The current complexion of the debate about religious liberty has been shaped by three converging cultural streams: an increase in the size of government that has subjected increasing areas of public life to legal regulation, shrinking legal protections for religious liberty and acceptance of open hostility to religion.
One obvious manifestation of this latter trend is the ongoing battle over public displays of religious belief. Over the past few decades, prayers at graduation and football games, crèche displays, invocations in public meetings, religious memorials, etc. have all been challenged in litigation in the federal courts.
Another, less obvious, manifestation is the re-conception of religious liberty as “freedom of worship.” Not that every use of that latter phrase is malign. Sometimes the phrases are used to mean the same thing — what the U.S. Constitution protects, a right to “exercise” one’s faith in every part of life.
The idea of the new framing (the Soviet Constitution “guaranteed” “freedom of religious worship”) is that everyone is free to believe what they would like but with the caveat that they may not be able to act on those beliefs if those actions run afoul of laws or prevailing cultural norms (health regulations, military requirements, discrimination laws, etiquette conventions, etc.). More common in the U.S. is the idea that churches can believe and teach what they like, and perhaps even select their own clergy and perform their own ceremonies, but that this “freedom” essentially ends outside the door of the meetinghouse.
This understanding of religious liberty means that contending sides in current controversies can easily talk past each other. Opponents of state RFRAs, for instance, see the purpose as malign, i.e.: “You already are free to believe whatever you want so if you are asking for legal protection beyond that you are asking too much. Specifically, you are trying to get a right to discriminate or to pick and choose what laws you obey.”
Supporters of the law are mystified by this. They would respond: “No, it’s only recently that we started to be asked to do things that violate our beliefs (pay for abortion-inducing drugs, facilitate same-sex weddings), we’re shocked and we are just asking that the freedoms we had always taken for granted will be respected.”
So, the latter group, thinking in terms of the old, “free exercise,” meaning of religious liberty is talking about something significantly different than the new, “freedom of worship” understanding that is re-purposed to contain the “threat” of religious beliefs to nonbelievers.
So, part of the way forward on religious liberty will be to clarify what precisely we mean when we talk about it.
William C. Duncan is director of Sutherland Institute’s Center for Family and Society.