Religious Freedom Beyond the First Amendment

I appreciate Ilya Shapiro’s plea for us all to get along. The most productive way to do so when it comes to religious liberty is by affirming the values of both of the First Amendment’s religion clauses. It is easy and all too common to undervalue the Establishment Clause and its unique and essential role in protecting the religious freedom we enjoy. That is particularly true when one skims the surface of disputes over government-sponsored Ten Commandments displays or when one is not invested in providing public schools that serve all children without regard to religion. The principles of “no establishment” and “free exercise,” however, are two sides of the same coin and ensure that the government’s role in religion is limited. Those principles are necessary to move in the direction of a live-and-let-live attitude toward religion that Shapiro embraces.

David Gans’ strong defense of the Establishment Clause in our constitutional order appropriately broadens the lens and advances the conversation. The state and federal “no establishment” constitutional provisions remind the government that questions of when, where, how, and what to worship are outside its realm of competency. If a church or synagogue wants to erect a Ten Commandments monument, it should have every right to do so, but it may not demand that the government use taxpayer dollars and property to do it. The role of these constitutional provisions in debates over school vouchers is important, not because they hobble anything but because they are part of what keeps government from interfering in religion.

Interestingly, Shapiro dismisses the religious liberty concerns raised by President Donald Trump’s Executive Orders on immigration partly because they aren’t crafted well for the purpose candidate Trump asserted. The connection between the candidate’s rhetoric and the president’s actions is just one of the many legal issues that will be examined, along with the impact on Muslims cited by Gans. Regardless of the outcome of the constitutional claims in court, however, religious liberty has been harmed. It takes more than just legal protection to ensure that faith can be freely practiced, and anti-Muslim rhetoric, especially coming from our leaders, denigrates religious liberty for all. Just as in other contexts where the way we talk about religious liberty matters, there are significant consequences when we lose sight of the principle that all religions should be treated the same under the law.

Also from this issue

Lead Essay

  • Religious Liberty and the Fate of Civil Society by Ilya Shapiro

    Ilya Shapiro reviews recent U.S. Supreme Court cases on religious liberty and examines how each of them is the product of government intrusion into civil society - into areas of life that, while public, are nongovernmental. These include organized religions, businesses, and private civic and social groups. These institutions of civil society do much good work, and Americans of all political persuasions are increasingly aware that they are under attack. We are brought into needless conflict with one another, Shapiro writes, whenever the government decrees how these institutions must conduct themselves with regard to matters of conscience.

Response Essays

  • Religious Liberty in the Age of Trump by David H. Gans

    David H. Gans draws our attention away from the Free Exercise Clause and toward the Establishment Clause. A ban on travel from overwhelmingly Muslim countries - and not on travel from others - constitutes an official disfavor, he argues, particularly in light of the clear statements that have been made about the ban’s intent. The greatest threat to religious liberty today is the threat to the religious liberty of Muslims. Meanwhile, he argues, religious exemptions to general laws are often of doubtful legality and tend to threaten the liberties of those whom they do not single out for protection.

  • Partisanship and Exaggeration Threaten Religious Liberty in America by K. Hollyn Hollman

    Religious liberty is protected in two ways in our Constitution: First, the government may not establish any religion, nor may it officially disfavor any; and second, individuals’ free exercise is also protected. K. Hollyn Hollman urges us to reject too-simple narratives about religious liberty and government interference, though, because the politicization of religious liberty is itself a danger to religious liberty. Political point-scoring makes workable compromises harder to find.

  • Time for One America, Not Two by Robin Fretwell Wilson

    Robin Fretwell Wilson issues a call for compromise in today’s battles over the Establishment Clause. There can be no expectation that either the religiously observant, or those to whom they object, will disappear from our society anytime soon. And yet life must go on. Compromise is not such an unreasonable thing to expect, she argues, because all have a vested interest in finding ways to live together despite their differences.

The Conversation