Religious Freedom Argument
Through our course, we observed various faiths’ beliefs, rituals and worship practices, lifestyles, organization, and cultures. We learned about the similarities and the differences between some common religions and beliefs. We also found unique characteristics that differentiate the religions.
Is religious freedom possible? What should be the American legal standard for and cultural understanding of religious freedom? What is freedom? What is religion? Is religion more than belief?
To properly address these questions, we need to understand the terminology. First, freedom is rather clear-cut in the Declaration of Independence. The preamble to the Declaration of Independence defines “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” (paragraph 2). Therein, our forefathers identified a basic principle of freedom. Those rights – life, liberty, happiness – are possessed by all people, and by such qualification of “all [people],” it is understood to limit those rights or freedoms to not impose on freedoms of others.
From the onset of our nation’s history, we have battled to maintain those constitutionally ordained freedoms. But only after newly found freedoms is it now obvious what had been missing: women’s right to vote, married women’s rights to vote, slavery, and black men and women’s rights to vote. More obvious and egregious intrusions on American freedoms have occurred in our country’s history. Early United States history is peppered with infringements on what we today observe as those freedoms. Pre-nationhood, men and women were tried for religious beliefs, persecuted as witches in Salem, Massachusetts, and other locations. (Hoffer, 2016).
Freedom of speech and press have been hampered by social expectations that produced legal restrictions against what some in society interpreted as crude or obscene writing or images. Restrictions on where an African-American could reside or purchase a home, and where he could play music, which entrances could be used. The use of the Alien and Seditions Acts to imprison and deport immigrants who came from enemy nations. Immigration Act of 1924 is widely held to have been designed to restrict the upswell in immigration from Italy, Germany, Poland and other Slavic nations. The Japanese-American incarceration to internment camps following Pearl Harbor. Some of these restrictions and regulations target religious segments; for example, the Immigration Act of 1924 by restricting immigrants from Italy, is attributed to an anti-Catholic sentiment. Similarly, in 2017, President Donald Trump attempted to apply a ban on immigration from primarily Muslim countries.
In an article comparing American Union Against Militarism (AUAM) and National Civil Liberties Bureau (NCLB), Weinreb explains how these organizations voiced as “conscientious objectors” to Selective Service Act, Alien and Seditions Acts during World War I. These two organizations (AUAM and NCLB) would later be followed by American Civil Liberties Union (ACLU). One of NCLB’s earliest attempts at defending American freedoms was to defend against the mandatory military service dictated in Selective Service Act. Weinreb points out that their means of defense by voicing political opposition to the War was not an effective move, considering the fervor of nationhood that swelled in the United States at that time. “Perhaps if civil liberties advocates had begun with claims to free speech and gradually worked toward freedom of conscience, their justification for exemptions might have taken root.” (Weinreb, 2016).
Unfortunately, our freedoms are not always that clearly identifiable. Take as an example, in late twentieth century, the US government passed, in high majority, Religious Freedom Restoration Act (RFRA). The understood intent of RFRA was to ensure freedoms that could be infringed upon by governments. It helped prevent the government from intruding on religious freedoms through general regulation. It attempted to curb perceived intrusions on religious freedoms within minority groups. One example is the use of Peyote by Native Americans. The courts interpreted constitutional law to not protect the use of this hallucinogen. In response to cases like this, the US government overwhelmingly passed the RFRA. However, the RFRA has also been used to seek freedoms to discriminate or deny others’ freedoms. This was overturned as it applies to states, but is still applicable to federal government. Many states have adopted similar regulations.
Arguably, the Declaration of Independence, by mentioning a creator, also implies a presumption that a greater being exists that governs by endowing these rights. Unlike “freedom” being represented as life, liberty, and happiness; neither the Declaration of Independence or Constitution broach a definition for religion. The dictionary definition of religion leaves some uncertainty to what is used. Nearly all dictionaries define it as a relationship to god, gods, spirits or similar supreme being(s). Cambridge defines it as “the belief in and worship of a god or gods, or any such system of belief and worship.” This definition inclusively describes the supreme entities, but allows for a more nuanced “system” to be included.
The First Amendment to the Constitution outlines that Congress cannot impose restrictions on religion nor institute one as accepted. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” (Amend. I.)
The Law Dictionary offers an alternative definition with citation of legal decisions to support its interpretation: “As used in constitutional provisions forbidding the ‘establishment of religion,’ the term means a particular system of faith and worship recognized and practised by a particular church, sect, or denomination.” The specific identification as practices conducted in “church, sect or denomination,” omitting individual, for being recognized could lead to overly limited application. This possibly could deny a person from coming to an individual awakening to a belief system which before that point never existed.
Jesse Choper, a law professor at University of Berkeley, published the article Defining Religion in the First Amendment in 1982 describing the lack of definition for religion in legal documents. Choper explains the separation of church and state by examining how these are constructed through the “establishment” and “free exercise” clauses. He offers another definition taken from legal reference. First, the definition must identify the thought process associated with the term “religion.” Second, it must be defined broad enough to allow application to unforeseen interpretations. He specifically mentions traditional beliefs, new beliefs, adaptation of existing beliefs, and “nonconformist” beliefs. Choper also identifies areas that should be avoided, such as thought processes and behaviors. Additionally, he tells the reader “its ultimate form must serve purposes beyond the specific visions of the framers, even assuming that they may be discerned” (Choper, 1982).
To carry this forward into the course work, in Unit One Blueprint, we accepted the definition through application of four categories that should be met (REL 320, 2017). First, a shared knowledge that it categorizes as discourse. Second, practice of rites, rituals, and other normative processes that are based on the religious discourse. Third, the members of the group join in congregational or similar community exchanges and celebrations. Fourth, institutions are established within the communities that establish order and makes the institution capable of replicating. In this explanation, no deity or spirit is brought forward. This more closely relates to Choper’s analysis of establishment and free exercise clause.
Joppke compared the plights of gay marriage and Muslim religious freedoms in an article published in European Journal of Sociology (Joppke, 2017). The comparison examined how some privileges are sought to be extended to a group, such as gay marriage. Muslim traditions look for a different appeasement by what Joppke labels “special rights.” In the case of same-sex marriage, the right exists for those outside the group. The argument is for equality. For Muslims, the right being sought is exemptions for some legal requirements. This may be demonstrated in the wearing of a hijab in a classroom. Joppke further distinguishes these two group by highlighting that for same-sex marriage it focuses on how they should be given the same liberties. In contrast, Christians and Muslims have the same religious freedoms, but Muslims seek “special rights” be extended to accommodate their beliefs. This examination compares liberty freedoms to religious freedoms.
Pope Leo III, in an 1885 papal paper, highlighted a non-universality of religion in Catholicism. “To hold, therefore, that there is no difference in matters of religion between forms that are unlike each other, and even contrary to each other, most clearly leads in the end to the rejection of all religion in both theory and practice. And this is the same thing as atheism, however it may differ from it in name.” Here the pontiff points out the acceptability of the existence of different religious beliefs.
Some of the American public believe these interpretations of the Constitution are overly broad. An interpretation of statements within the Constitution and Declaration of Independence, such as mentioning “Creator,” that the United States is founded by and for Christian and God-fearing individuals. Matthew Cochran, a writer for The Federalist, remarks, in not so subtle wording, that leftists and gay activists are impacting the freedoms of not condoning choices that differ from their religious beliefs. He highlights an instance of a florist in Washington, D.C., who refused to provide flower arrangements for a same-sex marriage. The couple and attorney general pursued legal paths and financial liabilities against the florist. Cochran argues this is an intrusion on the florist’s religious beliefs, as she does not support same-sex marriage. He logically argues a more inclusive way to review these legal proceedings would be, “…merely require courts to thoughtfully weigh burdened religious conscience against government interest when there’s friction between the two.” Despite the attractive wording, his article focuses highly on allowing Christians to exclude others.
When viewed together, Pope Leo XIII’s more inclusive descriptions and Cochran’s exclusionary position present a stark contrast. In the pontiff’s quote, he explains that if we need to accept other’s differences without ostracizing them. On the other hand, Cochran wants the freedom to explicitly act against a group because of a difference of religious affiliation. These follow a protagonist/antagonist comparison from Joppke. He pointed out that same-sex couples are looking for a freedom to be wedded “just like straights,” but it is necessary to avoid the contradiction of wanting equal protection for a group. Joppke’s justification comes where the equal protection segregates a group rather than seeking to maintain a freedom. Cochran may have presented his case more effectively if argued as that, a retention of a freedom.
Within these freedoms – religion, speech, press – there are lines that cannot be crossed. Each individual has the freedom and right to possess the mental consciousness that grants them a belief. They can act on those conceptions of freedoms so long as it does not infringe on another person’s freedoms, so long as it does not violate any general principles ordained in law. Hemeyer explains, “clearly some actions cannot be condoned, such as the torture of people or animals or random terror attacks on civilian populations. Other actions, if permitted, would utterly disrupt the social order, such as the refusal to be bound by any laws” (Hemeyer, 2016).
Our country continues to weave its way through the challenges of understanding freedom clauses, and likely forever will. The unforeseen circumstances that will befall our nation spur knee-jerk reactions. We come to observe new dangers to ourselves, our children, our country, and we rally the troops, and legislators, to save us from certain death, or at least discomfort. We have witnessed this repeatedly in our past, and we continue to use too narrow a spectrometer when evaluating the similarities to whatever the current tone of fear is that rushes over us.
The “establishment” clause of the Constitution, in conjunction with no specific definition leads to an understanding that religion is not to be precisely defined. Rather that religious freedom should be understood through the other directives, such as “free exercise,” “freedom of speech,” and “freedom to peaceably assemble.” The methods of celebrating religiosity should be the choice of the believer, up to the point it denies another person their freedom.
Religious freedom is alive and well in the United States. However, we must remain ever vigilant to the infringements that begin dictating how we need to believe and what forms of belief are acceptable. Even when these infringements affect only one neighbor, we need to conscientiously evaluate how that restriction will come back to haunt us.
In today’s world, we witness violent acts of terror across our country and across the world. The images are subtitled with warnings that they are coming for us. We react, involuntarily, by throwing up our shields and hiding behind them. I took this course with the intent to get some humanities credit hours. I am happy I also gained a useful understanding of other religious perspectives, and I hope to carry that with me.
Choper, Jesse H. (1982). Defining Religion in the First Amendment, 1982 U. Ill. L. Rev. 579. Available at: http://scholarship.law.berkeley.edu/facpubs/329.
Cleworth, Brendon. (2017), “REL 320: American Religious Traditions (2017 Summer – B).”
Cochran, M. (2015, April 21). Religious freedom is not dangerous, but losing it is. The Federalist. http://thefederalist.com/2015/04/21/religious-freedom-is-not-dangerous-but-losing-it-is/.
Corbett-Hemeyer, Julia. Religion In America, 7th Edition, 19 Feb 2016. Routledge.
Joppke, C. (2017). Multiculturalism by Liberal Law: The Empowerment of Gays and Muslims. European Journal of Sociology, 58(1), 1-32. doi:10.1017/S0003975617000017.
Hoffer, Peter C. (2016). Salem witchcraft trials. In S. Bronner (Ed.), Encyclopedia of American studies. MD: Johns Hopkins University Press. Retrieved from http://search.credoreference.com/content/entry/jhueas/salem_witchcraft_trials/0.
Pope Leo XIII, Immortale Dei, 1885; Encyclical Of Pope Leo Xiii; On The Christian Constitution Of States. http://w2.vatican.va/content/leo-xiii/en/encyclicals/documents/hf_l-xiii_enc_01111885_immortale-dei.html.
The Law Dictionary, dictionary.thelaw.com. Accessed 2017 Aug 8.
U.S. Constitution. Amend. I (1791), XIV §1 (1868). https://www.senate.gov/civics/constitution_item/constitution.htm.
U.S. Declaration of Independence, Paragraph 2 (1776). https://www.archives.gov/founding-docs/declaration-transcript.
Weinrib, L. M. (2016). Freedom Of Conscience In War Time: World War I And The Limits Of Civil Liberties. Emory Law Journal, 65(4), 1051-1137.
Williams, Rhys H. “Religion and Multiculturalism: A Web of Legal, Institutional, and Cultural Connections.” Sociological Quarterly, vol. 56, no. 4, Fall 2015, pp. 607-622. EBSCOhost, doi:10.1111/tsq.12094.