We can celebrate religious freedom by keeping religion separate from government

January 16 is Religious Freedom Day and John Ragosta discusses how Thomas Jefferson offered guidance for today’s difficult questions about religion and the law. Mr. Ragosta is the lead faculty for Lifetime Learning‘s Summer Jefferson Symposium and a historian at the Robert H. Smith International Center for Jefferson Studies at Monticello.

The following article by John Ragosta was published on January 16, 2020 in the Dallas Morning News.

We can celebrate religious freedom by keeping religion separate from government
Thomas Jefferson offered guidance for today’s difficult questions about religious freedom.

It’s Religious Freedom Day, when we celebrate America’s heritage of religious freedom.

But what does American religious freedom mean? Everyone claims to support religious freedom, but if you watch the news, it’s clear that religious freedom means very different things to different people.

· In Mississippi, a wedding venue refused to rent to an interracial couple. The owner cited her Christian religious beliefs (although she later recanted).

· Around the country, commercial vendors refuse to provide services for gay weddings on religious grounds.

· In Dallas, Judge Tammy Kemp gave convicted felon Amber Guyger a Bible, telling the defendant that reading “this is your job for the next month.”

Are all of these protected religious freedom?

We can start by remembering that Religious Freedom Day commemorates adoption of Thomas Jefferson’s Statute for Religious Freedom. In its first religion case, the Supreme Court unanimously recognized that Jefferson’s law “defined” religious freedom and embraced his letter to Danbury Baptists, declaring a wall of separation between church and state.

A central tenet of American religious freedom is equal freedom for all. Who can disagree that all people, “created equal,” have equal rights to religious freedom? Yet applying this principle raises questions.

The government cannot prefer one religion (even Christianity), or all religion, over any other. In fact, Jefferson’s statute was adopted as an alternative to a proposed law promoting all Christian sects. While undoubtedly most Americans were Christian, Christianity was to receive no official, legal sanction under the Constitution.

This is why it is troubling when a judge, in her courtroom after the end of a trial, still in official robes, gives a Bible to a defendant after she says she doesn’t have one, and tells the defendant to read it. As a private citizen, any official can promote her own religion, but a person cannot use the office to do so. Imagine a Muslim judge handing out Qurans. If you think that would be inappropriate, so was this.

The same principle applies when a government agency begins a meeting with an invocation: The proceeding must be equally open to all religions, be they Muslim, Buddhist, Wiccan, or people with no religion, and the government forum cannot be used to proselytize. Unfortunately, too many county boards abuse the Constitution when they use their meetings to promote religion; Jefferson and James Madison called such government use of religion “hypocrisy,” a “perversion” of true religion.

This is not anti-religious. Jefferson expected a vibrant religion on the other, nongovernmental side of the wall of separation, and religion blossomed when separated from government.

Another religious freedom problem arises with claims that a law interferes with a person’s religious belief, say a law prohibiting discrimination against gays or requiring health insurance (including contraceptives) for all employees.

In an important opinion written by Justice Antonin Scalia, the Supreme Court explained that a person’s religion cannot justify exemption from a “neutral” law, a law that does not directly regulate religion or discriminate against religion. Jefferson agreed, giving this example: If a country forbids killing lambs during a war (when wool is needed for uniforms), a person is not exempt because lamb is needed for a religious feast. If the government forbids only Jews from killing lambs, or forbids only killing of lambs for religious purposes, that law would be invalid; it is not “impartial regulation,” to use Jefferson’s term, “neutral” to use the court’s term.

But if the government adopts a general law, one cannot plead religious freedom and ignore it. If everyone can claim a religious exemption from laws, it would be chaos.

Many people applauded when a justice of the peace cited religion to refuse to perform gay weddings, but the same argument has been used to attack biracial weddings. If the law forbids discrimination on race or gender-identification, the Constitution provides no religious exemption (although Congress can limit the law’s application).

This has been greatly complicated by the so-called Religious Freedom Restoration Act that sought to limit the Supreme Court decision upholding neutral laws. Under RFRA, if a federal law impairs someone’s religion, an exemption is effectively provided unless the government can show that its interest is compelling and the law narrowly tailored to that interest, an almost impossible standard. This and similar state laws have brought about the wedding cake and related cases.

There is, though, a serious problem with this expansion of religious freedom. Courts cannot challenge what a person claims is her or his sincere religious belief. One certainly hopes that the court will continue to strike down racial discrimination based on religion, but undoubtedly (if sadly) many people continue to believe that their religion prohibits interracial dating. How will the Court respond when polygamists claim that anti-polygamy laws impair their religious right to plural marriage? Or when a union organizer claims restrictions on unions interfere with his Marxist religion?

Creating a religious exception to neutral laws is a dangerous thing. When Thomas Jefferson and Antonin Scalia agree on a critical element of religious freedom, it would be wise to take notice.