liberty and church-state separation traditions—an overhaul that would include overruling decades of United States Supreme Court precedent. We shouldn't discard these traditions. Instead, we should celebrate them and redouble our efforts to live up to their demands.

Religious Freedom's "Co-Guarantors"

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The First Amendment of the Constitution generally bans the government from promoting or inhibiting religion, and from favoring one faith over another. It also protects the ability of religious institutions and individuals to exercise their faith. These provisions are "co-guarantors" of religious freedom.

Under the Constitution, there are no second-class faiths. Indeed, religious beliefs and affiliations, or lack thereof, are irrelevant to one's standing in the political community. This command aids our country's efforts to promote unity across religious differences and draw on all Americans' strengths, whether they identify as Baptists, Buddhists or Baha'is; Seventh-day Adventists, Sikhs or secular.

The Constitution recognizes that individuals must be able to choose and change their faith. Like-minded believers need to be free to form communities that carry out religious activities, including teaching the faith, publishing religious materials, conducting worship services and choosing ministers. Individuals must be able to wear religious clothing and symbols, both on public and private property. Governmental religious tests must not be imposed on those who seek public office.

And, as the United States Supreme Court has said, "[T]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." The Court's reference to "private speech" means speech attributable to nongovernmental institutions and individuals, not speech "in private."

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Consistent with these commands, voices of the faithful can be heard not only in the realms of policy and politics, but also in workplaces, public schools and other community settings. High school students form Bible clubs that meet on public school property just as other non-curriculum clubs do. Congregations, as well as community groups, often use such property on weekends on a first-come, first-served basis. Some workers, including government employees, keep sacred Scripture at their desks and wear religious jewelry, turbans, yarmulkes and headscarves. Faith-based organizations serve their neighbors, including through partnerships with government at all levels. Homeowners and houses of worship place religious signs and symbols on their front lawns and sometimes carry them into public parks, sidewalks and streets for events and demonstrations.

Faith is visible, vocal and vital in the United States. And rather than undermining faith, constitutional limits on governmental involvement in religion help preserve faith's integrity and influence. Government subsidies and promotion of religion invite religious dependency and government control.

Changing Course Would Harm Religious Freedom

Departing from these traditions would harm religious liberty and religious comity. Let's consider a few examples.

Say a city invites nongovernmental organizations to submit grant proposals for programs that help people conquer substance abuse. One applicant's plan to get people off drugs is for them to become adherents of a particular faith through study of sacred Scripture, prayer and other devotional activities. While the Constitution prohibits the use of grant funds for such explicitly religious activities, some on and off the Supreme Court are urging it to eliminate this restriction.

If the Court did so, think about the likely outcomes. Either a city will not discriminate against particular religions and receive intense blowback when some learn their tax money is supporting the inculcation of faiths they reject, or a city will discriminate against particular religions—depending on the city, Muslims, Mormons or Methodists may be disfavored. Also, remember: What the government funds, it will regulate. If taxpayer funds subsidize religious texts, messages and activities, the government will review and regulate them.

View of U.S. Capitol
View of U.S. Capitol Chip Somodevilla/Getty Images

The current system is far better—the government must allow religious and nonreligious organizations to compete for grants on a level playing field, but explicitly religious activities must be privately funded, purely voluntary for social service beneficiaries and separated from the government program in time or location. That separation insulates religious content from government support, as well as from governmental oversight and regulation.

Meanwhile, some are seeking to blow gaping holes in non-discrimination rules in the name of religious freedom. The Department of Labor, for example, has proposed a major expansion of the religious exemption for federal contractors from employment non-discrimination obligations, one that would cover at least some large commercial entities. The agency is ignoring a key command of religious liberty jurisprudence: The government "must take adequate account of the burdens" such exemptions may impose on people who don't benefit from them—here, workers seeking taxpayer-funded jobs. "Our decisions," the Supreme Court has noted, "indicate that an accommodation must be measured so that it does not override other significant interests." In short, employers aren't the only ones with religious freedom interests. Especially in a country that's becoming more diverse every day, respectful consideration of interests on all sides is the only way forward.

Preserving precedents prohibiting government-sponsored religious expression is also crucial to maintaining this environment of mutual respect, yet major rulings in this area are under fire, too. Some on and off the Supreme Court believe, for example, that the Constitution shouldn't prohibit the United States government from erecting a 32-foot-tall Latin cross monument as a memorial for military service members who gave their lives in Afghanistan and Iraq.

It's easy to see why such a memorial wouldn't seem to honor service members who were not Christians. What may be less obvious is this kind of memorial also distorts the Christian message. The Latin cross is the symbol of the sacrifice and resurrection of Jesus Christ and biblical promises of eternal life. When individual soldiers who wish to be buried in national cemeteries request that the cross be placed on their headstones, the cross communicates that message. But when the government appropriates the cross, claiming it represents sacrifice for the United States, it secularizes and nationalizes this sacred symbol.

Those calling for massive change aren't only targeting legal doctrine—they are also undermining other traditions that have helped Americans bridge their differences. In 2009, President Obama asked diverse leaders who differed on some church-state issues to try to find agreement on others. After painstaking work, this group found that they unanimously supported increased religious liberty protections for beneficiaries of federally funded social services, including requirements that beneficiaries be notified of these protections and assisted in accessing an alternative social service provider if they object to the religious character of their assigned provider. President Obama embraced those protections with an executive order, and they were added to regulations across nine federal agencies. Rather than honor common-ground policies across administrations, as has traditionally been the practice, the Trump administration plans to eliminate these religious liberty protections. Especially given some intense debates in this area right now, this is no time to abandon the search for common ground.

Keeping a System That Has Served Us Well

In her final opinion as a Supreme Court justice, Sandra Day O'Connor said:

At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. ...Americans attend their places of worship more often than do citizens of other developed nations, and describe religion as playing an especially important role in their lives. Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?

Americans should not trade the system that has served us so well. Instead, we should work diligently to preserve and perfect it.

Melissa Rogers is a Baptist, author of Faith in American Public Life and co-author of Religious Freedom and the Supreme Court. She previously served as special assistant to President Barack Obama and director of the White House Office of Faith-based and Neighborhood Partnerships and currently serves as a nonresident senior fellow at the Brookings Institution and a visiting professor at Wake Forest University School of Divinity. Portions of this essay are drawn from Faith in American Public Life (© 2019 Baylor University Press) with permission and all rights reserved.

The views expressed in this article are the writer's own.

Preserve Our Traditions of Religious Freedom and Church-State Separation | Opinion | Opinion