WASHINGTON (ABP) — The challenges surrounding the intersection of church, state and the freedom of conscience, according to experts in the field, were as old as the hills and as new as morning in the last decade. And while the details might differ, they say, the story arc will be similar in the decade that began Jan. 1.
Legal scholars and church-state activists consulted for this story said that there were significant changes — for good and for ill — in regard to both legal and cultural aspects of religious liberty in the United States in the last decade. For the future, they predicted continuing trends in five broad areas: the growth in religious diversity; the rising profile of non-believers; disputes over the role of Islam; emerging conflicts between religious freedom and gay rights; and perils posed by greater government support for religious institutions and fewer government protections for individuals’ and organizations’ free exercise of religion.
Religious diversity
While America’s broad religious diversity has frequently been one of the country’s strengths and occasionally a source of conflict, ballooning diversity is presenting new challenges to the centuries-old paradigm created by the First Amendment’s religion clauses.
Charles Haynes
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“We are now in a place of just exploding diversity,” said Charles Haynes, First Amendment scholar at the Freedom Forum and director of the Newseum’s Religious Freedom Education Project. “Hindus have found a voice in this country; they’re becoming very active and … speaking up when they feel they’ve been left out or marginalized in schools and elsewhere. Sikhs are speaking up. Non-believers, atheist groups are speaking up. So it’s a very different place — and … I think a lot of people who are some of the more angry groups out there, they feel they’re losing their country.”
Old religious majorities can feel threatened by the rising power of religious minorities, who have the same protections under the First Amendment that Christians and Jews do, Haynes and others said. And legal protections are, in the long run, only as strong as the cultural values undergirding them.
“We must not only keep government neutral on matters of religion but also be willing culturally to tolerate our many differences,” said Brent Walker, executive director of the Baptist Joint Committee for Religious Liberty. “Our pluralism is a plus; not just something to be tolerated.”
The rise of non-believers
One aspect of growing religious diversity is the increasing profile and voice of the irreligious. “I think that non-believers have found their voice in the United States and are increasingly visible — speaking up, filing lawsuits and demanding to be a full part of the discussion about what kind of country we’re going to be,” Haynes said.
Melissa Rogers
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Melissa Rogers, a Baptist who is director of Wake Forest Divinity School’s Center for Religion and Public Affairs and a senior fellow at the Brookings Institution, said “aggressive campaigns” by high-profile atheists like Christopher Hitchens and Sam Harris were one of the biggest developments of the last decade in religious liberty.
But how the self-described Christian majority reacts is crucial. Some have appealed to their interpretation of American history to fight back against the rise of religious minorities. Haynes said that trend concerns him.
“I think there are now many religious, Christian Americans who actually take it as historical fact that the United States was founded as a Christian nation and is meant to be a nation where Christianity is privileged and the separation of church and state is a myth that is not found in the First Amendment,” he said. “I think that these views are now widely held among many Christian groups, and I think in the past decade that’s been a very significant, almost kind of stealth, success story for the folks that have been pushing that view of America and American history.”
Battles over Islam
One particular minority group on the rise — American Muslims — has been the subject of intense debate in the past decade. The debate’s not likely to end anytime soon.
Haynes said a long-running, below-the-radar trend of simmering Islamophobia boiled over in 2010 — in large part due to the general discontent and political anger raging across the country and the explosion of the so-called “Ground Zero mosque” story into the national news in the late summer.
“One of the things about last year … that was so misunderstood was that it wasn’t just a sudden outburst of fear or anger at Muslims or Islam; it was really the result of a long-term campaign to demonize Islam — a successful campaign,” he said.
“Until the Tea Party movement, until the Ground Zero controversy, a lot of the opposition to Muslims and to mosques and things like that were not respectable and were not really visible. But I think … a lot of the trend in the last couple of years and particularly this past year has been that this has now gone mainstream.”
Rep. Peter King (R-N.Y.), the new chairman of the House Homeland Security Committee, has announced his intention to hold hearings on the radicalization of mosques in the United States. Muslims and many religious-freedom groups have criticized the move as simply providing a platform for Islamophobes.
Rogers said King’s hearings “will likely reignite a bitter national debate over the place of Islam in America, terrorism and free-exercise rights.”
Another growing aspect of the debate over Islam may include attempts to ban the use of Sharia, or Islamic law, like one that Oklahoma voters approved in November. Rogers and Haynes both said that, depending on what political advantage they provide, similar proposals may appear on the ballot in more states in 2012.
“I think politicians in some other states will push measures similar to the Oklahoma one, but I would find it difficult to generalize after that,” Rogers said. “I think it'd be necessary to do a state-by-state analysis to guess whether those measures would be adopted and whether, if adopted, they would be likely to have a significant effect on turnout.”
However, Haynes noted, national politicians advocating anti-Sharia measures are in peril of overplaying their hand.
“Newt Gingrich has already signaled he is ready to use it. Sarah Palin has already signaled that she is ready to use it as an issue,” he said. “But, then again, it’s a big risk for people who do it — because it’s so transparently nonsense; because one would think the more it gets looked at, the more people will realize there is no threat from Sharia law in the United States.”
Religious freedom v. other rights
One area of church-state law that may explode in the next few years is conflicts between expanding civil rights for gays and the freedom of those who have theological beliefs condemning homosexuality.
Polls trending rapidly toward acceptance of gay rights among the broader society will likely mean increased support for legal same-sex marriage as well as non-discrimination laws that provide gays equal protection in employment and housing. But those rights, once protected, may come into conflict with the rights of those — such as landlords or public employees — who feel a compulsion to avoid complicity something they view as sinful.
Chip Lupu
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Chip Lupu, a First Amendment expert at George Washington University Law School, said such conflicts were likely because theological opposition to homosexuality “has been increasingly marginalized in the culture, because young people increasingly reject it.”
Haynes said the enmity between conservative religious groups and gay-rights activists could spell trouble when the gay groups gain the upper hand.
“I think that history shows that often when an oppressed group becomes supported by the majority … they don’t behave very well towards those they vanquished,” he said. “And I think that one of the challenges for the gay-rights movement … is to take religious freedom very seriously even as they are successful at advancing gay rights.”
Haynes pointed to a recent example as a positive way forward: gay-rights activists and Mormon officials working together to pass a Salt Lake City ordinance that protected gays from employment and housing discrimination while carving out exemptions for religious organizations. The effort, he said, “was an example of how there can be ways where both sides can recognize the legitimate claims of both sides.”
Legal trends: Establishment and free exercise
Recent decades have seen twin trends in the way courts interpret the religion clauses of the First Amendment. In regard to the Establishment Clause, which prevents government endorsement of religion, the courts have generally — and especially in the last decade — softened the barrier that previously prevented the state from funding religious entities. Meanwhile, the courts have also backed away from a robust interpretation of the Free Exercise Clause, which protects individuals’ and groups religious expression from undue government interference.
The results have frustrated religious leaders across the ideological spectrum.
Brent Walker
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“Unfortunately, the clauses have been watered down to suggest religion needs only to be treated the same as other interests. In fact, often religion should be treated differently — to ensure free exercise by lifting governmentally imposed burdens and prevent establishments by prohibiting government sponsorship of religion,” wrote the BJC’s Walker, in an end-of-the-decade analysis. “Religion is special and is treated specially by the First Amendment. We must recognize its uniqueness if religious liberty in this country is to be vital over the next decade.”
Haynes said the most dramatic trend over the last decade has been on the funding side — from a near-absolute ban on direct or indirect government funding to deeply religious institutions to interpretations that allow tax dollars to flow to churches.
“I think that now we’ve crossed into a whole new arena where a good bit of government funding reaches religious groups,” he said. “And even though it may be well-motivated and intended to expand help for those in need … think in the long run it undermines religious freedom because it, I think, chips away at the autonomy of religious groups; it makes religious groups more dependent on government money and thus really undermines the commitment to voluntarism and religion.”
Meanwhile, a crucial Supreme Court decision in 1990 — Employment Division v. Smith — significantly lowered the legal bar that government entities must reach before interfering with free-exercise rights. Attempts to remedy the decision through both legislative and judicial remedies since have met with mixed results.
Haynes lamented that few Americans seem to know or care about the perilous current legal status of their free-exercise rights.
“The American people, I think, are unaware of the erosion of free-exercise protection under the First Amendment and then the efforts to restore it through legislation and litigation,” he said. “It does seem arcane. I mean, all this stuff — the compelling-interest test and all — that’s lost on most people. Most people, I think, take for granted that they have freedom of religion and are not concerned about government interfering with the practice of faith.”
Haynes said people may not wake up until it’s too late. “So, my church needs to expand and suddenly the government says it can’t because of historical preservation, or there’s a law passed saying that nobody can distribute literature in certain areas….,” he said, for example. “You know, it just doesn’t hit people until it affects some practice that’s important to them.”
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Robert Marus is managing editor and Washington bureau chief for Associated Baptist Press.
Related ABP stories:
Divide over Islam dominated religious-freedom news in 2010 (12/29/2010)
Analysis: Mixed bag for social conservatives in midterm election (11/3/2010)
Opinion: The decade in religious liberty (1/28/2010)
On church-state issues, Obama brings new perspective, slow policy change (7/8/2010)
Supreme Court upholds RFRA in saying OK to sacramental drug (2/21/2006)