1 Religious Liberty in a Secular State Religious freedom is an essential part of this country. Since before its founding, this land was a refuge for people seeking religious liberty. However, as a result of a changing political and social landscape, that liberty is being threatened. The conflict used to be mainly between different religious sects, whereas now the conflict is mostly between religious followers and those who do not affiliate with any specific sect. America is a religiously pluralistic country, with increasing numbers of adherents to minority faiths and a significant and growing number of people who claim no religious affiliation (Montgomery 11). This increasing nonreligious population has raised a loud voice in opposition to many Judeo-Christian values by arguing that religious freedom is an excuse for discrimination. Those traditional values and the freedom to exercise and practice them are what have made up the very fabric of the moral code of the United States of America. This accusation of discrimination, while one sided, warrants discussion as to how to balance opposing religious and personal beliefs in our country in a civil manner. Beginning in 1630 as many as 20,000 Puritans emigrated to America from England to gain the liberty to worship God as they chose (The Library of Congress). These people left their homes and sailed across the ocean so that they could exercise their religious beliefs without interference from the government. The men who fought the Revolution fought a war against a country in which the head of state was the head of the church. Knowing well the history of religious warfare that led to America s settlement, they clearly understood both the dangers of that system and of sectarian conflict (Davis). In newly independent America, there was a crazy quilt of state laws regarding religion. In Massachusetts, only Christians were allowed to hold public office, and
2 Catholics were allowed to do so only after renouncing papal authority. In 1777, New York State s constitution banned Catholics from public office (and would do so until 1806). In Maryland, Catholics had full civil rights, but Jews did not. Delaware required an oath affirming belief in the Trinity. Several states, including Massachusetts and South Carolina, had official, state-supported churches (Davis). On September 25, 1789, the First Congress of the United States proposed [twelve] amendments to the Constitution (National Archives). Ten of the twelve amendments were ratified at the end of 1791 and constitute what we now know as the Bill of Rights. The United States Constitution touches on religion in only one place. Article six states, no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States (National Archives). Since this is the only mention of religion in the constitution, it was necessary that the Bill of Rights be created and establish the scope and understanding of religious freedom in our country. The first amendment reads, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances (National Archives). This portion of the Bill of Rights that deals with religion has been identified as the Establishment and Free Exercise Clauses. The purpose and meaning of the Establishment Clause is highly debated. Some argue that it should be interpreted that government must not be partial to a certain church or religion. Others say that its purpose is to keep church and state separate. James Madison s original proposal for a bill of rights provision concerning religion read: The civil rights of none shall be
3 abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed (Cornell). Civil rights are limits on the power of the majority to make decisions that would benefit some at the expense of the minorities. In other words, civil rights guarantee equal citizenship, and they mean that citizens are protected from discrimination by majorities. The other First Amendment right protecting religion forbids the government from enacting laws prohibiting the free exercise of religion. Notice the word exercise. It protects the right to exercise religion in our daily lives not just to believe whatever we like or to worship privately in our homes and chapels, but to live openly and freely according to our faith as long as we respect the fundamental rights of others (Christofferson). Religious liberty in this active sense - the right of individuals and communities to pursue religious truths and to live in accord with the obligations that ensue - lies at the very core of what it means to be human. It is also one of the linchpins of stable, durable self-governance (Bradley 193). With the importance of religious freedom established, an exploration of current and trending issues may now be conducted. The Pew Research Center used data from the 2014 Religious Landscape Study to create a religious demographic profile of the U.S. if the country were made up of exactly 100 adults If the U.S. contained just 100 adults, 25 would be people who identify with evangelical Protestant denominations, 23 would be religiously unaffiliated and 21 would be Catholic. Just two
4 would be Mormon, two would be Jewish and one would be Muslim. (Sandstrom & Alper). In April of this year, in Mississippi, Gov. Phil Bryant signed a bill that protects businesses and religious groups from punishment if they deny services such as counseling, wedding planning and adoption support to lesbian, gay, bisexual and transgender people when it's based on sincerely held religious beliefs or convictions (Sanchez). Some call it discrimination while others claim it protects religious freedom. These opposing views are affecting decisions that are currently being made regarding same-sex marriage, abortion, adoption, immigration, and so forth. Recently it has become popular to argue that the freedom of religion is really only the right to worship rather than the right to freely exercise your faith in your daily life as if religion should be kept in the closet or some other private place (Christofferson). Though imperfectly applied, part of the promise of freedom of religion has been the ability to practice/exercise one s religious convictions in all areas of one s life. In his 2006 Speech on Faith and Politics, President Obama stated, to say that men and women should not inject their "personal morality" into public policy debates is a practical absurdity. Our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition. However absurd it is to say that people should keep their personal morals out of politics, it is crucial that religion not be the only motivator of one s political actions. For example, if one was opposed to abortion on religious grounds, before he attempts to persuade the public opinion and pass a law against it, he would have to explain why abortion violates some principle that is accessible to people of all faiths, including those with no faith at all (Obama). Religion alone
5 can motivate personal and private actions, but in public or political life -amidst the changing demographics of believers versus nonbelievers- the primary, driving force for change should be desire for the common good. The conflict, however, lies in that the desire for the common good has begun to infringe upon personal rights. It should not be illegal for someone, on the grounds of religious belief, to decline to provide services or accommodations to an individual or group that violate their conscience. As long as said services and accommodations are not necessary for the physical safety and medical needs of the individual, the government should have no power to mandate that the individual be provided service. For example, it would be wrong to let someone die in the ER because of religious differences. As a society, we value life above all else. The wedding industry (which does not involve life or death consequences) includes officiants, bakers, caterers, wedding planners, etc. Some business owners who have declined to provide services to clients and their events on the premise that the clients events wholly violate their conscience have been ostracized and persecuted for their dissent. In the case of same-sex couples seeking wedding services, if there are other people/businesses nearby that are willing to provide services to same-sex couples, then it should not be that much of a problem. After all, the same-sex couple is not being denied the services because of their beliefs or because of their sexual orientation, but because their actions may be regarded by some as immoral, and individuals have the right to exercise their freedom of religion and act upon their conscience and choose not to participate in activities that would violate it. Even if there were not other services readily available, individuals and businesses still have the right to refuse their services if doing so does not violate a fundamental right of another. If an individual has strong convictions
6 against a certain behavior or action, he should not be coerced by the government to participate in said action or behavior. Consider a baker or cake decorator refusing to make a cake for a same-sex wedding. Perhaps he does not want to do anything that would appear to endorse or contribute to the wedding which goes against his personal beliefs. Should he choose to refuse his service to the couple, do his actions constitute discrimination? Has he violated the fundamental rights of the prospective customers? Has he done any wrong other than cause someone some frustration and embarrassment? As these two emotions are a very ordinary part of living on a planet with over seven billion other people, they do not seem add up to an injustice valid enough to bring before a court, much less the Supreme Court. The government s job is not to protect feelings. Its job is to protect fundamental rights, one of which is the freedom to exercise one s religion. While individuals -specifically business owners- should have the freedom to act in accordance with their beliefs, customers and clients must have the right to boycott. A natural consequence of refusing service to prospective customers is that the individual s reputation could be tarnished and they may receive less business than if they had not denied those services. In situations like these, individuals and business owners must weigh the opportunity costs against their conscience and decide what to do. This decision does not fall under the jurisdiction of the government, but rather under the jurisdiction of the individual, as this is a basic civil right. Yet to be addressed is the argument that arises by proponents of the fourteenth amendment. The first section of the amendment states: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any
7 person within its jurisdiction the equal protection of the laws (National Archives). This means that the government cannot make laws that infringe upon the rights of its citizens. The amendment does not reference discrimination, and neither does the constitution. So where does the term come from in the debate against religious freedom? Title VII of the Civil Rights Act of 1964 forbids employers from discriminating against applicants and employees on the basis of race, color, religion, sex, and national origin (NOLO). Firstly, this usage assumes that discrimination is wrong, but is it? Discrimination is another word for discernment, and for choosing and acting in accord with or with reference to a particular criteria It is not discrimination that is wrong; instead, it is wrongful discrimination that is wrong (Sarat). Using this definition as a guide, it can be inferred that discrimination based on race, color, religion, sex, and national origin should be considered wrongful discrimination. Secondly, the Civil Rights Act of 1964 is specific to employers discriminating against applicants and employees; it says nothing regarding employers, business owners, or individuals discriminating against prospective customers. While this does not condone discrimination, it acts as evidence that the government has no established jurisdiction over how individuals interact one with another. Doing so would go against the very principles that this country was founded on: it would be an infringement upon the liberty that every human being is endowed with by their Creator. While the scope of this paper has so far dealt with the United States, it is fitting to expand that scope to include the Universal Declaration of Human Rights. Drafted by representatives with different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 as a
8 common standard of achievements for all peoples and all nations (United Nations). The first article states that all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood (United Nations). If all the world acted in accordance with these statements, it would seem that the majority of the current problems that plague mankind would be quelled. Right now, intolerance is the root of many social issues. It is intolerance that leads to alienation, oppression, and hate. Despite the often stark differences between believers and nonbelievers, to coexist peacefully and flourish as a society, they must set aside their differences and learn respect for one another. After all, respecting someone s belief does not mean that one must agree with the belief. Instead, it means that one accepts that someone holds the belief and acknowledges that there must be some merit to it. At the Freedom Festival Patriotic Service earlier this year, Elder D. Todd Christofferson said, respecting religious freedom means tolerating religious beliefs, speech, and practices we disagree with. That is the price of asking others to respect our own freedoms (Christofferson). Just as the believer demands that the nonbeliever respect his right to exercise religion in daily life, the believer must in turn respect the nonbeliever's right to believe what he may and act according to the dictates of his own conscience. If we cannot do this, we will ultimately regress to an era of segregation.
9 Works Cited America s Founding Documents. National Archives. https://www.archives.gov/founding-docs. Accessed 18 Nov. 2016. Bradley, Gerard V. Challenges to Religious Liberty in the Twenty-first Century. Cambridge: Cambridge UP, 2012. Print. Christofferson, D. Todd. Religious Freedom-A Cherished Heritage to Defend. Mormon Newsroom. June 26, 2016. http://www.mormonnewsroom.org/article/religious-freedom%e2%80%94a-cherished-heri tage-to-defend CRS Annotated Constitution. Legal Information Institute. Cornell University Law School. https://www.law.cornell.edu/anncon/html/amdt1afrag1_user.html#amdt1a_hd7. Accessed 18 Nov. 2016. Davis, Kenneth. America s True History of Religious Tolerance. Smithsonian.com. October 2010. http://www.smithsonianmag.com/history/americas-true-history-of-religioustolerance-61312684/. Accessed 18 Nov. 2016. "Federal Antidiscrimination Laws." Nolo.com. NOLO, https://www.nolo.com/legal-encyclopedia/federal-antidiscrimination-laws-29451.html. Accessed 15 Dec. 2016. Montgomery, Peter. 12 Rules for Mixing Religion and Politics. People For the American Way Foundation. http://www.pfaw.org/sites/default/files/12-rules-report.pdf. Accessed 4 Nov. 2016. Obama, Barack. Obama s 2006 Speech on Faith and Politics. The New York Times. 28 June
10 2006. http://www.nytimes.com/2006/06/28/us/politics/2006obamaspeech.html. Accessed 28 November 2016. Religion and the Founding of the American Republic. The Library of Congress. https://www.loc.gov/exhibits/religion/. Accessed 18 Nov. 2016 Sanchez, Ray. Why the onslaught of religious freedom laws? CNN. 7 April 2016. http://www.cnn.com/2016/04/06/us/religious-freedom-laws-why-now/index.html. Accessed 13 Nov. 2016. Sandstrom, Aleksandra, and Becka A. Alper. If the U.S. Had 100 People: Charting Americans Religious Beliefs and Practices. Pew Research Center. 16 Nov. 2016. www.pewresearch.org/fact-tank/2016/12/01/if-the-u-s-had-100-people-charting-american s-religious-beliefs-and-practices/. Accessed 18 Nov. 2016. Sarat, Austin. Legal Responses to Religious Practices in the United States: Accommodation and Its Limits. Cambridge: Cambridge UP, 2012. Print. "Universal Declaration of Human Rights." United Nations. http://www.un.org/en/universal-declaration-human-rights/. Accessed 15 Dec. 2016.