Posts tagged with: Separation of Church and State

0701whitefieldpreachingHow did religious freedom develop in America? It didn’t happen the way most of us were taught in school—whether in elementary school or law school. In fact, notes legal scholar Richard Garnett, the “standard story” about religious freedom in Early America is profoundly misleading:

In my experience, this “standard story” is familiar to most Americans, whether or not they are historians or constitutional lawyers, though lawyers have probably been more exposed to and influenced by it than most. In this account, our sophisticated and “enlightened” Founding Fathers—with far-seeing Virginians like Thomas Jefferson and James Madison in the lead—took special care to write and design a “godless” constitution so as to spare our new political community and experiment from the superstition and strife that, they knew all too well, had ravaged and torn Europe in the preceding centuries. In this story, the First Amendment was crafted and constitutionalized so as to entrench a principle—a “wall”—of church-state separation and ensure a secular “public” sphere, with religion protected, but confined within, the “private” realm.

This story is not true. In fact, America’s revolution and constitution were shaped not only by the Enlightenment but also by the Great Awakening, by preachers as well as pamphleteers. And, as John Witte describes in Religion and the American Constitutional Experiment, the Founding-era arguments about religious freedom under law included not just “Enlightenment thinkers” but also “congregational Puritans,” “Free Church Evangelicals,” and “Civic Republicans.” It would not have been difficult to identify a consensus in favor of the liberty of religious conscience and a distinction between religious and political authority and office, but this consensus obtained at a high level of generality and allowed for variation and disagreement with respect to many—indeed most—questions and applications. And, it seems very unlikely that the First Amendment was widely seen as embodying, let alone entrenching, much beyond an aversion to a nationally established church, backed and propped up by legal coercion, of the kind they knew existed elsewhere. Hardly anyone, if anyone, thought that the ratification of the First Amendment meant that something called “religion” was now legally barred from the “public” or that, as a result of that provision, the constitutional validity of laws and policies was contingent on a judicial determination that they did not rest on “religious” beliefs or motives.

Read more . . .

dignitatis_humanaeFifty years ago today, on December 7, 1965, Pope Paul VI promulgated the Declaration on Religious Freedom (Dignitatis humanae). This document produced by the Second Vatican Council clarified the Catholic Church’s views on religious liberty, changed the way the Church interacted with states, and helped foster ecumenical relations with other faith traditions.

Since the release of Dignitatis humanae, the importance of defending religious freedom has become even more necessary. As Archbiship Charles J. Chaput has said, “In some ways, the [Declaration on Religious Freedom] is the Vatican II document that speaks most urgently to our own time. The reason is obvious. We see it right now in the suffering of Christians and other religious believers in many places around the world.”

Here are six key quotes from the document:

Blog author: jcarter
Wednesday, July 1, 2015

hist-ff-first-amendment-7195911“The U.S. Supreme Court’s decision to make same-sex marriage a constitutional right under the Fourteenth Amendment,” says Zack Pruitt in today’s Acton Commentary, “will generate huge conflicts—in some cases unforeseen—with the First Amendment right to the free exercise of religion.” Fortunately, some legislators are already attempting to do something to prevent such conflicts.

Even before the recent Supreme Court ruling, Senator Mike Lee (R-UT) and Rep. Raúl Labrador (R-ID) introduced legislation to clarify and strengthen religious liberty protections in federal law, by “safeguarding those individuals and institutions who promote traditional marriage from government retaliation.” The First Amendment Defense Act (S. 1598, H.R. 2802) would prevent any federal agency from denying a tax exemption, grant, contract, license, or certification to an individual, association, or business based on their belief that marriage is a union between a man and a woman. For example, the bill would prohibit the IRS from stripping a church of its tax exemption for refusing to officiate same-sex weddings.

The U.S. Commission on International Religious Freedom (USCIRF) has issued its 2015 annual report on religious liberty around the world. In their report, the USCIRF documents religious freedom abuses and violations in 33 countries and makes county-specific policy recommendations for U.S. policy. One country worthy of particular attentions is Afghanistan.

religiousfreedomreport2015For the past nine years USCIRF has designated Afghanistan as a country of particular concern, a country where the violations engaged in or tolerated by the government are serious and are characterized by at least one of the elements of the “systematic, ongoing, and egregious” standard. As the report notes,

Afghanistan’s legal system remains deeply flawed, as the constitution explicitly fails to protect the individual right to freedom of religion or belief, and it and other laws have been applied in ways that violate international human rights standards.

Notice that the country has been on the list since two years after the adoption of their new constitution—a constitution that the U.S. helped to create.

In 2004, after U.S. military and allied forces overthrew the Taliban, American diplomats helped draft a new Afghani constitution. Many people around the world were hoping the result would be similar to the constitution of Turkey—or at least be distinguishable from the constitution of Iran. Instead, what was created—with the help of the U.S. government—was an Islamic Republic, a state in which “no law can be contrary to the sacred religion of Islam.”

While the White House issued a statement calling it an “important milestone in Afghanistan’s political development,” the USCIRF had the courage to admit what we were creating: Taliban-lite.

scaliaOver the past hundred years few judges have been able to match the wit, wisdom, and intellectual rigor of Supreme Court Justice Antonin Scalia. During his thirty year career he has been an indefatigable champion of originalism (a principle of interpretation that views the Constitution’s meaning as fixed as of the time of enactment) and a vociferous critic of the slippery “living constitution” school of jurisprudence. When future historians assess his career Scalia will be viewed as one of the most thoughtful, principled, and important jurists of his era.

But even a legal genius can produce a disastrous opinion, and Scalia delivered his worst twenty-five years ago this week in Employment Division v. Smith. As Michael Stokes Paulsen explains, this ruling has “proven to be one of the most devastatingly long-term harmful Supreme Court constitutional decisions of the past half century.”

indiana-religiousfreedomOver the past few weeks the American media has revealed two important truths: (1) Religious freedom has become a surprisingly divisive and controversial topic, and (2) very few people understand what is meant by the term “religious freedom.”

Is religious freedom merely the liberty to attend worship services? Is the freedom limited to internal beliefs or does it also apply to actions taken in the public square? Should religious freedom ever trump other societal goods?

Joseph Backholm of the Family Policy Institute of Washington examines those questions and explains what religious freedom entails:

RFRA1Last week, Indiana Governor Mike Pence (R) signed his state’s Religious Freedom Restoration Act. Social media went a bit, well, bonkers. Hillary Clinton tweeted, “Sad this new Indiana law can happen in America today. We shouldn’t discriminate against ppl bc of who they love #LGBT.” The CEO of SalesForce, headquartered in Indiana, says they will pull out. Tim Cook, the chief executive of Apple, has called religious freedom laws “dangerous” and likens them to Jim Crow laws.

What’s all of this about?

First, the federal Religious Freedom Restoration Act (RFRA) was signed by then-President Bill Clinton in 1993. This act re-instated what is known as the Sherbert Act, in which the Supreme Court:

…set out a three-prong test for courts to use in determining whether the government has violated an individual’s constitutionally-protected right to the free exercise of religion. (more…)