Prospects for Religious Liberty in the United States

By David Shumate | June 25, 2020

Questions We Are (or Ought to Be) Asking

[Ed. note: This article comes from FrontLine, September/October 2013. In light of the present turmoil, the article is of interest in several ways. First, many of the concerns Dr. Shumate anticipated in the article are only growing more intense in our current climate. Second, though current threats to religious liberty surprise us, the principles Dr. Shumate addresses are helpful in our present struggle.]

Recent political debates have raised the question of the status and future of religious freedom in America. In January of this year the Barna Group reported the results of a fifty-state telephone survey. A little over half of the total respondents, including 71% of Evangelicals, said that they were either “very or somewhat concerned that religious freedom in the U.S. will become more restricted in the next five years.1 In light of recent developments, the following are some of the questions that we should be asking related to religious freedom for believers in Christ.2

What is the most important thing for Christians to understand about religious freedom?

A: We must distinguish between our religious civil liberties and our spiritual freedom in Christ. Our spiritual freedom is absolute and inviolable. No one can do anything to take away the believer’s peace with God, his forgiveness of sins in Christ, or his joy, peace and power in the Holy Spirit. A failure to understand this truth will lead us to unnecessary anxiety and will damage our testimony for Christ.

Q: Why then should we care about freedom of religion?

A: There are at least two reasons that religious freedom is important. First, it is good for our society since it protects the consciences of those who believe there is truth higher than the current social or political consensus. This is a bulwark against tyranny of all sorts. Second, religious freedom, like other legal protections, is a useful tool for the work of the ministry. Paul instructed believers who were slaves to realize that they were free people spiritually in Christ. Nevertheless, if they could obtain their emancipation, they should do so (1 Cor. 7:21, 22). Paul himself used his Roman citizenship to protect himself as he served Christ (Acts 16:37; 22:25; 25:11). American Christians are also American citizens. They have constitutional rights as well as the privilege of participating in the process of selfgovernment. Therefore we have a stewardship, both for the good of the society and for the sake of the gospel, and must exercise that stewardship in a responsible fashion.

Q: Don’t Americans enjoy an almost unprecedented level of religious freedom?

A: Absolutely. Compared with much of the history of the Church and much of the world today, in the Unites States we are blessed with an abundance of religious liberty, much more than we currently exercise, especially with regard to evangelizing the lost. To complain that we are martyrs is an insult to our brothers and sisters around the world who are truly suffering for the faith. While we should defend religious liberty, we must also recognize the great blessings of liberty that we have in this country and thank God for them. We must also pray for and support persecuted fellow believers around the world.

Q: What is currently the greatest challenge to Christians’ religious liberty in America?

A: In human terms, the greatest current challenge comes from the broad social and legal acceptance of the Sexual Revolution. A fundamental belief of that movement is that sexual desires and orientation are essential to personhood and are entitled to be expressed freely. Because under this view consenting adults should be able to “love whom they wish,” to deny them that right is to attack their personhood. As one advocate put it, “same-sex relationships constitute lesbian and gay identity. . . . Marriage is merely one form of sexual orientation identity enactment.”3

The Christian (and traditional) understanding is squarely opposed to this philosophy of sexual “selfexpression.” Contrary to the popular idea, just because something comes naturally does not mean that it is right. All people are born sinners, and many of our “natural” impulses are evil. As society increasingly adopts the self-actualization view of personhood, the Christian worldview is going be increasingly seen as intolerant and antisocial.

Q: How should Christians respond to being called “bigots” and “haters” simply for supporting Biblical sexual morality?

A: First we must realize that it is nonsensical. If belief that marriage is between a man and a woman is hateful bigotry, then virtually everyone in the history of civilization (including President Obama) was until very recently a hateful bigot. In this context the term “bigot” is a classic ad hominem attack, designed not primarily to debate but to insult and intimidate. Second, we must realize that name calling is nothing new or unusual. Jesus said, “Blessed are ye, when men shall . . . say all manner of evil against you falsely, for my sake” (Matt. 5:11).4 The Romans called the Christians “atheists” and “haters of mankind.” A number of terms for religious groups, such as “Anabaptists,” were coined by their opponents as insults. Most importantly we must, in the power of the Spirit, bless those who curse us (Luke 6:28), focus on a Christlike response (1 Pet. 2:23), and seek to demonstrate the falsity of the slanders by our godly conduct (1 Pet. 3:5, 6).

Q: How is the inversion of moral values affecting public policy discussions?

A: A striking example of this effect can be seen in the ACLU’s campaign to “end the use of religion in discrimination.” The list of offending practices listed on their website is instructive:

“Religiously affiliated schools firing women because they became pregnant while not married;

“Business owners refusing to provide insurance coverage for contraception for their employees;

“Graduate students, training to be social workers, refusing to counsel gay people;

“Pharmacies turning away women seeking to fill birth control prescriptions;

“Bridal salons, photo studios, and reception halls closing their doors to same-sex couples planning their weddings.”5

Notice that every one of these examples directly or indirectly involves the refusal to acquiesce to the new sexual ethic. Increasingly public policy and law are being invoked to codify the Sexual Revolution.

Q: Are there any other significant trends that threaten religious liberties?

A: Probably the most important has been the rise of the regulatory state. At the time of the country’s founding, government regulation of everyday activity was orders of magnitude less than it is today. For example, in 2011 alone over 81,000 new federal regulations were added to the Federal Register.6 The more we are regulated by the government the more likely it is that the working out of our religious beliefs in our daily lives is going to come into conflict with government policies and rules.7

Q: Does the legal redefinition of marriage pose a challenge to the religious freedom of those who disagree?

A: The short answer is yes, although the situation is somewhat complicated. In just a few years a number of conflicts have already arisen. As of the time of writing, a photographer in New Mexico, a florist in Washington, and a baker in Colorado are facing legal sanctions for “discrimination” for refusing to provide their services for same-sex weddings or related activities. They join a restaurant in Vermont, a farm-based wedding venue in New York, and a bed and breakfast in Illinois. As a Heritage Foundation report concludes, “Same-sex marriage is likely to increase the number of conflicts between religious freedom and nondiscrimination laws.”8

Q: Don’t same-sex marriage statutes and amendments include religious freedom protections?

A: When marriage laws are changed by courts, as in Iowa and California, there is typically no explicit religious exemption since that question was not part of the court case. Therefore, any such protections would have to come from other places (federal or state constitutions and statutes). This would be one very significant consequence should the Supreme Court rule that same-sex marriage is a Constitutional right. In the case of state statutes redefining marriage, the only religious protection that has been universally adopted is one that says ministers and churches will not be forced to “solemnize” same-sex marriages, that is, perform the ceremony. This is a quite narrow exception and one that is undoubtedly required by the First Amendment anyway.

Q: Do some state statutes provide additional religious freedom protections?

A: States such as New York and Minnesota have provided somewhat broader protections. Each state statute is different, but religious exemptions tend to be restricted to ministers and religious organizations. This means that religious individuals or businesses will unlikely be granted an exemption. It is also sometimes unclear what types of ministries (besides churches, mosques, temples, etc.) would be covered. Similarly, only a few states allow religious organizations to refuse to recognize the status of same-sex unions in the course of their employment and ministry activities. Religious organizations will not have to hold the ceremony, but they may be forced to recognize the marriage.

Q: What about the tax exemption?

A: For the present, churches’ tax exemptions are probably safe (not even the tax-exempt status of the odious Westboro Baptist Church has been revoked). But the same cannot necessarily be said of parachurch ministries that are deemed to be involved in “secular” activities such as education or social work. For example, a bill in the California legislature would strip state tax exemption from nonprofit youth organizations that do not allow homosexuals to participate or serve as leaders.9 Unless protected by statute, Christian colleges may, for example, be required to make married student housing available to same-sex couples, and religious schools may not be able to insist on Biblical moral norms (such as chastity apart from a Biblically defined marriage) for their students or employees. In fact, one of our biggest concerns should be for our Christian schools and colleges.

Q: What about the First Amendment?

A: The First Amendment forbids the government to take action “prohibiting the free exercise” of religion. As you may imagine, the body of legal opinions interpreting religious freedom is voluminous and complex. No constitutional right is absolute, but if the government infringes the exercise of religion, it will typically be required to show that its action is necessary to further a “compelling” state interest and is the “least restrictive means” of accomplishing its objective. Any statute that specifically targets one or more religious groups would have to meet this high legal standard.

Laws that explicitly discriminate against religious groups and individuals, however, are relatively rare. Much more commonly, conflict arises when a law of “general applicability” (such as an antidiscrimination law) incidentally operates so as to impose “substantial burden” on the exercise of a “sincerely held religious belief.” In 1990 the Supreme Court held in Employment Division v. Smith that such laws need only have a “rational basis” (a much lower threshold than strict scrutiny). In many cases, therefore, the Free Exercise Clause is not going to provide much protection.

Q: What about the Religious Freedom Restoration Act?

A: In response to the Smith case mentioned above, Congress in 1993 overwhelmingly passed the Religious Freedom Restoration Act (RFRA), which reestablished the strict scrutiny test. However, in the 1997 case of City of Boerne v. Flores,10 the Court held that RFRA was unconstitutional when applied to state law. The RFRA has continued to be upheld, however, as applied to the federal government, so that when a federal laws or regulations substantially burden the exercise of religion the government must satisfy the strict scrutiny test.

Q: Are there other legal protections?

A: In addition to the Federal Constitution each state has its own constitutional freedom of religion protections. It is up to state courts to determine how much protection each affords. A number of states have passed religious freedom restoration acts of their own that provide various levels of protection. The specific situation varies from state to state.

Q: Is there less interest today than in the past in preserving religious liberty?

A: This is hard to gauge. It is true that most people in our society would say that protecting religious liberty is important. On the other hand, the less important religion becomes for people, the less interest they will have in protecting it. One contested area today is the scope and nature of religious liberty. For example as a number of commentators have noted, the Obama Administration seems to be shifting from speaking of “freedom of religion” to speaking of “freedom of worship.”11 The latter is substantially narrower than the former, which is closer to the language of the First Amendment. To be sure, the freedom to worship is an essential protection, but it probably does not include many religiously motivated decisions in daily life.

Q: Has this apparently narrower understanding of religious freedom been reflected in any practical ways?

A: A rather cramped interpretation of religious liberty seems to be reflected by positions the current administration has taken in court. For example, the Justice Department argues that religious freedom does not extend to Hobby Lobby, since it is a for-profit corporation. In another example, in the case of Hosanna-Tabor Lutheran School v. EEOC lawyers for the government argued before the Supreme Court that when it comes to employment law (1) the Religion Clauses of the First Amendment grant churches no special freedom to choose their ministers beyond the right any organization has to choose its leaders,12 and (2) even if there is such a freedom, it should be strictly limited to only those employees that perform “exclusively religious functions.”13

Q: In what areas are religious protections the strongest?

A: First, the courts have held that the Religion Clauses prohibit the government from interfering with the “internal governance” of religious institutions. This prohibition extends to four main areas: (1) receiving, disciplining, and dismissing members, (2) the exercise of church polity and administration, (3) the definition and propagation of church doctrine, and (4) the selection, conditions, and discipline of ministers.14 Although not every employee of a church is a minister, the Supreme Court stated that the term did not refer only to the leaders of the congregation.15

Second, the Supreme Court said in the Smith case discussed above that religious exercise merits heightened protection when it also involves other constitutionally protected freedoms. So, for example, the right of free exercise coupled with the liberty of free speech should continue to guarantee a very broad right for believers to proclaim Biblical truth even when that truth is offensive to others. Free exercise coupled with freedom of association provides strong protections for churches’ decisions to admit and dismiss members. In addition there are broad constitutional and statutory protections for the freedom to gather for worship without unreasonable barriers from things such as land-use restrictions.16

Q: What are some things that ministries should do, given current trends?

A: The first thing that we should do is pray that the Lord would fill us with His Spirit and give us trust in Him and a Christlike attitude. Second, we should inform ourselves about religious liberty issues and protections. A number of groups publish regularly on the subject of religious liberty (see sidebar, below). Third, religious institutions should clearly articulate how their practices, including their employment practices, relate to their spiritual mission and functions.

Dr. David Shumate holds advanced degrees in law and theology. He has served as an associate pastor and taught in seminary. He currently leads a mission agency ministering in the Spanish-speaking world.

(Originally published in FrontLine • September/October 2013. Click here to subscribe to the magazine.)

 

Provisions that churches should include in their governing documents (from “Seven Things All Churches Should Have in Their By-Laws,” Alliance Defending Freedom, http://factn.org/wp-content/uploads/2011/08/ Church-by-law-recommendations-memo.pdf, accessed July 5, 2013):

  • Formal membership policy
  • Procedure for member discipline/membership revocation
  • Procedure for rescinding membership
  • Job descriptions and religious grounds for limiting employment opportunities
  • Statement of religious belief regarding marriage
  • Identify governing body that is the sole authoritative interpreter of Scripture
  • Due diligence requirements for all volunteers and staff who work with children

Sources for information on religious liberty and related issues:

Groups providing legal help to defend religious liberty:

  1. “Americans Concerned about Religious Freedom,” Barna Update, January 18, 2013 (https://www.barna.com/research/americans-concerned-about-religious-freedom/, accessed July 5, 2013). [↩]
  2. The answers here are not prophecies, of course, and do not constitute legal advice. Given the nature of the issues involved, legal counsel may sometimes be necessary. [↩]
  3. Douglas Nejaime, “Marriage Inequality: Same-Sex Relationships, Religious Exemptions, and the Production of Sexual Orientation Discrimination,” California Law Review, vol. 100 (2013), p. 1169. [↩]
  4. Of course the slander of one’s opponents is a common practice of fallen humanity. It is all over the Internet and is common in arguments over politics, religion, morality, and even sports. When walking in the flesh instead of in the Spirit, Christians are just as susceptible to this evil practice as unbelievers. [↩]
  5. http://www.aclu.org/using-religion-discriminate, accessed July 4, 2013 [↩]
  6. Clyde Wayne Crews Jr., “Ten Thousand Commandments 2012: An Annual Snapshot of the Federal Regulatory State,” Competitive Enterprise Institute, http://cei.org/studies/tenthousand-commandments-2012, accessed July 5, 2013. [↩]
  7. A current example of this is the contraception (and abortifacient) mandate, which has produced over sixty lawsuits with over two hundred plaintiffs (“HHS Mandate Information Central,” The Becket Fund for Religious Liberty, http://www.becketfund.org/hhsinformationcentral/, accessed July 5, 2013). [↩]
  8. Thomas Messner, “Same-Sex Marriage and Threats to Religious Freedom: How Nondiscrimination Laws Factor In,” Heritage Foundation Backgrounder no. 2589, July 29, 2011, p. 2 (http://www.heritage.org/research/reports/2011/07/same-sex-marriage-and-threats-to-religious-freedom-how-nondiscriminationlaws-factor-in, accessed July 3, 2013). [↩]
  9. California Senate Bill 323 as amended. (See http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=sb_323&sess=CUR&house=B&author=lara, accessed July 3, 2013). [↩]
  10. 521 U.S. 507 [↩]
  11. Ashley Samelson, “Why ‘Freedom of Worship’ Is Not Enough,” First Things, Feb. 22, 2010 (https://www.firstthings.com/web-exclusives/2010/02/why-ldquofreedom-of-worshiprdquo-is-not-enough, accessed July 5, 2013). Jeremy Weber, “Becket Fund Pushes Back on Obama’s ‘Religious Freedom Day’ Proclamation,” Christianity Today, http://www.christianitytoday.com/gleanings/2013/january/becket-fund-pushes-back-on-obamas-religious-freedom-day.html (posted January 16, 2013, accessed July 5, 2013). Terence Jeffrey, “Obama on This July 4: Americans Free to ‘Worship’–But Not Freely Exercise Their Religion,” cnsnews. com, July 4, 2013, http://cnsnews.com/blog/terence-p-jeffrey/obama-july-4-americans-free-worship-not-freely-excercise-theirreligion,accessed July 4, 2013. [↩]
  12. The Supreme Court in a unanimous decision rejected the administration’s view, saying, “We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers” (Hosanna- Tabor Lutheran Church v. EEOC, 132 S.Ct. 694 [2012]). [↩]
  13. Justice Roberts observed during oral arguments that even the Pope does not exercise “exclusively” religious functions since he is the head of the Vatican State (James Vicini, “Top court hears fired teacher church-state case,” Reuters, Wed. Oct. 5, 2011, http://www.reuters.com/article/2011/10/05/us-usa-religion-courtidUSTRE7944YF20111005, accessed July 5, 2013). [↩]
  14. “Church Autonomy: Protecting Churches from Government Interference,” Alliance Defending Freedom whitepaper, 7/13/2012, http://www.speakupmovement.org/church/content/userfiles/Church_Autonomy-v2.pdf, accessed July 5, 2013. [↩]
  15. Hosanna-Tabor Lutheran Church v. EEOC, 132 S.Ct. 694 (2012). [↩]
  16. One statutory protection is the federal Religious Land Use and Institutionalized Persons Act (Public Law 106-274; 42 U.S. Code sec. 2000cc and following). [↩]
Posted in All and tagged , ,