Religious Freedom

Religious freedom is being reframed into a weapon used to impose beliefs on others instead of the shield the framers intended.

Photo credit: zimmytws on iStock.com

Welcome Back to Win-Win Democracy

Housekeeping

Thanks to all of you who responded to my request for feedback. Between the responses to the poll, the comments posted, and the private emails I received, I conclude that:

• To a large extent, I’m preaching to the choir. Most of you, like me, are over 60 and liberal. There are a few conservatives and a few more moderates, and almost no young adults.

• Most people share or discuss the articles with family and friends at least occasionally.

• Almost everyone who responded thinks that it is worthwhile continuing the newsletter and more than half of you expressed interest in helping to grow the audience.

People perceive enough value, I think, that I want to continue writing the newsletter. I will experiment with some ideas for growing the audience and will appreciate both feedback and help. I might reduce the length of the articles a bit to leave more energy for trying to grow the audience.

Covid Is Still Here

Last weekend, me, my wife, three children, their three partners, and our granddaughter attended the fourth family wedding of 2022. My wife, two of our children, our granddaughter, one of my sisters, me, and several others at the wedding all came down with Covid. Fortunately, we are all vaccinated to the fullest extent possible, so even though we’ve each (except our granddaughter) had some miserable days, we didn’t require medical treatment. But it has forced us to cancel a planned trip next week. Please remember to take precautions as more activities move indoors with the cooler weather.

Beyond Economic Issues

Since April, I’ve been writing in this newsletter about economic issues, focusing on how our system keeps workers in their place, sharing little of our country’s economic progress with them, while creating a group of American oligarchs and wealthy corporations, then granting them enormous political power through lax rules on how they wield their money; see the issue on Turning Money Into Power. Although there is much more that could be said, I think that we’ve discussed the most important points and made suggestions for win-win approaches to revamping the system.

Economic issues are hardly the only source of our rancorous partisan divide. We turn now to the role of religion and various (mis-)interpretations of religious freedom in inflaming our divide.

Religious Freedom at the Founding

Religious freedom is prominent in our nation’s founding myths. You know, the Pilgrims came here for religious freedom; then came the Puritans, also looking for religious freedom. These people came here because in England religious practice was controlled by the Church of England in cahoots with the government. Indeed, the King was the head of the Church of England.

So, you’d think that religious freedom would be a core value here. But, as Kenneth C. Davis put it,

“The idea that the United States has always been a bastion of religious freedom is reassuring—and utterly at odds with the historical record.”

As Davis explains, in reality, the Puritan leaders did not tolerate religious or political dissent. For example, Roger Williams was banished over disagreements of theology and policy, going on to found what is now Rhode Island. Many states had rules imposing religious tests for holding office¹. Some states provided full civil rights to people of certain religions but not of others, and a few states had official, state-supported churches.

Recognizing religion-inspired warfare in European history, James Madison and Thomas Jefferson did champion religious freedom and, most importantly, the separation of church and state. Joined by George Washington and John Adams, they ensured that our nation is governed by a secular government, certainly in word, if not always in deed.

God is nowhere mentioned in the Constitution² and the first Amendment prohibits Congress from passing laws that infringe on the free exercise of religion or that establish religion. (It wasn’t until 1925, however, that these prohibitions on Congress applied to the states via the Due Process clause of the 14th Amendment.)

We’re Not a Christian Nation

Madison underscored the importance of prohibiting the government from establishing a religion. He wrote³ (as quoted by Davis):

“Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?”

In other words, if you let government establish Christianity as the nation’s religion, you better be prepared to accept that it may not be your brand of Christianity. The wisdom of this view is demonstrated by the many conflicts, some violent, in this country among various Protestant denominations, Catholicism, and Mormonism. Even as late as the 1960 presidential election, candidate John F. Kennedy was forced to address the fact that he was Catholic, not Protestant.

Not only is the Constitution devoid of any mention of God, but Article VI states that (emphasis mine)

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Surely, if we were to be a Christian nation, we’d require our leaders to be Christian. When you hear present-day people argue that the United States is a Christian nation, you can be sure that they are either ignorant of the facts or intentionally lying.

Powerful Leaders Believe Otherwise

Case in point: Watch about a minute and a half of this October 26th interview with former VP Mike Pence on Fox Business News:

Even setting aside Larry Kudlow’s lies about “lefties want to scrap religion” listen to Mike Pence, the man who was a heartbeat away from being the leader of our country — and who clearly wants to be that leader in 2024 — telling us “the radical left believes that freedom of religion is freedom from religion.” What could that possibly mean? Does it mean that he wants our students to be taught in school to pray to Bhagavān or to Allah? Of course not. You can be sure that he wants his religion to be the one that we’re not free from.

Pence goes on to rewrite history by saying that “but it is nothing the American founders ever thought of.” Yet, even a cursory reading of the record shows that this was vigorously debated by the founders — and freedom of and freedom from religion were adopted as core parts of our founding. Pence is either ignorant of the history or intentionally trying to change it. You decide which.

Pence continues, bragging about the “pro-religious-freedom majority on the Supreme Court of the United States” installed by the Trump administration and, although he doesn’t mention it, the Republican Party. He promises even more of the same after the November 8th election.

Pence, like Trump, is but a foot-soldier in a well-funded, decades-long, systematic effort to impose Christianity on our nation, an effort to restore power to White, Christian nationalists who, in their own minds, are the rightful leaders and beneficiaries of our nation. I will discuss these efforts in a future issue of the newsletter.

The Reframing of Religious Freedom

We just saw how Pence (and his ilk) try to distinguish freedom from religion as apart from the concept of religious freedom embodied by the founders. That is but one element of the reframing of the concept of religious freedom that has been underway for many decades, picking up great speed with the election of Ronald Reagan. You must understand this reframing to understand the big picture of where the country is headed.

I am guided in this discussion by Andrew L. Seidel’s excellent new book American Crusade: How the Supreme Court is Weaponizing Religious Freedom. Although Seidel is a constitutional attorney, he skips the legal jargon for illustrative stories from which he draws principles. I can’t do his book justice in a few paragraphs, but I will borrow some of his analysis here. I encourage you to read the book itself.

Drawing Lines

Seidel’s premise (Chapter 3) is that the law is about drawing lines between what is permissible and what is not. The lines meander but most of the time they’re clear. He proposes three lines that clarify the issues of religious freedom.

Line 1: Action vs. Belief

Suppose you’re a parent and you believe that God wants you to sacrifice your child, a la the Bible’s Abraham and Isaac story. You can believe that God is speaking to you directly and giving you a commandment. But that doesn’t mean that you can act on that belief.

Our society, through its laws, has decided that one may not kill another human except under very limited circumstances (e.g., self-defense). Our laws don’t say that you can’t worship a God who commands such actions. But you may not act on such commands when your actions would violate the law.

This is an extreme example (although there are certainly parents who have acted on such delusions), but it makes clear that

We limit religious freedom in the name of secular values our society expresses through law.

Line 2: The Rights of Others

The second line is crossed when one person’s religiously-based action harms someone else, perhaps physically, such as when a parent severely beats a child because they literally believe in “spare the rod, spoil the child”. One such parent cited the so-called religious freedom bill that Mike Pence signed when he was governor of Indiana in her defense. Similarly, when a parent’s religious belief causes them to refuse lifesaving medical care for their child, the line is crossed.

No one has to be harmed physically for the line to be crossed. There have been cases where someone declares someone else’s property to be “holy ground” and decides to hold a prayer service there without permission. Their religious freedom doesn’t trump your property rights.

On the other hand, when a Jehovah’s Witness adherent refuses to recite the Pledge of Allegiance, no harm is done and their religious freedom should trump any expectation of full participation in the pledge.

Line 2 is crucial to prevent your religious freedom from trumping my personal freedom. Without this line, your religion, which I may not believe in, dictates how I must live my life.

This is the religious freedom analog of the old adage⁴ that “your right to swing your fist ends where my nose begins.”

Line 3: State and Church

Line 3 would seem simple: one can’t use government power or resources to promote religion. Doing so not only violates the Establishment Clause of the first amendment, but also violates the religious freedom of other citizens. A government official who promotes their religion, violates my religious freedom because it lends government power and resources — provided by the citizens — to promote religious beliefs that I might not believe in.

Importantly, this is not to say that a government official must deny their own religious practice. A government official may worship and preach in their personal capacity using their non-governmental resources. When a government official uses government resources to promote religion, people who hold other religious beliefs — or no religious beliefs — are excluded, yet one of our fundamental principles of law is that all persons are created equal.

Reframing

Think back to the video I asked you to watch of Larry Kudlow (Director of the National Economic Council during the Trump administration) interviewing Mike Pence. Ludlow sets up the conversation with two lies:

• The “radical left” (whoever they might be) wants to get rid of religion in public life.

• He (Kudlow) doesn’t want government to choose a particular religion, just to support religion.

Pence then picks up the theme saying that religious freedom does not provide freedom from religion. Pence is wrong: the framers got this right with the Establishment Clause in fact providing freedom from government-supported or government-imposed religion. In other words, Line 3.

Pence and others who want the government to use its power and resources to promote religion are fond of saying that they don’t want to choose a specific religion. But just look at what happens when, for example, legislatures advocate religion by requiring an opening prayer at legislative sessions and some non-Christian person wants to say that prayer. The “no specific religion” reframing is a smokescreen.

More serious, in my view, is when Christian nationalists reverse the meaning of Line 2, using it as a weapon rather than a shield. When someone says you can’t use birth control because their religion prohibits birth control, and then claims that the government providing birth control to me violates their religious freedom, they’re claiming that their religious freedom demands the ability to harm me. It gets even more ludicrous when a corporation claims that its religious freedom is violated when it is required to participate in government programs with which the corporation’s owner disagrees on religious grounds.

I might disagree with spending so much of our country’s riches on military preparedness because my religion might endorse pacifism. But this doesn’t give me the right to refuse to pay taxes because those taxes support military preparedness. By this analogy, it is clear that religious freedom is not allowed to trump laws regarding contributing to government programs. Yet, that’s exactly how Christian nationalists are trying to reframe Line 2 of religious freedom.

Instead of religious freedom protecting their right to practice their beliefs to the extent that they don’t harm others, supporters of the reframing are arguing that their freedoms are diminished when they can’t impose their beliefs on the rest of us. This turns religious freedom from a shield to a weapon.

What’s Next

Next time, we’ll talk about the decades-long and largely successful effort to use the Supreme Court to reframe religious freedom as I’ve described above. In particular, we’ll sample some of the Supreme Court cases that have redefined what we mean by religious freedom based on the reframing I just described. We’ll also discuss the multi-decade effort to change the composition of the Supreme Court to allow the transformation of religious freedom as a shield to religious freedom as a weapon.

1. Indeed, even today, the Constitution of the state in which I live, North Carolina, says that “any person who shall deny the being of Almighty God” is disqualified for office. Although still in the state’s Constitution, in 1961 the Supreme Court of the United States struck down such requirements in Torcaso v. Watkins based on a similar clause (article 37), which remains even today in Maryland’s Constitution.

2. Except in the formulaic “DONE in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth” over George Washington’s signature.

3. Point 3 in “Memorial and Remonstrance against Religious Assessments, [ca. 20 June] 1785,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-08-02-0163. [Original source: The Papers of James Madison, vol. 8, 10 March 1784 – 28 March 1786, ed. Robert A. Rutland and William M. E. Rachal. Chicago: The University of Chicago Press, 1973, pp. 295–306.]

4. See https://quoteinvestigator.com/2011/10/15/liberty-fist-nose/ for an amusing exploration on the origins of this adage.