Posts tagged with: Separation of Church and State

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.”
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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:
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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…)

blaine-standing-leftEleven years ago this week, the Supreme Court handed down a ruling in Locke v. Davey that continues to have a detrimental impact on religious liberty. But the seeds for that ruling were planted 140 years ago, in another attempt to curb religious liberty.

When James Blaine introduced his ill-fated constitutional amendment in 1875, he probably never would have imagined the unintended consequences it would have over a hundred years later. Blaine wanted to prohibit the use of state funds at “sectarian” schools (a code word for Catholic parochial schools) in order to inhibit immigration. Since the public schools instilled a Protestant Christian view upon its students, public education was viewed as a way to stem the tide of Catholic influence.

While the amendment passed by a large majority (180-7) in the House, it failed by a tiny margin (4 votes) in the Senate. Supporters of the amendment, however, pressed the issue at the state level, often making it a prerequisite for statehood. The measure finally found its way into 37 state constitutions, including Washington State.

Fast-forward to 1999, where a Washington high school student Joshua Davey applies for the state sponsored “Promise Scholarships.” According to a press report in 2004:
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IVCF_bannerEarlier today a federal appeals court handed down an important ruling that protects the liberties of religious organizations.

In the case of Alyce Conlon v. InterVarsity Christian Fellowship/USA, the United States Court of Appeals for the Sixth Circuit rejected a plaintiff’s attempt to enforce state and federal gender discrimination laws on one of the nation’s largest Christian campus ministries.

According to the court opinion, Alyce Conlon worked at InterVarsity Christian Fellowship/USA (IVCF) in Michigan as a spiritual director, involved in providing religious counsel and prayer. She informed IVCF that she was contemplating divorce, at which point IVCF put her on paid—and later unpaid—leave. Part of IVCF’s employment policy is that “[w]here there are significant marital issues, [IVCF] encourages employees to seek appropriate help to move towards reconciliation” and IVCF reserves the right “to consider the impact of any separation/divorce on colleagues, students, faculty, and donors.”

When Conlon’s marital situation continued to worsen despite counseling efforts, IVCF terminated her employment. Conlon sued IVCF and her supervisors in federal district court under Title VII and Michigan law. IVCF claimed the First Amendment’s ministerial exception to employment laws.

The Sixth Circuit rejected Conlon’s claims based on conclusions in the Supreme Courts’ ruling in Hosanna-Tabor Evangelical Lutheran Church and School (2012).
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Freedom-of-ReligionThomas Jefferson wanted what he considered to be his three greatest achievements to be listed on his tombstone. The inscription, as he stipulated, reads “Here was buried Thomas Jefferson, author of the Declaration of American Independence, of the Statute of Virginia for Religious Freedom, and father of the University of Virginia.”

Today we celebrate the 229th anniversary of one of those great creations: the passage, in 1786, of the Virginia Statute of Religious Freedom.

Each year, the President declares January 16th to be Religious Freedom Day, and calls upon Americans to “observe this day through appropriate events and activities in homes, schools, and places of worship.” One way to honor the day is to reflect on these ten quotes about religious liberty that were expressed by some of our country’s greatest leaders:

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On The Daily Caller, Acton Research Director Samuel Gregg looks at the connection between economic liberty and religious freedom which, he observes, “has not been so obvious; or at least it wasn’t until cases such as Hobby Lobby’s started making their way through the American court system.” Also not so obvious is how the ever expanding welfare state in many countries — and the growing dependence of some religious charities on state funding — have had a negative impact on the institutional liberty of religious organization. Gregg:

As funding from government contracts begin to make up large portions of a given religious charity’s financial resources, economic reliance on such assistance can easily incentivize such organizations into avoiding any significant conflicts with government officials: including those occasions when such conflict is inevitable if the religious organization is to remain faithful to its core beliefs. It is not unknown for religious organizations receiving or seeking state contracts to downplay their religious identity precisely so they can maximize their chances of receiving such a contract. As George Weigel points it, such organizations can begin to transform themselves into “mere vehicles for the delivery of state-defined and state-approved ‘benefit’.”

It is also true that acceptance of government funding can encourage many people working in religious organizations to view government as their main authority. This should not be surprising. If 80 percent of a religious charity’s income is coming from state financial assistance and government contracts for which religious organizations compete, it would seem that the government effectively controls that religious charity’s purse-strings. And that means the state is well and truly in charge.

Read all of “Economic Freedom And Religious Freedom Are Mutually Reinforcing” by Samuel Gregg on The Daily Caller.

Samuel Gregg, Acton’s director of research, recently wrote about the “complicated relationship” between religious freedom and business. While there may not seem like a natural connection between these two concepts, Gregg points out that, especially recently, we are seeing a number of businesses “impacted by apparent infringements of religious liberty.” He goes on to discuss just how complicated this relationship is:

Until relatively late in the modern era, most Jews in Europe were legally prohibited from formal involvement in political life and barred from serving in particular professions such as law, the civil service, and the military. Throughout Western and Eastern Europe, many Jews consequently gravitated towards commerce and finance as activities in which they were allowed to exercise their talents. To the eternal shame of Christians, the tremendous success of Jews in these areas made them frequent and easy targets for anti-Semitic pogroms (often incited by Christian business rivals) as well as legalized extortions by Christian kings and princes.

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church-sunsetThe first kind of religious freedom to appear in the Western world was “freedom of the church.” Although that freedom has been all but ignored by the Courts in the past few decades, its place in American jurisprudence is once again being recognized.

Notre Dame law professor Richard Garnett explains how we should think about and defend the liberty of religious institutions:

To embrace this idea as still-relevant is to claim that religious institutions have a distinctive place in our constitutional order—and not only a distinctively worrisome or harmful one. It is to suggest that churches are not “just like the Boy Scouts” and that, while they to a large extent function in civil society in the same way and deliver the same Tocquevillian benefits as any number of voluntary associations, they are, in the end, different.

True, it is increasingly difficult, within the boundaries of argument set down by some versions of liberal political theory, to justify, on principled grounds, special treatment for religious liberty. Still, in our history and tradition, “religious” institutions and authorities have acted, and have been regarded, as special and distinct, whether or not “religion” has been understood as neatly separate from “culture,” “conscience,” or “morality.” We live under a written Constitution that “singles out” religion and we inhabit a tradition in which “church” and “state” have, in a special way, cooperated and contended. If it is anachronistic to invoke the freedom of the church, it seems even more ahistorical to deny the distinctive (for better or worse) place and role of religious actors in that tradition, and today.

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hobby_lobby_protest_bible_ap_ftrBefore I try to convince you that Katha Pollitt is dangerously wrong, let me attempt to explain why her opinion is significant. Pollitt was educated at Harvard and the Columbia School of the Arts and has taught at Princeton. She has won a National Magazine Award for Columns and Commentary, an NEA grant, a Guggenheim Fellowship, and a National Book Critics Circle Award.

She is, in other words, the kind of politically progressive pundit whose opinions, when originally expressed, are considered outré — and then within a few months or years, are considered mainstream in progressive circles.

However, in her latest column, “Why It’s Time to Repeal the Religious Freedom Restoration Act,” Pollitt is but a few minutes ahead of the liberal curve.

She begins with the stunningly obtuse claim that, “In the not-too-distant future, it’s entirely possible that religious freedom will be the only freedom we have left—a condition for which we can blame the Religious Freedom Restoration Act of 1993.”

Pollitt is smart enough to know that claim is nonsense. She’s also smart enough to know that there are plenty of people who are gullible enough to believe it could be true.
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