Religious freedom, Congress unanimously declared in 1998, “undergirds the very origin and existence of the United States.” Presidents of both parties have called it a “fundamental human right,” a “critical foundation of our Nation’s liberty,” and “essential to our well-being.” And yet today, on Religious Freedom Day, this inalienable right is on shaky ground.
The story of religious freedom in America began long before the nation was born. A group of dissenters from the Church of England founded the Plymouth Colony in 1620, followed a decade later by John Winthrop and a group of Puritans who escaped King Charles I’s persecution and settled the Massachusetts Bay Colony. The Maryland Colony enacted the Act Concerning Religion in 1649, providing that no person would be “troubled … in respect of his or her religion nor in the free exercise thereof.”
In 2015, the late Sen. Orrin Hatch (R-UT) delivered a remarkable series of eight speeches covering this long religious freedom arc. As he outlined, religious freedom in America has three important features:
First, it includes not only religious belief and worship, but also the exercise of faith. The 1776 Virginia Declaration of Rights echoed the Maryland statute in asserting the “free exercise of religion, according to the dictates of conscience.”
Second, the right to exercise religion is not only a natural and fundamental right but also, as the Declaration of Independence affirms, an “inalienable” right.” It is, professor Michael McConnell explains, “a special case” that the Supreme Court has repeatedly said is in a “preferred position.” In fact, future President James Madison wrote in his 1785 Memorial and Remonstrance Against Religious Assessments, religion and “the right … to exercise it” must be “precedent, both in order of time and in degree of obligation, to the claims of Civil Society.”
Third, religious freedom’s status and substance mean that government may interfere with religious exercise only as a last resort and no more than necessary. In Supreme Court legalese, the government may burden religious exercise only as the “least restrictive means” to further a “compelling” purpose.
Religious Freedom Day marks the Virginia legislature’s passage of the Statute for Religious Freedom. Future President Thomas Jefferson originally wrote it in 1777, and Madison not only led its passage in 1786, but also used it when drafting the First Amendment. By then, McConnell writes, “the American states had already experienced 150 years of a higher degree of religious diversity than had existed anywhere else in the world.”
It’s easy to think this freedom simply sustains itself and that threats to it happen elsewhere. In Nigeria, for example, Islamic radicals have slaughtered thousands of Christians. More than one-third of Nigerian counties have Islamic Sharia courts that impose the death penalty for blasphemy. Nigeria has been recommended for designation as a “country of particular concern” by the U.S. Commission on International Religious Freedom every year since 2009, meaning that “the government engages in or tolerates ‘particularly severe’ violations of religious freedom.”
And yet, Nigeria ratified the International Covenant on Civil and Political Rights more than 30 years ago, agreeing that everyone has the right to exercise religion. In fact, the Nigerian Constitution itself guarantees that right. According to the Pew Research Center, dozens of countries that have promised to respect religious freedom by ratifying the International Covenant also have “high” or “very high” restrictions on religious freedom.
Clearly, rhetoric alone is not enough, and it won’t be enough to sustain the religious freedom Americans have long enjoyed. The Supreme Court dramatically weakened the First Amendment’s protection for religious freedom in 1990, saying that “we cannot afford the luxury” of requiring a strong justification for most government actions that burden religious practice.
Congress soon attempted to restore that broad protection of religious freedom through legislation, but the high court restricted it to federal government actions. Hearings in the Senate Finance Committee, however, revealed that the Obama administration completely ignored the deleterious effect on religious freedom of the Affordable Care Act, including its birth control mandate. Culturally revolutionary legislation, such as the Women’s Health Protection Act and the Equality Act, would, if enacted, explicitly reject any protection for religious freedom as the government mandates nationwide abortion and sexuality agendas.
Incoming Virginia Gov. Abigail Spanberger (D) has announced her appointment of former FBI Special Agent Stanley Meador as the commonwealth’s next public safety and homeland security secretary. He was in charge of the Richmond, Virginia, field office when it produced the now-infamous memo branding “traditional” Catholic organizations as draws for “potential domestic violence extremists.” The memo was widely circulated before a whistleblower made it public, and the resulting firestorm caused its withdrawal.
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Far from the inalienable and preferred position that religious freedom has enjoyed for so long, today we hear increasing claims that it is, at best, no more than a policy option and, at worst, a negative and oppressive part of our culture that should be suppressed. Speaking to Congress in the midst of World War II, President Franklin Delano Roosevelt called religious freedom one of the “four essential human freedoms.” And in his 2010 Religious Freedom Day proclamation, President Barack Obama affirmed that it is “the natural right of all humanity — not a privilege for any government to give or take away.”
That’s the rhetoric. The reality will depend on our heeding the words of their predecessor, President Andrew Jackson, who in his farewell address on March 4, 1837, said, “But you must remember, my fellow-citizens, that eternal vigilance by the people is the price of liberty, and that you must pay the price if you wish to secure the blessing.”
Thomas Jipping is a senior legal fellow at Advancing American Freedom.