The Threat to Religious Liberty

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With Newt Gingrich now perched atop at least one national poll, it seems like a good time to check out what the man has to say about religion in his latest book, A Nation Like No other: Why American Exceptionalism Matters. It turns out there’s a certain amount of Bartonish huffing about the Christianism of the Founding Fathers but the basic message is well within the standard view that the U.S. started off pretty exceptionally by prohibiting Congress from making laws respecting an establishment of religion.

Within a few pages, however, Gingrich is on the warpath against “radical secularists” for attacking “Judeo-Christian morality” and seeking to “banish our Judeo-Christian heritage from public life altogether.” And from the list of Supreme Court decisions on pages 86 and 87 you’d think the secularists were succeeding. Thus, Gingrich points to the 1993 case (Lamb’s Chapel) permitting a Christian club to be barred from using public school facilities but fails to mention subsequent decisions allowing such access. And he notes the Court’s ruling that displays of the Ten Commandments in two Kentucky courthouses were unconstitutional but neglects to mention the Texas display that was deemed OK.

You’d never know that in recent years Court has gone a good way towards opening the door to religious establishments long regarded as unconstitutional–by permitting public funding of religious schools by way of vouchers, allowing subsidization of such schools through tax credits, and denying individuals the right to bring Establishment Clause cases to court. But of course, Gingrich is just engaging in standard GOP culture-war rabble-rousing.

Unfortunately, this particular rabble-rousing virus has now infected the Catholic bishops, who have established an ad hoc committee to cry from the rooftops that religious liberty is under attack in America. In his speech yesterday to the semi-annual meeting of the USCCB, committee chair Bishop William Lori of Bridgeport included the following fanciful analysis of the judicial threat at hand.

We also see that the reach of the Establishment Clause of the First Amendment is being expanded so as continually to narrow the protections offered by the Free-Exercise Clause, thus turning the First Amendment on its head. The establishment clause was meant to protect the Free-Exercise Clause not the other way around. The result has been that both individual citizens with strong religious convictions and also religious institutions are less broadly accommodated and even marginalized on the grounds that any minimal accommodation somehow constitutes the “establishment” of particular religions in our land. For example, the Conference has been defending against an ACLU lawsuit claiming that HHS’s recently abandoned policy that allowed us to serve trafficking victims without also providing them abortions and contraception–a policy that respected our freedom of religious exercise-actually violates the Establishment Clause!

But let us make no mistake. Anti-religious secularism is also a system of belief. In failing to accommodate people of faith and religious institutions, both law and culture are indeed establishing un-religion as the religion of the land and granting it the rights and protections that our Founding Fathers envisioned for citizens who are believers and for their churches and church institutions.

In fact, what has done most to narrow Free Exercise protections of late has not been an extension of the Establishment Clause but the Supreme Court’s 1990 Smith decision, which denied Free Exercise challenges to “neutral laws of general applicability.” Smith, however, was the brainchild of Antonin Scalia, who hardly qualifies as an anti-religious secularist. Twenty years ago, the Catholic bishops joined the broad coalition that succeeded in persuading Congress to pass the Religious Freedom Restoration Act, which overturned Smith–until the Court in turn declared it unconstitutional. But that was back in the last millennium, when the bishops concerned themselves more with legal precision, less with rhetorical hyperbole.