President Trump is said to be considering an executive order barring the federal government from punishing people or institutions that support traditional religious approaches to contemporary social issues.
The language is similar to a bill expected to be reintroduced by Republican Senators Ted Cruz of Texas and Mike Lee of Utah called the First Amendment Defense Act.
After a widely circulated draft order aroused considerable opposition from the “progressive” community, no further action was taken. But White House spokesman Sean Spicer, asked recently whether such an order might still be signed, said that the president “will continue to fulfill” commitments he had made.
The issue pits two core American values — freedom of religion and freedom from discrimination — against one another, and has prompted a showdown in legislatures and courts across the country.
At the heart of the debate lies the interpretation of the U.S. Constitution’s First Amendment. Congress is famously barred by it from enacting “an establishment of religion,” but it also prohibits “the free exercise thereof.” What, the question is, does it mean to “exercise” one’s religion? Or, better, how far does the protection of religious freedom extend?
By definition, religions have ideals (and anti-ideals), and laws reflecting them. A democratic society has the same. When a religious law based on a belief clashes with a societal law based on contemporary mores, which is to yield to the other?
Last September, the U.S. Commission on Civil Rights issued a report on the debate, and came down squarely on the side of religious stances having to yield to societal “nondiscrimination” statutes. The commission recommended that “civil rights protections” were of “preeminent” importance and that religious exemptions to such policies “must be weighed carefully and defined narrowly on a fact-specific basis.”
The commission report sparked a protest letter signed by 17 faith leaders, arguing that the report “stigmatizes tens of millions of religious Americans, their communities and their faith-based institutions, and threatens the religious freedom of all our citizens.”
Strong words, but not inaccurate ones.
The commission chairman at the time, Martin R. Castro, engaged in some name-calling, “The phrases ‘religious liberty’ and ‘religious freedom’,” he said, “will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism… or any form of intolerance.”
From another perspective, of course, the “intolerance” here is Mr. Castro’s, in his denial of the fundamental right of Americans to remain faithful to their religious heritages.
Last month, the Washington state Supreme Court unanimously ruled against a florist who refused to provide floral arrangements for a ceremony that went against her deeply held religious convictions. The court held that the government had a compelling interest in “eradicating barriers to the equal treatment of all citizens in the commercial marketplace.”
That case, or some other one similarly embodying the clash between religious and civil rights, may eventually be considered by the U.S. Supreme Court.
If it is, the Justices would do well to have in mind that freedom of religion in this land predates even the Constitution. It was first embraced as a principle in the founding of the colony of Maryland by George Calvert, first Lord Baltimore, in 1634.
Within years, other colonies, including Rhode Island, Connecticut, New Jersey and Pennsylvania, followed suit.
By contrast, the term “civil rights” remains a nebulous one, used in some contexts to refer to basic freedom, as in the Declaration of Independence’s “Life, Liberty and the pursuit of Happiness.” In the 19th and 20th centuries, the term became synonymous with the struggle against slavery and, later, in the protection of African-Americans from overt acts of bigotry.
Today, though, it has morphed into a catch-all for privileges never dreamed of by the nation’s Founding Fathers. Under its rubric, the Supreme Court has essentially created a new “right to privacy” to permit things that were anathema to civilized society for centuries; and groups that are in no way disadvantaged by the fact that some people consider what they celebrate to be religiously objectionable are morally equated with people who, by the color of their skin, were once beaten and lynched with impunity.
Truth be told, the crusade of “progressive” forces in our country today is not for equal rights for deprived citizens. It is, rather, for the activists’ own right to brand religious minorities who disagree with them pariahs who can be penalized for their faith.
We can live with name-calling. It has a time-honored, if ignominious, history.
Equally time-honored, though, and rightly venerated, is our nation’s history of respect for its citizens’ religious views.
We hope President Trump and the Supreme Court will show that they understand that.