The federal government has taken over ever larger swaths of American life, most recently health care. ObamaCare demonstrates that as state dictates expand, religious liberties recede.
The Supreme Court’s ruling in Burwell v. Hobby Lobby was extremely narrow but also extremely important. Religious liberty is the first freedom and must be protected from government.
The Founders chose not to create a church-based government. Previous experiments had turned out tragically for both human liberty and religious faith.
Religion’s relationship to politics has become more important as politics has swallowed more of American life. In 1789, the new national government was minuscule. Moreover, in America’s early days, there was a shared Biblical worldview, if not faith, and a common belief in the value of civil religion.
However, that world has disappeared. Today there is little government does not do, pushing ever more aspects of life into the public square. Equally important, Americans have increasingly divergent views of the transcendent. The First Amendment simultaneously guarantees individuals the right to practice and denies government the right to impose. There may be no more tortured area of federal jurisprudence.
But no doctrine appears to adequately take into account the steady expansion of government. I argue in my new column on Forbes online: “Since the state not just touches but controls far more of society, it threatens to marginalize religion by creating what Richard John Neuhaus called the ‘naked public square.’ A new approach is necessary to implement the Founders’ vision, protect the spiritual liberty of all, and encourage political peace.”
The prohibition against government promotion of sectarian faith or particular churches should be absolute. Doing so would be the most unfair, divisive, and contrary to the principles of a free society.
There should be strong protection from even unintentional infringement of religious practice. In general, the government’s default position should be to respect liberty. A serious infringement should require a compelling interest as justification. Unfortunately, bitter confrontations have increased as government has expanded its role. As with the Washington’s contraceptives mandate.
Prudential balancing should determine cases in the expanded public square. In many instances government involvement—providing services, funding programs, and owning property—can be seen either as establishing religion or protecting free exercise.
As government moves beyond its core functions, it increasingly threatens Americans’ spiritual beliefs. Today states and especially the national government intrude in education, health care, charity, employment, social services, job training, and more. Government prohibitions become, in effect, bans on private expression.
Of course, allowing manifestations of faith after the state is involved also may challenge those of no faith or different faiths. Sufficient space is required for all people. Setting religious parameters for the public square requires careful balancing—and considering how much government is necessary.
Lawmakers should minimize state involvement to reduce the need for winner-take-all political decisions. For instance, government should reduce barriers to private schools and home schooling, which allow people to follow their faith without infringing the beliefs of others.
Where government is providing money, such as for social services, religious organizations should be able to participate like secular agencies. At the same time, decisions should be transferred from lawmakers to taxpayers. For instance, privatizing schools while providing financial support to poor families would reduce conflict over moral education. Allowing people to take larger tax deductions or credits for charity is better than sending taxpayer funds to social service agencies.
The Hobby Lobby decision was second best. The best way to prevent misuse of the state by clerics and misuse of religion by politicians is to keep government small. Until then, Americans will be forced to increasingly call upon the First Amendment and legislation like Religious Freedom Restoration Act, upon which Hobby Lobby as decided, to protect their religious liberty.