Is Religious Liberty Truly In Peril? A Warning.

In a genuine exchange of ideas, viewpoints, and divergent worldviews—the arguments are very revealing.

The reality is that religious liberty is in peril in the United States and we have known it for a long time. This is one of the reasons why in the 1990s, Congress passed the Religious Freedom Restoration Act with overwhelming support from both parties and in both houses of Congress. The bill’s vast public support made it noncontroversial. Now, however, one of the most cherished liberties in American history is threatened by increasing secularization and the sexual revolution.

 

Is religious liberty truly in peril?

That question was debated recently in dueling articles published in the Wall Street Journal. David French, senior writer for National Review magazine argued that religious liberty is indeed endangered in America. Marci Hamilton, a former clerk for retired Supreme Court Justice Sandra Day O’Conner, who now serves as a professor at the University of Pennsylvania, makes the counter argument. It was a genuine exchange of ideas, viewpoints, and divergent worldviews—the arguments are very revealing.

David French made his case by tracing back to April 28, 2015, which marked the oral arguments before the Supreme Court regarding Obergefell v. Hodges. The Court’s decision in Obergefell would legalize same-sex marriage across the country. The most ominous and telling moment in those oral arguments came during an exchange between Solicitor General Donald Verrilli, Jr. and Justice Samuel Alito.

French wrote, “Justice Samuel Alito asked President Barack Obama’s Solicitor General Donald Verrilli, Jr. whether constitutional recognition for same-sex marriage would lead to stripping federal tax exemptions from religious colleges that oppose gay marriage, in the same way that federal law strips tax exemptions from colleges that oppose interracial marriage or interracial dating. Rather than immediately answering, “no,” the Solicitor General of the United States responded, ‘It’s certainly going to be an issue.’”

Indeed, it will be and has proven to be an issue, and not just for tax exemptions. It will be an issue when it comes to any form of social recognition. The big issue at stake is whether Christian colleges will be able to continue to operate under any semblance of the Christian faith. Moreover, the issues have spread far beyond the college campus—including ministries, adoption and foster care agencies, religious organizations and even hospitals that are now confronted with the realities of diminishing respect for religious liberty.

In reflecting on the oral arguments, French eloquently states: “And just like that, millions of American Christians could easily and quickly imagine a future where the law held their traditional, orthodox religious beliefs—the beliefs of the Catholic Church and every significant evangelical denomination in America—in the same regard as it held the views of vile racists. But Christians who had been paying attention knew of this risk well before Obergefell. Christians who had been paying attention had seen a trend where legal activists at all levels of government had been aggressively expanding their regulatory and ideological attacks on religious liberty.”

The reality is that religious liberty is in peril in the United States and we have known it for a long time. This is one of the reasons why in the 1990s, Congress passed the Religious Freedom Restoration Act with overwhelming support from both parties and in both houses of Congress. The bill’s vast public support made it noncontroversial. Now, however, one of the most cherished liberties in American history is threatened by increasing secularization and the sexual revolution.

French highlights the chief threat against religious liberty, namely, the administrative state. The vast bureaucracy of government can effectively channel a political agenda set out to malign and reduce religious liberty without any legislative or congressional deliberation. Consider the infamous Obama contraception mandate. The administration forced its moral agenda through the bureaucratic powers of the Department of Health and Human Services. With one executive mandate, the federal government demanded that religious employers violate conscience, demanding that they provide contraceptive health coverage (including some forms which may be abortifacients) in direct violation of their own consciences. This encroachment led a group of nuns known as the Little Sisters of the Poor to file suit in federal court, precisely because of the violation of Christian conscience.

That episode marked a calculated and deliberate attempt by the administrative state to dismantle the liberties and rights secured through religious freedom. President Obama could have accomplished the same policy measure without violating the consciences of Christian ministries or companies managed from Christian principles. The threat of the administrative state, furthermore, extends beyond health-coverage mandate. The same kind of policies have come from the Department of Justice or the Department of Education. Just about every dimension of the vast administrative state presents such dangers.

French argues, “The list could go on, but more disturbing than the individual cases is the deep inversion of America’s constitutional principles that has empowered this legal assault. If governments ultimately prevail in these efforts, the resulting precedents would upend the constitutional order, rendering religious Americans even more vulnerable to future legal attacks, like the threatened loss of tax exemptions for Christian educational institutions.”

French then turns to the Bill of Rights, which enshrines religious liberty as a core American liberty. He rightly argues that U.S. constitutional provision in the Bill of Rights does not merely limit the federal government from establishing a religion, but also guarantees the free exercise of religion.

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