They are the first words in the nation’s Bill of Rights, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."
What is supposed to be a safeguard delineating the separate operations of church and state in America is among the republic’s founding values, the one that set the United States apart from other nations.
Whether that wall still holds, or whether government is trying to make an end run around it through ever-encroaching regulations was the subject of “Religious Liberty in 2012: Still the First Freedom?” a ninety minute expert roundtable discussion held at the National Press Club on May 21.
Organized by Professor Mark Rienzi, The Catholic University of America Columbus School of Law, and co-sponsored by the Becket Fund for Religious Liberty, the program featured analysis, debate and commentary by some of the nation’s leading scholars and thinkers about religious liberty.
The discussion was moderated by Dr. Thomas Farr, (above left) director of the Religious Freedom Project at Georgetown University’s Berkley Center for Religion, Peace, and World Affairs, where he is a senior fellow. Farr deftly led the group through such questions as the definition of religious liberty and whether it is thriving in America in 2012.
Coincidentally, the long-scheduled discussion was held just hours after The Catholic University of America (CUA) announced it had joined a lawsuit to block implementation of the mandate by the Department of Health and Human Services that would require CUA and other religious institutions to provide health insurance coverage for surgical sterilization, prescription contraceptives, and drugs that cause early-stage abortions.
Perhaps with that action fresh in his mind, CUA President John Garvey (left) said “I think freedom of religion is in a bad way,” a sentiment shared by his fellow panelists.
The group did not blame a particular president, politician, or party for what they agreed has been a gradual erosion of religious freedom in America. Indeed, Garvey noted that the lines began to blur with a 1990 Supreme Court decision, “Employment Division, Department of Human Resources of Oregon v. Smith,” where the majority opinion authored by conservative Justice Antonin Scalia.
In that case, the high court determined that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual. Although states have the power to accommodate otherwise illegal acts done in pursuit of religious beliefs, they are not required to do so, said the court.
“Twenty-two years later, we still don’t know what that means,” observed Professor Douglas Laycock, University of Virginia Law School. Laycock conceded, however, that the situation of religious liberty has improved over the past two or three decades with regard to funding and neutrality issues.
Helen Alvaré, (left, center) an associate professor of law with George Mason University School Law and an advisor to Pope Benedict XVI's Pontifical Council for the Laity, decried “the naming of religious liberty as the enemy of human rights” regarding socially contentious issues such as same-sex marriage.
“You don’t need to talk about religion at all to justify a compelling state interest in a man-woman-child understanding of marriage,” said Alvaré, citing consistent evidence that alternative family forms often carry a high socio-economic cost.
The panelists did not agree with each other on several points, but there was a consensus view that religiously-informed points of view had every right to be out there for public discussion.
In 2008, California voters approved a referendum defining marriage as between a man and a woman. After four years of court battles, the Ninth Circuit Court of Appeals voided Proposition 8, issuing a stay on the ruling pending further appeals.
The wording of the court’s decision, said Dr. Farr, seemed to indicate that the justices considered opposition to same-sex marriage on religious grounds illegitimate.
Asma Uddin, an attorney with The Becket Fund for Religious Liberty and the founder and editor-in-chief of altmuslimah.com, a web magazine dedicated to issues on gender and Islam, spoke to the agreement of the entire panel by saying “Religious ideas have to compete in the marketplace of ideas just like any others.”