Religious Freedom 101: How did U.S. get to the point where religious services are ‘nonessential’?

Written by William C. Duncan

May 22, 2020

This is the fourth and last installment in a series about the history of religious freedom in the United States. Click the following links to read part 1, part 2 and part 3.

Key Points

  • The history of religious freedom to this point followed a trajectory towards more acceptance, but religious freedom has again become a contentious issue.
  • Judicial decisions, cultural changes, and increased government regulation have all contributed to the current contention over religion.
  • In the early 1990s, the U.S. Supreme Court abandoned an interpretation of the Constitution that was highly protective of religious freedom, leaving religious protections to the whims of popular opinion.
  • A more active government creates more opportunities for people of faith and churches to run up against new regulations.
  • A decrease in religious practice and adherence among Americans means an increasing number are unsympathetic to claims of religious freedom.
  • Though it will require hard work to restore robust protections for religious liberty, doing so is worth the effort.

During the early responses to the COVID-19 pandemic, many states divided businesses and activities into the categories of essential and nonessential. Essential activities were allowed to proceed while nonessential activities were precluded or strictly limited.

It was (and is) galling to people of faith that religious services were often lumped into the nonessential category. The situation was made worse by questionable classification decisions. Judge Gregory Van Tatenhove, a federal judge in Kentucky, highlighted this discrepancy, noting that religious services – even those carefully employing social distancing measures – were banned while “hardware stores, laundromats and dry cleaners, law offices, and liquor stores” were allowed to continue to operate.

In the last installment of Sutherland Institute’s history of religious freedom in the United States, we saw that by the 1970s, legal respect for religious freedom was probably at its highest point since the framing of the Constitution. It took more than 200 years from the first faltering steps towards religious tolerance in the colonial period, through the establishment of an ideal in the First Amendment to the U.S. Constitution, through repeated failures to extend that ideal to minority religious groups, to increasing acceptance and tolerance in the legal rules applied in cases where religious practices were burdened by government actions.

Now, four decades later, religious freedom is a contested value and the U.S. Supreme Court typically decides a religious freedom dispute each term (three this term). What happened?

There appear to be three factors at work: a decline in formal legal protection of religious freedom; an increase in general regulations that impact religious practice; and a decline in religiosity among Americans generally.

Formal legal protections

As described in the last installment, in 1972, the U.S. Supreme Court decided that Wisconsin’s interest in public education had to yield to the religious objections of Amish parents who wanted their children to be excused from school after the eighth grade.

The court followed a decision from a decade earlier in which a South Carolina court said an employer could not deny unemployment benefits to a woman fired from her job for declining to work on her Sabbath.

The major change in legal protection of religious freedom came just 18 years later in another unemployment case, known as Employment Division v. Smith. The case involved Al Smith, a member of the Klamath Tribe in Oregon. After successfully overcoming an alcohol addiction, he spent his life helping Native Americans with alcohol and drug addiction. In the early 1980s, he took a job with a private addiction treatment program. He was invited to a Native American church which took part in the ceremonial use of peyote, which was illegal in Oregon. His employer threatened to fire him if he attended the ceremony. As a profile in The Atlantic explained: “He had been warned, but the tone of disrespect to an Ancient Native faith rankled. He later recalled his immediate response: ‘You can’t tell me that I can’t go to church!’”

Smith was fired and denied unemployment benefits, and he took his case to the U.S. Supreme Court.

The court made a dramatic reversal in its approach to religious liberty, abandoning the principle that the government would need to show a compelling reason for burdening religious practice and adopting instead a rule from the 1870s – a high point not of religious toleration, but of religious persecution – from a case that had justified jailing members of The Church of Jesus Christ of Latter-day Saints for practicing polygamy.

The new (old) rule was that the government could impose a burden on religious practice as long as it also burdened the same conduct by others.

This provides some protection for people of faith. When a Florida city banned possession of animals for the purpose of killing them and drafted the law so that it would only apply to a particular religious ceremonial practice, the court said this was unconstitutional. But if all private chicken killing were banned, the religious practice could be as well, so the religious protection was not robust.

Interestingly, Congress passed a law just three years after the Smith ruling, the Religious Freedom Restoration Act, or RFRA, to restore the old constitutional analysis (burdening religious practice requires a compelling government purpose) as a statute governing the actions of the federal and state governments. The Supreme Court, however, ruled in 1997 that this federal law could not be applied to the states.

So, to the degree Congress or state legislatures are willing to protect religious practices, there can be legal protection, but this protection (including RFRA) will always be dependent on political majorities. By contrast, when the protection is understood to come directly from the First Amendment, it is not subject to popular disapproval of a particular minority religion. This is particularly important for those whose beliefs and practices are in the minority and not well understood.

Government regulations

This decrease in legal protection (since it is now always up for revision) for religious freedom is magnified by the drastically increased opportunities for conflict between government regulations and religious practice.

Take the example of the Little Sisters of the Poor, currently embroiled in years of litigation over whether they will pay for contraceptive coverage for employees. When the Little Sisters first came to the United States in 1868, the idea that the national government would ask anything of them, much less that they act in opposition to their religious beliefs, would have been ludicrous.

The examples could be multiplied: zoning laws, employment regulations, unemployment benefits. Federal, state and local governments are involved in an ever-greater swath of daily life, and this means that the practices of people of faith and religious organizations – most of which would not have been affected by any government policy in the past – have more occasions to run up against state policies on land use, health care, discrimination, etc.

Religiosity

As Lyman Stone has convincingly demonstrated, “religiosity in America is declining.” Since 1960, attendance at religious services “has fallen from 50 percent to about 35 percent, while the share claimed as members by any religious body has fallen from over 75 percent to about 62 percent. Finally, the share of Americans who self-identify or report being affiliated with any religion has fallen from over 95 percent to about 75 percent.”

As the share of adherents has fallen, the support for religious freedom claims can be expected to decline as well. In the past a citizen might feel empathy towards a persecuted member of another faith, thinking, “That could be me.” Many still would, of course, but an increasing number would view the faith claims of that other person with suspicion and sometimes with contempt. Influential elites are likely to hear claims for religious tolerance as special pleading – a right to discriminate or to put others at risk. This was the way a Protestant majority once viewed the establishment of parochial schools and how most Americans saw the refusal to salute the flag.

These three converging developments have created an unprecedented climate for churches, religious organizations and individual believers. As opportunities for conflict increase, the ability to rely on legal rules for protection has decreased, and increased skepticism of the value of religious faith means that vulnerable faiths are less likely than ever before to get a sympathetic hearing from their fellow citizens.

This is the terrain on which current conflicts are being worked out. It is challenging, but it also creates an opportunity for a renewed commitment to the aspiration of religious freedom, if we are willing to work towards it.

This commitment would include greater cultural tolerance for people of faith and religions. It would also include a return to a robust understanding of what the First Amendment requires. The aspiration of the Framers of that amendment was religious toleration, but a religious toleration that was not dependent on the popularity of a practice. They wanted to ensure that the ability of individuals and churches to act on their beliefs would not be subject to majority approval.

Developing that commitment will require a high degree of appreciation for the role religion plays, not only in the experience of adherents but in society itself – an appreciation of what we all gain when others are free to act on their sincerely held beliefs.

“We have abundant reason to rejoice, that in this land the light of truth and reason have triumphed over the power of bigotry and superstition, and that every person may here worship God according to the dictates of his own heart. In this enlightened age and in this land of equal liberty, it is our boast, that a man’s religious tenets will not forfeit the protection of the laws, nor deprive him of the right of attaining and holding the highest offices that are known in the United States.” – George Washington, January 17, 1793

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