Sweet Land of Liberty?Vol. 27 No. 6 | Sep-Oct 2017
The decline of religious liberty in America.
By Colin Standish
Of the inalienable rights listed in the US Constitution, religious liberty was considered the most important by America’s founders. Yet Americans have experienced an ominous and rapid decline in their religious freedoms. The story of a Laotian immigrant illustrates the point.
“When Laotian immigrant Neng Yang died suddenly at age 23, the Rhode Island medical examiner insisted on performing an autopsy. He overrode the wishes of the man’s [Buddhist] parents, Hmong refugees whose religion views autopsy as an abhorrent mutilation of the body that prevents the spirit from being set free.
“Yang’s parents filed suit, claiming that the ‘forced’ autopsy infringed on their religious freedom. In January 1990, US District Judge Raymond J. Pettine upheld their claim.
“Ten months later when Pettine was deciding how much money the family should be rewarded, the judge announced ‘with deep regret’ and ‘the deepest sympathy to the Yangs’—that the Smith decision [a significant US Supreme Court ruling discussed below] forced him to reverse his ruling.”1
The Yangs’ claim was genuine, according to my brother who spent almost twenty years as a physician in Southeast Asia. Not once did Buddhist relatives of his patients grant permission for an autopsy. What change in the legal environment of the United States forced a rational, fair-minded judge to reverse his ruling on religious freedoms of US citizens?
FIRST, SOME HISTORY
Because many early American colonies failed to provide religious liberties to their citizens, the American founders made extraordinary efforts to protect these freedoms.
In the First Amendment to the US Constitution, the free exercise clause of religion guaranteed religious freedom to all American citizens to serve God according to their conscience. The non-establishment clause guaranteed that the nation would not support a state religion.
The principles of separation of church and state arose from these guarantees. These principles sought to avoid a state-controlled church or a church-controlled state. Nonetheless, American courts have never embraced the fullest meaning of religious freedom intended by the First Amendment. This tendency was probably influenced by America’s heritage of British common law which merely “tolerated” religions differing from the established church of England.
Yet, from 1930 to early 1970, the US Supreme Court gave encouraging evidence that it had broken the shackles of British common law. The following are examples:
1940s—Struck down general laws banning door-to-door soliciting by Jehovah’s Witnesses;
1943—Struck down mandatory “flag salute” laws in public schools because of Jehovah’s Witnesses who refused to salute the symbol of a secular system;
1963—Ruled that Seventh-day Adventists could not be denied unemployment benefits because they refused to work on Saturday;
1972—Exempted Amish children from compulsory school attendance, because the Amish opposed sending their children to school after age 14.
If legislatures enact an exception for a specific religious group, future legislatures could just as easily revoke that exception.
WINDS OF CHANGE
In the last decade of the 20th century, however, the US Supreme Court greatly eroded the free exercise of religion clause of the First Amendment. On April 17, 1990, in Smith vs. the State of Oregon, the Court ruled against members of an American Indian religion that used peyote, an illegal hallucinogenic, in practicing their beliefs. Justice Antonin Scalia in his majority opinion, declared that “when religious rights clash with government’s need for uniform rules, the court will side with the government…. We cannot afford the luxury of ‘striking down laws simply because they limit someone’s religious practice.’” Scalia advised religious adherents to look to the political system, not the courts, for protection. Obviously, small religious groups are most affected by this ruling. America’s political system—by nature—caters to the majority, for it is majorities that make the greatest impact at the ballot box.
Scalia conceded that it would “place at a relative disadvantage those with religious practices that are not widely engaged in…but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is law.”2
In dissenting, Justice Sandra Day O’Connor stated that Scalia’s opinion “is incompatible with our nation’s fundamental commitment to individual religious liberty. In my view, the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility.”3 Justice O’Connor understood the protection of the First Amendment of the Constitution.
In its departure from the intent of the First Amendment’s free exercise clause, Smith vs. Oregon shocked the religious world. The Washington Post called it a “radical departure” from previous rulings protecting religions. It has since dramatically affected all US court rulings involving religion.
SOME CASES IN POINT
Less than a year after Smith vs. Oregon, judicial consequences such as the Yang ruling mentioned earlier became apparent. Ruth Marcus, in the Washington Post, reported its impact on another minority religion: “For more than 15 years, members of the Sikh Religion, who wear turbans, received an exemption from the federal regulation requiring construction workers to wear hard hats.
“Last November , the Occupational Safety and Health Administration lifted the exception. The agency was not responding to reports of injuries but to a Supreme Court ruling on a seemingly unrelated topic.”4 That ruling was Smith vs. Oregon.
A decade later, in anticipating further judicial implications for minority religions, Anjali Sakaria, in the Harvard Civil Rights-Civil Liberties Law Review, questioned, “What happens when a traditional Hindu or Muslim girl, whose religion requires her to cover her legs in public, is required to attend a gym class when the mandatory dress code is gym shorts?”5
In Smith, the US Supreme Court struck a blow to minority religions by holding that the “Free Exercise Clause does not mandate religious exemptions from neutral laws of general applicability.” This leaves the plaintiff one alternative—an appeal to state legislatures to enact exceptions. However, legislatures can offer only religious toleration, never religious freedom. Religious freedom is an inalienable right, which must transcend all legislatures. Further, if legislatures enact an exception for a specific religious group, future legislatures could just as easily revoke that exception.
A BLOW TO FREEDOM OF CONSCIENCE
There is another problem. How would the legislature protect an individual’s conscience? Many individual members of religious organizations have beliefs that vary significantly from those religious bodies of which they are members. Constitutional guarantees are meant to protect an individual’s conscience, not simply the collective conscience of a body of believers.
Anjali Sakaria also wrote that “no earnest Christian is ready to settle for toleration.”6 Only the religious freedom guaranteed by the US Constitution can safeguard an individual’s conscience. The safeguard of the US Bill of Rights and Constitution was to be the legislature. It was to provide inalienable rights that no other court or legislature could diminish.
Thus in America, all high judicial, legislative, and executive appointees swear to uphold the US Constitution. Smith vs. Oregon effectively placed the legislature above the Constitution in deciding that these rights for the nation’s citizens must depend upon the legislatures and not the courts.
Giving precedence to majority religious practices has dramatically affected child custody cases. Here are two cases from the 1990s in which I personally provided pastoral counseling. For protection, names are not provided.
Arizona: A husband and wife had separated and divorced over alleged incestuous approaches by the father toward the two children. The wife, a devout Christian, held principles which included a vegetarian diet and no television in the home. Before the judge ruled on custody, the father and mother were required to undergo extensive psychological evaluation. The test revealed the mother to be well-adjusted, while the father showed evidences of maladaption, deception, and unreliability. Sadly, the husband’s lawyer painted the mother as fanatical and overly strict with her children.
So the judge—no doubt following majoritarian principles—gave custody to the father.
Maryland: A mother with deep Christian principles similar to those in the Arizona case, was, in addition, homeschooling her children. Faced with a custody trial, she was strongly advised by me to hire the best counsel and experts on health and education that she could find. Unfortunately, she did not follow my advice. She too lost custody to a husband of doubtful character.
These rulings represent an increasing number of decisions being made in America’s lower courts. Parents who are in minority church groups which hold high moral principles are increasingly losing custody of their children to parents of questionable morality who are following the crumbling standards of mainline America.
These and other similar decisions are greatly eroding the principles enshrined in the First Amendment. Only as those in the majority of American thought and practice seek to protect the rights of those who are minorities, will there be any hope of reversing this most dangerous national trend.
Constitutional guarantees were meant to protect an individual’s conscience, not simply the collective conscience of a body of believers.
FREEDOM’s HIGHEST FORM
God provided the highest form of religious freedom for all human beings by giving them the opportunity to choose or reject His gift of salvation: “And if it seem evil unto you to serve the Lord, choose you this day whom ye will serve; whether the gods which your fathers served that were on the other side of the flood, or the gods of the Amorites, in whose land ye dwell: but as for me and my house, we will serve the Lord.” Joshua 24:15.
“And Elijah came unto all the people, and said, How long halt ye between two opinions? if the Lord be God, follow him: but if Baal, then follow him.” 1 Kings 18:21.
What can minority religious groups or conscientious individuals do to protect their convictions? First, by God’s grace, we must be the most honest and lovable citizens. Secondly, in contracting marriages, the parties should make sure they are not “unequally yoked together with unbelievers.” 2 Corinthians 6:14. And finally, we must do all in our power to seek ways by which America’s President and the Senate choose Supreme Court justices who will uphold the intent of the First Amendment of the Constitution.
If no significant changes are made in current interpretations of the First Amendment by the US Supreme Court, unjust decisions and persecution will continue to result against minority religions, as courts increasingly support the majoritarian practices of a rapidly degenerating society.
The encouragement to all Christians, however, is recognition that our true freedom—no matter what the circumstances—is always through faith in, and obedience to, Jesus Christ. “Now the Lord is that Spirit: and where the Spirit of the Lord is, there is liberty.” 2 Corinthians 3:17.
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