Marc Stern

Unfinished 2019 business in America's ongoing First Amendment wars over religious liberty

Unfinished 2019 business in America's ongoing First Amendment wars over religious liberty

During the year-end news rush, many or most media – and The Religion Guy as well – missed a significant development in the ongoing religious liberty wars that will be playing out in 2019 and well beyond. 

 On Dec. 10, Business Leaders in Christ filed a federal lawsuit against the University of Iowa for removing the group’s on-campus recognition on grounds of discrimination on the basis of sexual orientation.  This club for business students requires its leaders to uphold traditional Christian beliefs, including that “God’s intention for a sexual relationship is to be between a husband and wife.” See local coverage here.

These sorts of disputes across the nation are thought to be a factor in religious citizens’ support for Donald Trump’s surprise election as president. And the Iowa matter is a significant test case because the Trump Department of Justice filed in support of the club Dec. 21, in line with a 2017 religious liberty policy issued by former Attorney General Jeff Sessions. 

The DoJ’s court brief is a forthright presentation of the argument the Iowa club and other such organizations make for freedom of association, freedom of speech and “free exercise of religion” under the Constitution. Contact: Eric Treene of the Civil Rights Division, 202–514-2228 or eric.treene@usdoj.gov.

More broadly, what does the American nation believe these days regarding religious freedom?

That’s the theme of a related and also neglected story, the Nov. 29 issuance of a new “American Charter of Freedom of Religion and Conscience” (info and text here). The years-long negotiations on this text were sponsored by the Religious Freedom Institute, which evolved from a Georgetown University initiative, and Baylor University’s Institute for Studies of Religion. 

The Religion Guy finds this document important, although at 5,000 words needlessly repetitive.  In essence, it asserts that freedom of religiously grounded thought, observance and public action, and the equal rights of conscience for non-believers, are fundamental to the American heritage and the well-being of all societies. 

Adopting lingo from federal court rulings, the charter says these freedoms are not absolute. But any “substantial burden” limiting them “must be justified by a compelling governmental interest” and implemented by “the least restrictive” means possible. The charter also endorses the separation of religion and state.

It is remarkable — and discouraging to The Guy — that basic Bill of Rights tenets even need to be reiterated in this dramatic fashion, because that tells us they are too often neglected -- or rejected.  

The charter has won a notably varied list of initial endorsers because it purposely avoids taking stands on the “sometimes bitter debates” over how to apply these principles, in particular clashes between religious traditionalists and the LGBTQ community.

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Flashback! When religious freedom didn't have scare quotes in The New York Times

Flashback! When religious freedom didn't have scare quotes in The New York Times

As the media firestorm continues in Indiana, your GetReligionistas have heard from readers asking to know the essential differences between the Indiana law that is under attack and the Religious Freedom Restoration Act (RFRA) passed with bipartisan enthusiasm during the administration of President Bill Clinton. Simply stated, the national RFRA has served as the models for the various state RFRA bills through the years, including the law that -- when he was in the Illinois state senate -- drew the support of Barack Obama.

Reporters covering this story may, in addition to actually studying the contents of the bill, want to study the impact these state bills have had in the 19 states that have adopted the same language. This Washington Post piece, with map, is quite helpful. Have these bills been abused? There may be stories there.

Yes, it's crucial for reporters to actually consider what happens when these bills are used in real cases, with real defendants, in real courts, even in conservative zip codes. Consider, for example, this Texas press release in 2009 in which the American Civil Liberties Union cheered the state's RFRA law:

The Texas Supreme Court ruled in favor of Pastor Rick Barr who challenged an ordinance passed by the City of Sinton (Barr v. City of Sinton) to close a half-way house for low-level offenders across from the pastor’s church, Grace Christian Fellowship.
“Today’s decision is significant because it is one of the Court’s first cases to affirmatively construe Texas’ Religious Freedom Restoration Act (RFRA),” said Lisa Graybill, legal director of the ACLU of Texas. ...
“This decision sends a strong message to state and local governments in Texas that the Court will not tolerate state action that targets a religious group, whatever their faith,” said Graybill. The court’s ruling upholds the intent of the RFRA to prevent state and local government officials from substantially burdening the free exercise of religion, including religious practices and religiously motivated conduct, without a compelling justification for doing so, she explained.  ”This is a major victory not just for Pastor Barr and Philemon Homes, but for all Texans who cherish religious freedom.”

However, journalists seeking guidance on style issues related to RFRA laws -- should, for example, terms such as "religious freedom" and "religious liberty" be framed with scare quotes -- may want to consult another authoritative source. That would be The New York Times. However, in this case we are talking about the Times of 1993.

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