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 the Hobby Lobby case was extremely narrow but also extremely important. Religious liberty is the first freedom and must be protected from government.
America always has struggled with the place of faith in society. The colonists were generally religious. However, beliefs were not uniform: though the vast majority was Protestant, many were dissenters who had been persecuted for their faith in England. There also were Catholics, Jews, Deists, and “freethinkers,” or atheists.
Whatever their personal faith — or lack thereof — the Constitution’s framers recognized the importance of religion. It speaks to the transcendent and trumps political, economic, and social opinions. That makes the impulse powerful, even dangerous.
A faith that is real and vibrant naturally reaches beyond the purely personal. Belief in a theistic transcendent cannot be internalized. Instead, it requires action. A genuine religion must be lived out. It normally is exercised in community with others. For instance, Jesus instructed his followers to be salt and light to the world around them. In this way the freedom of religion must be far more than the opportunity to worship once a week in a church.
The founders were steeped in history and philosophy and chose not to create a church‐based government. Politicians and clerics had not been strangers. Past experiments had turned out tragically for both human liberty and religious faith. Dominant churches employed the state to enforce participation and suppress freedom of conscience, while ambitious politicians subverted religion to advance their careers and expand their power.
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. Its reach was limited, with most issues left to states — which also left most Americans largely alone. There was little opportunity for either federal establishment of religion or interference with free exercise of religion.
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. For instance, Deist Thomas Jefferson asked whether “the liberties of a nation [can] be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God?”
However, that world has disappeared. Today there is little government does not do. States as well as the federal government provide funding, impose mandates, tax activities, and deploy regulations, pushing ever more aspects of life into the public square. Which inevitably affects the exercise of people’s religious faith.
Equally important, Americans have increasingly divergent views of the transcendent. Not only are there new faiths — Buddhists, Muslims, and Hindus, for instance — but far more agnostics and atheists. How, then, to build a community in which people can live out their faiths alongside those of other religions and beliefs?
There may be no more tortured area of federal jurisprudence. The First Amendment simultaneously guarantees individuals the right to practice and denies government the right to impose. Courts once required government to have a “compelling state interest” to interfere with religious belief or practice. Two decades ago the Supreme Court substituted a far weaker standard, requiring evidence that religion was targeted. Congress then sought to restore the original standard with the Religious Freedom Restoration Act, which actually was the basis of the Supreme Court’s decision in Hobby Lobby.
Determining establishment is even harder. When the Constitution was ratified, many states supported official churches. The most important objective of the First Amendment originally was to prevent a similar arrangement at the national level. Since then the Supreme Court has applied the provision to the states. The justices long employed a three‐point test involving purpose, primary effect, and excessive entanglement. They seemed to make up the law as they went along, constantly distinguishing prior rulings based on arcane differences.
Alternative approaches include focusing on coercion, endorsement, or neutrality. But no doctrine appears to have adequately taken into account the steady expansion of government. Applying more restrictive rules to religious practices or activities in 1789 would have affected few Americans. There might have been no religious prayer to open Congress, but most people’s lives would have gone on essentially as before.
Not so today. Since government 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. While the early Americans may not have been as concerned about general support for religion, our society is spiritually far more diverse. The shift in shared worldview has transformed the world in which the amendment is being applied.
Preventing state support matters not just to nonbelievers but also to other believers. Thomas Jefferson famously talked of a “wall of separation” in a letter to Baptists, who tended to oppose state/church entanglement. “Establishing” a church necessarily infringes the “free exercise” of faith by others. Indeed, a member of a dissenting church might be even more concerned than an atheist over being forced to underwrite an established church.
There should be strong protection from even unintentional infringement of religious practice. In general, the government’s default position should be to respect liberty, and especially religious liberty. The specific policy should reflect the importance of the interest to both individual and state and ease of government accommodation. A serious infringement should require a compelling interest as justification.
This approach would be good for individuals, since they would be less often forced to choose between government and God. Restricting infringement also would be good for society, which is enriched by people living out their faiths.
Finally, limiting public interference would be good for government, since that would reduce confrontations with citizens willing to defy the law for their faith. The state rarely truly “wins” such battles. Justice Harry Blackmun once worried about struggles among contending religious groups straining the “political system to the breaking point.” That is most likely to happen when government needlessly interferes with private religious practice.
Unfortunately, bitter confrontations have increased as government has expanded its role. Suddenly the most mundane policy dispute becomes a fight over the transcendent. As with the Washington’s contraceptives mandate.
As public policy the requirement makes no sense. Normally insurance protects against unexpected events threatening significant losses. In contrast, people choose when to use contraceptives, a low‐cost product, turning premiums into advance payment for routine services. Even so, the vast majority of insurance plans, around 95 percent, covered contraceptives simply because it was economic to do so, considering the expense of an unwanted pregnancy. The few people without “insurance” coverage could simply purchase contraceptives like they do any other uncovered product or service.
Indeed, the mandate does not provide “free” contraceptives. Rather, it redistributes some of the cost to people who do not use them, for whatever reason. In this way, contraception was treated as more important than procedures such as cardiac care, breast or prostate cancer treatment, and support for mental illness, for which normal cost‐sharing applies. In fact, the mandate is more political than medical, a reward for activist political constituencies and a punishment for those with unpopular beliefs. (Personally, I have no objection to the use or coverage of contraceptives.) It is a prime example of the misuse of government for ideological ends.
Of course, there’s nothing unusual about political factions twisting government to their own advantage. Losing is a standard aspect of democratic politics. However, government‐as‐usual does not justify overriding deeply‐held religious beliefs. It’s bad enough for politicians to steal your money. But stealing it while forcing you to violate your faith is especially odious.
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. The growing state has sucked more of formerly private life into the public square. As government moves beyond its core functions, it increasingly threatens Americans’ spiritual beliefs. Today states and 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. This demonstrates the inherent tension between the First Amendment’s two religious clauses. To exclude religion from a large and growing public square is to burden free exercise. To include it is to threaten to establish religion. Sufficient space is required for all people. In effect, the First Amendment needs to be what John Courtney Murray called “articles of peace” rather than “articles of faith.” Setting religious parameters for the public square requires careful balancing—and considering how much government is necessary.
If nothing else, people should be charitable. Those hoping to exercise their faith in public should be sensitive to those who don’t share their beliefs. Those who don’t share others’ beliefs should be slow to take offense. Not every controversy must be decided in court.
Policy should distinguish among irritation, discomfort, social pressure, and coercion. In general, the first should be accommodated and the latter forbidden. In between cases fall along a continuum.
Most important, government’s role should be limited. Lawmakers should minimize state involvement to reduce the need for winner‐take‐all political decisions. When it comes to education, 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. Government also should encourage greater choice within the public square, allowing alternative schools, classes, and perspectives. The more options, the less important the political fight over state control.
The treatment of public spaces should depend on their purpose. Core symbols of government authority — legislative chambers, executive departments, court houses — should be clearly civil and civic, representing all, irrespective of faith. Lands, facilities, and services run by governments but not uniquely representing public functions, such as parks, airports, and buses, should be treated as spaces open for debate, where competing arguments and symbols have a place. For instance, instead of burying a crèche in a secular Christmas display, allow all faiths and non‐faiths to participate.
Where government is providing money, such as for social services, religious organizations should be able to participate like secular agencies. There should be no money to promote churches or sectarian beliefs, but a religious drug treatment organization should not be barred from applying because it is religious. (I believe accepting public funds endangers the independence of faith groups, but that is a practical, rather than constitutional, problem.) If government is going to tax and spend to achieve a policy end, religious organizations should have equal access to those funds.
At the same time, decisions should be transferred from lawmakers to taxpayers, taking them out of the political system. For instance, privatizing schools while providing financial support to poor families would reduce public conflict over moral education. Giving vouchers to families for use in private schools is better than giving grants to private schools. Allowing people to take larger tax deductions or credits for charity is better than providing taxpayer funds to social service agencies.
In general, the application of First Amendment rules should reflect trends in government growth. The more the state does, the more leeway religious organizations should have to participate. Otherwise expanding government would reduce religious liberty by squeezing out expressions of spiritual faith and values.
The ultimate objective should be to preserve people’s freedom to believe or not believe — and to act on those beliefs. Americans should be protected from interference with their faith as well as attempts by others to impose their beliefs. The institutions of government and church should be kept far apart, while the political realm is left open to arguments of all sorts, whether based on theism, humanism, or something else. If government expands, asserting control over health care, for instance, it should accommodate rather than expunge its citizens’ most deeply held values. Better that the state not absorbs so much of private life.
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. If the political realm continues to expand, Americans like the owners of Hobby Lobby will be forced to increasingly call upon the First Amendment and legislation like RFRA to protect their religious liberty.