What is the Future of Religious Freedom in the United States?

 John Eidsmoe

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Assuming that the makeup of the Supreme Court remains about as it is, on the Establishment Clause, I would expect that the Court is going to be as divided right down the middle as it is now, and that it will continue to muddle through without any clear direction on one side or the other. On the free exercise of religion, I think the momentum is probably going toward a greater recognition of free exercise and stricter scrutiny of laws that restrict free exercise. I also see a lot more cases being brought in the state courts, which I think is a good thing, because that’s where these cases should be resolved in the first place.

But one thing that I see as a grave danger is the tendency of the Obama administration to speak about religious freedom as “freedom of worship.” That sounds like an innocent term, but it can be a very restrictive definition that narrows what I think our Founding Fathers intended religious freedom to be. It means you’re free to practice your religion inside the confines of your church, synagogue, mosque or home, but you’d better set it aside if you go out in the public arena or marketplace. I see that as especially significant in the Hobby Lobby case against the federal government, in which the Health and Human Services mandate to include emergency contraception in health care coverage was challenged for violating free exercise of religion. The administration’s claim was that by definition, Hobby Lobby cannot be engaged in the free exercise of religion because it is a for-profit company. What it’s saying is that you cannot be running a business for religious reasons—and I definitely think you can be. A case that came up some time ago, Braunfeld v. Brown, involved a Jewish grocer and a Sunday closing law. Braunfeld said this violated his free exercise of religion, because his religion required that he close on Saturday. The courts said that his store could be closed both Saturday and Sunday to meet the demands of religion and the law, but Braunfeld argued that he would lose money and would be unable to compete if his store was only open five days a week. The courts ruled against him, saying this was only an indirect burden. This was later effectively overturned in the Sherbert v. Verner case. But nobody in the Braunfeld case said that Mr. Braunfeld didn’t have a sincere religious conviction and that it didn’t have a place in the way he ran his business. The only question was how direct the burden was on his business. Today, the distinction the administration is making between religious and religiously affiliated institutions is very dangerous. Religious organizations have been at the forefront of establishing hospitals and charities in this country, and the fact that they serve people without regard for the recipients’ religious belief in no way affects whether they’re doing it for a religious reason. A Jewish group might set up a hospital out of compassion, and a Christian group may be doing it out of evangelism. It’s a wrong distinction, and I hope the Court will rule that the distinction simply does not apply.

John Eidsmoe is an attorney and former professor of constitutional law, and currently serves as colonel in the Alabama State Defense Force. His most recent book is Historical and Theological Foundations of Law.

Asma Uddin

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Religious freedom claims vary according to religious group. All religious adherents are concerned with institutional autonomy, but in America, these sorts of claims are more frequent among more established communities such as Catholics and Protestants. Because they have more institutions, their claims often have to do with their ability to run their institutions free from government interference.

Muslims, on the other hand, are dealing with more basic issues that arise from a broad trend of Islamophobia. There was a challenge in Tennessee when an Islamic center sought to expand its facilities. Their construction materials were burned, and there were a lot of protests. Mosque opponents claimed in court that Islam is not a religion and therefore shouldn’t have the protections of the First Amendment. It’s an accepted fact of American society and law that religious persons have the right to build houses of worship. To circumvent that clear legal fact, anti-Muslim activists argue that Islam cannot be afforded any religious freedom protection because it is not a religion.

Another issue is the anti-sharia laws that have been proposed in about half the states. There are three types of anti-sharia laws. One specifically mentions sharia as a legal tradition and singles it out for disfavor. This type of legislation was introduced as a ballot measure in Oklahoma, was approved by voters, but ultimately was blocked by the courts. The second type lists a number of different legal traditions that are disfavored, and sharia is one of them, along with halacha, canon law and karma. The third and most common type bans all “foreign law.” The fact is, sharia has never posed a problem in the U.S., and even if it had, we already have a Constitution that precludes judges from getting involved in substantive religious issues. Proponents of anti-sharia laws are essentially proposing a solution to a non-existent problem.

Looking at these anti-sharia laws on their own terms, there are various possibilities for how they could inhibit Muslims from their religious practice. Sharia isn’t just a set of legal rules and in fact literally means “a path to the water,” that is, a path to a source of spiritual nourishment; it is meant to help the believer achieve the divine ideal. It does involve some rules, primarily about matters such as how to pray and wash before prayer. Proponents of anti-sharia laws don’t focus on these types of issues but instead speak of “sharia” in sensationalist terms, such as the cutting off of hands and the stoning of adulterers. Of course, these sorts of things are not likely to happen in the U.S. and certainly wouldn’t be sanctioned by a civil judge. Anti-sharia laws thus serve no purpose.

And while these laws don’t solve a problem, they in fact create many others. They could affect the enforceability of Muslim wills and marriage contracts. Even the most basic sharia considerations would be forbidden. For example, consider an employment contract where an employer allows a Muslim employee to work different hours during the month of Ramadan. If the employee tried to enforce that contract in court, the judge couldn’t even consider what Ramadan is. Of course judges can’t delve into theological debates, but normally they can engage in fact-finding to better understand the terms of a given contract. Anti-sharia laws would prevent even these types of basic sharia considerations. Moreover, in states with anti-sharia laws that single out Muslims, other religious adherents who choose religious arbitration would not be affected. This unequal treatment is clearly against our Constitution.

Asma Uddin is legal counsel to the Becket Fund for Religious Liberty.

Jacques Berlinerblau

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The answer depends on how we define “religious freedom.” My position is that religious freedom entails freedom of religion and freedom from religion—that’s disestablishmentarianism. I think there’s a growing cohort of Americans that shares this view. The more that demographic grows, the louder will become the voice of religious moderates, religious minorities, the religiously unaffiliated and those who are atheist or agnostic.

Now there’s another definition of religious freedom that has been advanced by the Christian right—which I would consider to include traditionalist Catholics and conservative evangelicals. It posits religious freedom as an absolute freedom that supersedes all other freedoms and has no boundaries or parameters. I find nothing in the legal or constitutional record to suggest that’s an accurate assessment of what the Founding Fathers had in mind. On the contrary, one thing the founders were concerned about when they thought about religion was social order. Many of us tend to forget the salience of “order” as a principle for regulating democratic polity. The founders were intimately acquainted with the dangers that religion had produced for social peace in Europe. So the American experiment in secularism was born, in part, of a realization that religion, as wondrous as it was, sometimes had a dark side. The task of the state is to balance freedom of religion with its primary responsibility of maintaining social order. If not, if there is religious violence or anarchy, then no one gets to God.

In a recent Catholic case from the headlines, many bishops defined religious freedom as the right of a small group of Catholics in charge of Catholic institutions to dictate to Catholic and non-Catholic employees what provisions they may receive in their health care packages. This creates a funny definition of religious liberty: the liberty of those holding a minority position on contraception to tell the majority of Catholics—and non-Catholics as well—what medical goods they may and may not receive. Insofar as the government (and medical science) recognizes contraception as a good, and insofar as most Americans avail themselves of contraception, the religious freedom claim is trumped.

I respect that religious freedom activists insist that the government shouldn’t force them to do something against their conscience. But in reality, the government forces all people to do things against their conscience—that’s the nature of social life in advanced democracies. I don’t like paying taxes, I don’t like stop signs, I don’t like red lights. I might not agree with our participation in foreign wars, but because I understand that my right of conscience isn’t an absolute right, I acquiesce because I feel the state is otherwise legitimate in what it does. What they’ve tried to do in the religious freedom debates is to create a hierarchy of American values in which religious freedom stands at the absolute pinnacle. Even Supreme Court Justice Antonin Scalia, in the famous Employment Division v. Smith case, seconded an old American intuition: A social life would be unlivable if we permitted every citizen to follow his or her conscience all the time.

Jacques Berlinerblau is director of the Program for Jewish Civilization at Georgetown University. His most recent book is How to be Secular: A Call to Arms for Religious Freedom.

David Saperstein

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The heyday of religious freedom in the United States culminated in the 1960s with the Sherbert v. Verner case, which said that the government could only interfere with your exercise of religion if it had a compelling interest to do so, and in pursuing that compelling interest, did so in a manner that least restricted your fundamental rights. . This gave enormous protection to Jews in America—and to all religious Americans.

Then, beginning in the late 1970s, the courts began to roll this back with a series of cases that limited the free exercise of religion, the worst being the 1990 Employment Division v. Smith case. In response to this case, an unprecedented coalition of religious and political groups came together to restore the “compelling interest/least restrictive means” test that the Supreme Court had abolished. Now, 19  states have passed legislation or have state court decisions that provide additional protections to religious freedom, but this is still not as robust a protection as we used to have. And I don’t think this generation will see a serious challenge to—or a successful overturning of—the Smith case.

The big challenge on the horizon for religious freedom will be striking a balance between religious civil rights and other civil rights claims. Some religious groups claim the right to discriminate against women, gays and lesbians, disadvantaged people and elderly, while claiming to be exempt from non-discrimination laws that would apply to other institutions. For instance, there are the competing claims of gay and lesbian groups who say that religious groups don’t have the right to discriminate against them, versus religious groups who say they have the right to practice their conscience, even if it justifies discriminating against the LGBT community. Congress and the executive branch have given some protections (although not nearly as many as some in the religious community would like) to these religious groups to discriminate, if their religious tenets justify that, and the Court has upheld some of them. I think the Court has been correct in that, but there must be limits to the ability of religious groups to discriminate—especially when government money is involved. With government money, there are rules and regulations that should apply to everyone; no one should discriminate with our tax dollars. What we’re seeing in the contraception battle raging today (whether the government can require religious institutions to provide contraceptive coverage in health care programs, even if the religious group opposes contraception) is just a taste of the tensions that the next generation will be working out.

David Saperstein is a rabbi, lawyer and director of the Religious Action Center of Reform Judaism.

Michael Broyde

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The challenge for the Jewish community has always been what to do when our religious practices are threatened by attacks on religious freedom. In the past 20 years, the United States has made it clear that religious communities cannot avoid generally applicable secular laws. For instance, Indians who want to smoke peyote as part of their religious observance are not allowed to in those states where it is illegal. This poses a perpetual threat to minority religions like ours. So what we really have to confront is an attempt to balance our desire for our own religious worship to be permitted with our realization that the government makes legislation that we need to obey—and that’s a hard balance, both in theory and in practice.

The biggest short-term challenge in this area seems to be the attacks on mila, circumcision. We can well imagine an attempt to prohibit circumcision generally, or having the government rule that it can only be performed by a licensed physician in a hospital setting.  Some Western democracies are moving in that direction, it appears, and circumcision is fundamental to how our community religiously functions, so if it is outlawed or even restricted in a significant way, the traditional Jewish community will dissolve. If we’re not careful, we can be regulated out of existence.

A more complex challenge to the Jewish community is the future of Jewish day schools, which perhaps cannot survive without government funding, but as we saw from the Jews’ Free School case in London (in which the Court of Appeal found that the school had illegally discriminated against a child because his mother had converted to Judaism), it is natural that with government funding will come some strings that dramatically change how the day schools function. Our approach to this topic has yet to be worked out.

Michael Broyde, an Orthodox rabbi, is a professor of law and senior fellow at the Center for the Study of Law and Religion at Emory University.