What is the Future of Religious Freedom in the United States?
A Moment Magazine and Religious Freedom Education Project Symposium
222 Years Ago, The First Amendment to the Constitution Declared: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…
Under the First Amendment of the Constitution, religious freedom in the United States has two components: the Establishment Clause, which prevents the government from advocating a particular religion; and the Free Exercise Clause, which ensures freedom of belief and worship. Despite these robust protections, perhaps the most of any country in the world, religious freedom in the United States has always been fraught with controversy: What happens when religious practice conflicts with secular law? How much religion should be allowed in the public sphere? What if religious liberty leads to discrimination against minority groups? In this way, religious freedom has always been a balancing act, and the constant recalibration of this balance has largely played out in the courts. Two important Supreme Court cases in recent decades, Sherbert v. Verner (1963) and Employment Division v. Smith (1990), highlight this ongoing battle. Although the first case strengthened religious liberty by listing a set of criteria the government had to meet before limiting free exercise, the second rolled these criteria back, making it easier for the government to restrict religious practice when it conflicts with the law. The Employment Division decision—delivered by Justice Antonin Scalia—still stands, and shapes much of today’s discussion about religious liberty, from birth control to gay rights. This symposium—which includes 11 thinkers who address issues facing Jews, Protestants, Catholics, Muslims and non-believers—explores the contested issues looming on our horizon and examines where religious freedom in the United States is heading in the near future.
I’m deeply worried about the future of religious freedom. We’re the most religiously diverse country in the world, and we have a tradition of religious liberty that’s very strong. But the deep disagreement and conflict over sexual morality is putting that tradition under enormous pressure. People in the pro-choice movement, the gay rights movement and the women’s movement are increasingly coming to see conservative religious bodies as their enemy. The fight over same-sex marriage and now over contraception is aggravating that. They see religion messing with their fundamental liberties, so they feel, “Why should I respect the liberty of the people who are causing problems for me?” I worry that half or more of the population is being turned away from religious liberty because of these issues.
With respect to contraception, most people don’t even understand the religious objection—it doesn’t make sense to most Americans. At the same time, I think the churches are overplaying their hands. They’re not just insisting on liberty for themselves; they’re insisting on regulating the sex lives of other people. And people on the other side not only want liberty for themselves; they want religious people to be required to participate, to provide contraception even in Catholic institutions. Both sides are intolerant, and neither side is interested in a “live and let live” attitude. There are solutions: We can let same-sex couples marry, protect the constitutional right to abortion, let everybody have access to contraception and not require churches or religious believers who conscientiously object to have to provide these things. It’s not that hard. But both sides seem to want the total win in which all of the cost of the conflict is put on the other side.
Douglas Laycock is a professor of law and of religious studies at the University of Virginia. He recently published Religious Liberty, Volume I: Overviews and History, and Volume II: The Free Exercise Clause.
Charles C. Haynes
The United States is now the most religiously diverse nation in the world and, among developed nations, one of the most religious. At the same time, a growing number of Americans—perhaps as many as one-fifth, according to some polls—say they have no religious affiliation. As our public square becomes increasingly crowded with many different religious and non-religious voices wanting to be heard, the vitality of our democracy depends on a renewal of our commitment to the religious liberty principles of the First Amendment.
Courts and legislatures will, of course, continue to play a central role in defining religious freedom in the United States. But beyond litigation and legislation—and perhaps even more important—will be the commitment to religious freedom in the minds and hearts of the American people. Only when average citizens meet the challenges of diversity by standing up for the rights of others, including those with whom they disagree, will religious freedom thrive and expand in local communities across America.
Nowhere is it more important to prepare citizens to uphold religious freedom than in our public schools, the primary institutions charged with enabling Americans to live together as one nation of many peoples and faiths. In addition to teaching the First Amendment, schools must model the rights and responsibilities of religious freedom and the other freedoms protected by the First Amendment.
Contrary to culture war mythology, the U.S. Supreme Court did not “kick God out” of the public schools with the 1960s decisions on school-sponsored prayer and Bible reading. Although some schools misappropriated these decisions by excluding all student religious expression (and some others continued to violate the First Amendment by privileging the majority faith), many, if not most, public schools today are finally getting religious freedom right.
In my work with schools across the country, I find that growing numbers of school officials now understand the constitutional role of religion in public schools: Students have the right to express their faith during the school day as long as they don’t disrupt the school or interfere with the rights of others. And teachers may teach about religion, where appropriate, as part of a good education.
To strengthen the American arrangement in religious freedom for the future, educators must work to protect the religious freedom rights of students while simultaneously ensuring that public schools remain neutral among religions and between religion and non-religion. Striking this balance—a balance required by the First Amendment—is how public schools can and should model religious freedom principles during the school day and throughout the school culture.
If we get religious freedom right in public schools, then we will get it right in the public square of America.
Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum in Washington, DC, and is senior scholar at the First Amendment Center.