What Is Religious Freedom?

Last week, America had a rigorous debate over religious freedom. Just in case you crawled into a cave for lent and are now emerging from isolation, I’ll catch you up.

First, Indiana passed a law called the Religious Freedom Restoration Act (RFRA). It mirrored a federal law that has been in place since 1993 which states that government must meet a very high standard before doing things that burden the free exercise of religion.

Fearing that it would create room for business owners not to be part of same-sex weddings, the tolerance mob threw themselves to the ground in unison and began convulsing…for days. Apple threatened to stop doing business in Indiana because of their “discriminatory” laws despite recently opening stores in Saudi Arabia, where homosexuality is punishable by flogging, imprisonment or execution.

Washington’s Governor Jay Inslee ordered a ban on state travel to Indiana despite recently taking a trip to China. Late last week he also had the communist Chinese flag flown on the state capitol grounds.

Connecticut’s Governor Dan Malloy also issued a travel ban to Indiana despite the fact that his state has a RFRA that is broader than the one passed in Indiana.

A reporter from an ABC affiliate in South Bend, Indiana traveled 30 miles to the town of Walkerton to search for business owners who didn’t support same-sex marriage. Inside Memories Pizza, they discovered a 21 year-old girl who, when asked, said she supported the new law. She explained that while the business would never decline serve a person who identified as gay, she thought they would decline to cater a gay wedding because of their beliefs about marriage.

Like that’s going to be an issue.

You pretty much lose your gay card if you have your wedding catered with pizza.

Still, once word got round that there’s a bigot in them there woods, the mob grabbed their torches and pitch forks and temporarily left their ivory towers to protest this monument to intolerance because indignation is what they do. The business was forced to close (hopefully, temporarily).

While the little businesses were being shut down, the big businesses started calling the politicians who promised to do whatever was necessary to keep the campaign contributions coming. In the end, the politicians passed a “fix” which was really a “break”. It clarified that if there is ever a conflict between religious liberty and sexual liberty that sexual liberty would win.

No longer are courts allowed to balance the competing interests of people who identify as gay with the people who have strong beliefs about marriage they are unwilling to compromise. In Indiana now, gay beats God. Every time.

As the debate raged, one thing became clear. Everyone says they believe in religious freedom, but there are very different understandings of what that means.

As one post on my social media feed stated, “Religious freedom is about the right to worship how you want on your own time.” Lots of people “liked” it.

But is it true? Is religious freedom about church and the right to say your prayers?

The American idea of religious freedom is rooted in the First Amendment. “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof…”

Those eager to take a narrow view of religious freedom often cite Reynolds v. the United States when the Supreme Court said, “Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices.”

This seems to suggest that the government can control our actions, even those we say are “religious.”

But that quote, and that case, is far from the end of the story.

In fact, it was the beginning story. Literally.

Reynolds, a case from 1878, was the first time the Supreme Court considered what the “free exercise” of religion meant. In that case, they took a narrow view of religious freedom because they wanted to ban polygamy and Mormons were arguing that the First Amendment protected their right to multiple wives.

Strangely, this 140 year-old case in which the conservatives of the day banned polygamy is now being used by modern day leftists to force today’s conservatives to celebrate same-sex weddings.

However, after Reynolds, the Supreme Court abandoned their own precedent and greatly expanded their understanding of what religious freedom was.

Jehovah’s Witnesses were acknowledged to have the right to pass out literature (Schneider v. Town of Irvington, 1939) and refuse to cite the pledge of allegiance (West Virginia State Board of Education v. Barnette, 1943). Seventh-Day Adventists could not lose unemployment benefits for declining to work on Saturday (Sherbert v. Verner, 1963) and the Amish could not be bound by compulsory school laws that conflicted with their beliefs (Wisconsin v. Yoder, 1972).

In these cases, the Supreme Court clarified that if government is going to burden religious freedom, they must: (1) have a compelling reason and (2) use the least restrictive means possible.

It wasn’t until Native American’s became involved that the Supreme Court moved away from strong protections for religious freedom. In 1988, the court ruled that it did not violate the law to build a road through Native Americans’ sacred lands (Lyng v. Northwest Indian Cemetery Protective Ass’n) and then in 1990 ruled that the government could stop them from using peyote in their religious ceremonies (Employment Division v. Smith) as they had done for thousands of years.

Curiously, building a road through sacred lands was not illegal because it did not “coerce individuals into acting contrary to their religious beliefs,” though that is exactly what is being attempted now.

In these cases, the court didn’t just change the outcome, they changed the test.

Instead of requiring the government to have a compelling reason and use the least restrictive means possible, the Court said the government needed only to prove that their laws were “neutral laws of general applicability.”

In other words, “everyone was required to eat the pork, so you Jews have no right to complain about being targeted.”

This is a much lower standard that disrespected the religious freedoms of everyone, not just the Native Americans who were impacted in these cases.

In recognition of this fact, Congress responded to the Supreme Court’s decision by passing the Religious Freedom Restoration Act (RFRA) which restored the standard that existed prior to 1990. It passed Congress almost unanimously and President Clinton signed it in 1993.

Once again, religious freedom received the highest protections we give to fundamental rights.

Since then, RFRA has been used to defend: (1) the rights of a Lipan Apache leader to own eagle feathers; (2) a Sikh devotee’s right to carry a kirpan (an emblem resembling a small knife with a blunt, curved blade) to his job at the IRS; and (3) allowed a kindergartner to enroll in kindergarten despite a policy that a boys hair should be shorter than the collar.

What’s the point of all this?

Religious freedom has always been about much more than “the right to worship how you want on your own time.”

“But not in your business”, they say.

While the law does treat businesses and individuals differently in many ways, it has long recognized that businesses do not exist independent of the people who own them. And those people still have rights.

This is why courts have acknowledged that corporations have free speech rights, the right to be free from unreasonable search and seizure, and even a racial status. After all, you can’t have a minority owned business if the business doesn’t take on some of the characteristics (and resulting protections) of its owner.

If a business can be Hispanic, can it not also be Catholic, Jewish, or Muslim?

Unfortunately, for those who are working hardest to destroy the individual freedoms of Americans, none of this matters.

Things like legal precedent and the free exchange of ideas are simply roadblocks to a more tolerant world.

If they can just stop you from “discriminating”, then the world will become more tolerant. The fact that they have to be exceedingly intolerant in order to make the world more tolerant is lost on them because they have good intentions.

But it should not be lost on you.

31 replies
  1. Wendy Wright
    Wendy Wright says:

    A business owner (large or small business) should serve everyone equally. Hiding behind “religious freedom” to judge people who are different from you is not only morally wrong, it is against Jesus’ teachings “judge not, lest you be judged.” If you put any other category in place of “gay marriage” or “homosexual”, the judgement becomes discriminatory. A person could have a religious belief against short people, tall people, people with mental impairments, fat people… We cannot discriminate against people who are different from us or hold different beliefs. If a business owner wants to discriminate, then he/she should not be in business, but should be a mail carrier. But wait, the mail carrier might decide not to deliver mail to people with whom he/she disagrees. Discrimination is discrimination. Please do not use “religious freedom” to discriminate and cause harm to others who disagree with you.

    Reply
    • granniedahn
      granniedahn says:

      Wendy, If you personally have no religious convictions, it would be impossible to understand those who do, or accurately judge them. The conscience of a believing Christian who get’s an “inner check” about not participating in something that personally goes against their sacred beliefs, should be respected. The comparisons you have made are basically trivial, ridiculous analogies that don’t in the least bit apply to the Christian Faith or Religious Freedom… Protecting religious liberty is very important. If I were to take your line of logic….it would follow that someone could marry their dog or their daughter or have multiple wives…it would follow that we need to condone any kind of behaviors and support them with our business endeavors regardless of our personal convictions. It’s important to understand the effort that is being made in the issue of Religious Freedom is to attempt to nullify the Christian Faith and those who hold to sacred beliefs who choose not to participate in something they deem ungodly. (even if they own a business) I’m hoping the American people can understand the implications here. I’m so thankful the Supreme Court could rule in favor of Hobby Lobby’s convictions concerning abortion and life at conception issues. This is really an important moment in History for those in this country who practice their Christian beliefs concerning the sanctity of marriage and human life.

      Reply
    • Flash
      Flash says:

      Wendy, you represent yourself as this incredibly tolerant, accepting person who honestly believes that people with convictions (often called “religious”) are narrow, bad people. But pause just for a minute and listen to yourself. Don’t you see that you have convictions too? And yet, for you and so many like you, you fail to see that you are imposing your convictions on the rest of us. It seems you really are in favor of religious freedom aren’t you?

      Reply
    • Jenny
      Jenny says:

      There is a principle which is a bar against all information, which is proof against all argument, and which cannot fail to keep man in everlasting ignorance. That principle is condemnation before investigation. Edmund Spencer

      Clearly you are making a judgement on something you know little to nothing of. This has nothing to do with judgement or morals. You are quoting the Bible out of context which is what most anti-Christians do to qualify their immoral thoughts and actions.

      Reply
  2. Annonymus
    Annonymus says:

    The new LGBT rules for society are:
    1) You will think the way we think.
    2) You will believe what we believe
    3) You will endorse what we endorse.
    4) If you do not, we will use the power of the state to punish you.
    This same list could also be used to define fascism. We are now living in a fascist society where liberals and LGBT are in control.

    Reply
  3. Saint John the Baptist
    Saint John the Baptist says:

    Scragsma: Um, you are totally wrong about the Bible. God makes it clear His word is eternal and applies to everyone at all times throughout history. And by the way, the history in the Bible is history as in the way we now think of history. Rick Wilson: I want ‘decency and fairness in public’ also. That includes respecting my First Amendment rights as a Christian to refuse to participate in events the Bible states are immoral (read: wrong). Tolerance is a two way street, amigo.

    Reply
  4. Moki
    Moki says:

    I just went through several days, off and on, of having this debate online. I appreciate the well-written commentary here. I made all of the same points in the online discussions, and didn’t make any headway, as far as I could tell.

    It is shocking to me how many people seem willing to toss the whole concept of religious freedom onto the ash heap of history.

    Reply
    • Granniedahn
      Granniedahn says:

      Moki, I think that is because The Bible is unread by even people who profess to being Christian. Many, many “things” are valued over honoring and worshipping God. Entertainment is a primary goal of many Americans…a kind of “first love”. Along with speaking The Truth concerning our religious freedom rights, we need to pray for God to revive real Faith and the practice of it. It seems those who possess it are the ones being targeted, which should shock many Americans into action. That’s my prayer!

      Reply
  5. scragsma
    scragsma says:

    Some people – increasing numbers, unfortunately – don’t get what religion is all about. It isn’t just an intellectual assent to a set of beliefs, but the making of those beliefs the foundation of all actions. Freedom of religion means being allowed to practice your beliefs in all aspects of your life unless it entails actual harm to others.

    In my opinion, there are two questions that need to be answered before determining whether a business is illegally discriminating against a customer:
    – Is the product/service necessary? Or is it customary? Or is it purely optional?
    – Is the business being asked to provide the service/product the ONLY reasonable source for it?
    Unless the answer to the first is ‘necessary’ AND the answer to the second is ‘yes’ the business should have the absolute right to decline to provide the service/product without legal or social penalty.

    And I like the point made that if a business can be designated ‘minority’ (black, Hispanic) based on its owners/founders, then it can be equally considered ‘Christian’ or ‘Jewish’ or ‘Muslim’ based on its owners/founders/stated business values.

    Reply
  6. Philip Irvin
    Philip Irvin says:

    Gay rights laws also protect a person’s “thoughts and attitudes pertaining to sex.” These laws give identical rights to force a Christian caterer to provide services for a gay wedding as they do to force a gay caterer provide services for a convention supporting the criminalization of sodomy laws.

    Instead of merely trying to defend Christian businesses we started to use the same gay tactics to attack gay businesses, it would be the gays who would be demanding the RFRA instead of us.

    Reply
    • Van
      Van says:

      Philip I hear you, but I read a story today on Drudge Report that said a Christian baker tried to get another bakery to bake him a cake with anti-homosexuality phrases and verses written on it. The gay-supporting bakery of course refused, and the State of Colorado supported the gay-supporting bakery that they did not have to do that. How’s that for hypocrisy?

      Reply
  7. Rick Wilson
    Rick Wilson says:

    Well, again to this well of intolerance rationalized and defended by “Christians” who want to serve only those people who adhere to certain beliefs. The examples of court-supported non-discrimination cases had nothing to do with this latest attempt to discriminate. Those of you who claim the Bible tells you what to believe and how not serve those who believe differently are constantly taking bits of the Bible to cite as reasons and leaving out great swaths of the Bible that would cause you consternation. Do you still support slavery, as the bible does? Do you wear clothes made of different fabrics as the Bible warns you to not do? Do you support public stonings of adulterers and prostitutes? (At least three very prominent Republicans politicians have admitted being unfaithful, yet are still leaders whose words are ‘respected’!) Do you support that the earth, et al was created in only six days? If you ‘explain’ that by saying the term “days” means something different today than it did to God, why are you so literal about other biblical sayings. On and on. Why not spend some energy on love rather than pretending to live a superior life and putting other people down?

    Reply
    • Van
      Van says:

      Hi Rick,

      You are confusing the concepts of non-discrimination vs being forced to participate in a ceremony you sincerely believe violates the Bible. As a florist or a baker I can (and the pizzeria said they would) serve homosexuals in their restaurant, but they would not want to participate in a same-sex “wedding” by catering food for it. Why don’t you get that?

      Also, the fact that we no longer stone adulterers and homosexuals does not change the fact that both are committing sins that are abhorrent to God. And He uses the word “abomination” to describe the act of homosexuality, not the inclination toward it. Jesus said, “he who is without sin, cast the first stone” but He also said next, “go and sin no more”.

      The homosexual activists will not be happy until our churches are closed down and our pastors are taken away in handcuffs for preaching the Gospel, speaking against sin (because it is so destructive to people – that’s why God hates it) and refusing to perform same-sex weddings. Is that really the America you want to see?

      Love
      Van

      Reply
      • Rick Wilson
        Rick Wilson says:

        NO ONE has ever suggested churches have to alter their beliefs or must conduct services such as weddings that violate their faith. This is a great example of the kind of fear-mongering that goes on, suggesting ‘the sky is falling’ when,, really all people are asking for is decency and fairness in public. Again, if you want to only sell your services to those of a particular faith, operate out of a church basement and advertise only to church members. Your own reply indicates it is ok to evolve in what it is you think the Bible means and how we respond to it – guess the word of God is not fixed and everlasting! Yea – we can mature in our outlook rather than live like we did thousands of years ago!

        Reply
        • Mike
          Mike says:

          NO ONE has ever suggested churches have to alter their beliefs or must conduct services such as weddings that violate their faith.

          Churches? This isn’t about churches. This controversy is about the religious freedoms of individuals and the businesses they run.

          Reply
    • scragsma
      scragsma says:

      I haven’t heard of any ‘discrimination’ case in which a business refused to serve gays. You are correct that such refusal would be wrong. But it is also wrong to insist that a business participate in an EVENT that the business doesn’t support.

      Further, the Bible doesn’t support slavery, nor does every word of the Bible carry equal literal weight. The Bible isn’t a single book, but more like a library containing different genres of writing. No one expects a newspaper to be interpreted the same way as a novel, or a poem, or a legal document – they’re different types of writing with different purposes. The book of Psalms, for example, is a hymnbook or prayerbook; the books of Kings and Chronicles are largely a form of history books (though not in the sense we think of ‘history’ today); the epistles of the New Testament are letters written to specific audiences addressing general Christian beliefs as applicable to those audiences at that particular time. If we were to try to interpret all of them in exactly the same way, we’d be distorting them rather than following them.

      Reply
    • Michelle
      Michelle says:

      I WAS A LESBIAN FOR 23 YEARS of my life! A sin is a sin, whether it is a lie, premarital sex between men and women, or stealing. “LOVE” is trying to make a healthy world that loves God. I spend energy on LOVE giving to the homeless and donating to charities for children.
      You have your opinion and your beliefs, so have some RESPECT for others’ rights, instead of playing the ‘hate’ card. Good luck to you.

      Reply
      • Rick Wilson
        Rick Wilson says:

        You are welcome to hate who you were (sorry that so consumes you) but because you think you have changed does not mean you now get to be mean to others. Let go, let live.

        Reply
    • Granniedahn
      Granniedahn says:

      Rick, If you have no personal relationship with God through Jesus Christ His Son and you don’t have the experience of a genuine relationship with God through The Holy Spirit, it would be impossible for you to understand the personal convictions that many Christians have in regard to sacred ceremonies like marriage. That’s why our country has had protective laws in place for the freedom to practice your religious beliefs without interference from the State. What is happening is that there is an attempt to eradicate personally held beliefs concerning marriage and homosexuality when it comes to Christians who own businesses. It seems to me that there is room in this country to make a stand for your beliefs even if you own a business. There are plenty of options to patronize other businesses who have no personal religious convictions about marriage as some Christians believe God intended it. That is called “tolerance” and “respecting another’s religious convictions”. Personally, as a Christian, I can not agree with my tax dollars being spent on abortion. These types of personal convictions are pretty much what Americans of Faith are standing up to defend and gain protection for because we have the right to make our arguments heard and understood. This does not equal “hatred” for any practicing the gay or lesbian lifestyle. I have two in my family who practice this lifestyle and they are welcomed and loved as part of my family, but I personally could not take part in a quote “marriage ceremony” because of my personal religious convictions. This is not a “hate war” between Americans who see Life differently. This is all about the right to practice and honor our religious beliefs and not have the state take that right away.

      Reply
      • Jenny
        Jenny says:

        Oh let us not take on the abortion issue…the beginning of the downfall of the US… A country that murders the innocent only has one way to go. This country is a modern day Sodom and Gomorrah…this LGBT envy should not surprise any Christian…

        Reply
  8. Michelle
    Michelle says:

    Your article was well written and concise. I would like to expand on your final point that truly worries me about the extreme changes the USA especially is committing.

    We are being told that it is criminal to live according to our religious values. We are being told, as a society and culture, that the “RELIGION OF TOLERANCE” REPLACES ANY AND ALL OTHER RELIGIONS.

    I am a Christian, however, let us say that a MUSLIM bakery refused to make a GAY WEDDING cake because it is a sin for them to do. They continue being Muslim 24 hours day, whether they are at their business or at home. Are we going to sue the muslims for not supporting gays? Sue Christians? What is next? Will we be “DISCRMINATING” AGAINST CHILD MOLESTORS? PEOPLE THAT LOVE AMOROUS INTIMACY WITH ANIMALS? Is that “HATING”?!?

    We have almost no standards left in our society. Anything goes is the rule. I work as a teacher. Everywhere in public school there are stickers in ELEMENTARY, MIDDLE, AND of course, HIGH SCHOOLS with stickers and posters about how it is ‘OKAY TO BE TRANSSEXUAL” and that we should support them, even if they are deciding these things at AGE 5 or if we do not, we are “DISCRIMINATING”.

    As a Christian, I say live and let live, but when the GOVERNMENT IS FORCING ME AND MY MILLIONS OF OTHER CHRISTIAN BROTHERS & SISTERS TO SHOW APPROVAL FOR MARRIAGE THAT AGAINST GOD, and even JESUS quoted the old testament (in the New Testament) that “GOD MADE THEM MALE & FEMALE, AND FOR THIS REASON THEY ARE TO BE JOINED IN MARRIAGE.” Jesus never said man to man, etc.

    IF GAYS HAVE ALL RIGHTS, WHY DON’T CHRISTIANS HAVE THEIR RIGHTS?!!???!!!

    Reply
    • scragsma
      scragsma says:

      In fact, someone recently DID go to about 30 Muslim bakeries and request a cake for a gay “wedding” — nearly all refused. Are those bakers going to be the object of legal action? I doubt it.

      It’s wrong to discriminate against someone just because they’re homosexual. But it’s not just OK, but proper, to discriminate (in the sense of acknowledging that things that are different, are different and can be treated differently) against homosexual behavior that is inherently harmful to the person, the family, and society as a whole.

      Reply
    • Jenny
      Jenny says:

      The Bible says we are not to expect to be accepted. In fact we will be hated because Jesus is hated. John 15:18-19 “If the world hates you, you know that it has hated Me before it hated you. If you were of the world, the world would love its own; but because you are not of the world, but I chose you out of the world, because of this the world hates you.…” At the same time we are to love and pray for our enemies. Matthew 5:44 But I tell you, love your enemies and pray for those who persecute you. I do feel that desire to want our rights as Christians. But, we must remain Christ like in all we do imho.

      Reply

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  1. […] article: What Is Religious Freedom? April 7, 2015 by Joseph […]

  2. […] Joseph Backholm of the Family Policy Institute of Washington examines those questions and explains what religious freedom entails: […]

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