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Advocates for religious freedom in America are in many ways part of the second wave of rights activism in the courts. The first wave started in the 19...

Religious Freedom - Part 2

August 31, 2017

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Religious Freedom - Part 2

August 31, 2017

Advocates for religious freedom in America are in many ways part of the second wave of rights activism in the courts. The first wave started in the 1950's and 60's with litigation over the rights of minorities, women and criminal suspects, most notably. Cherished freedoms and a measure of equality were won as a result of many of the court decisions and legislative enactments during that era. In the past 25 years, other types of rights groups have strategically applied lessons learned in the past about how to select test cases for litigation as a way to steer the law. That has been the case with respect to gay and transgender rights on the one hand, and is now the case with respect to religious freedoms on the other. Religious freedom-–the right to worship freely and live a full religious life uncramped by the state, is fundamental to our Constitution and indeed the American way of life. It's full expression remains a goal of many Americans, regardless of their religion.


Promisingly, many of the religious freedom cases currently pending in the federal judiciary now seek to change the way religious liberty is viewed in America. (Many of those cases are listed in the endnotes to our previous post on Religious Freedom.) Traditionally, the approach has been to equate free exercise of religion with the freedom to worship as one pleased. But a fuller, more complete perspective recognizes that true religious freedom has to do with how a person organizes and conducts all aspects of one's life. ("Whatever happens, conduct yourselves in a manner worthy of the gospel of Christ." Phil. 1:27) ("Commit to the Lord whatever you do, and he will establish your plans." Prov. 16:3) That includes worship, but it also includes business, speech, social conduct, political expression, activities, subscriptions, associations, affiliations, and more. The current effort is to obtain recognition that most religions have complete codes governing not only worship, but all of life, and to remain true to one's religion requires more than gathering with other like-minded people to worship.  This is certainly true for Christians, who are called to surrender, to be transformed and to obey Gods commands in their daily lives. Daily life includes home, family, workplace, marketplace, community and school. This sometimes places a Christian at odds with an otherwise legitimate, perhaps even well-meaning, law or other societal norm, but a Christian has the assurance of protection. ("But the Lord is faithful, and he will strengthen you and protect you from the evil one." 2 Thess. 3:3)


This is the fundamental issue in the Masterpiece Cake Shop case discussed in our earlier post. There, the justices will decide whether Colorado's attempts to enforce an otherwise valid anti-discrimination law to compel a baker to make a cake for a same-sex wedding in contravention of his religious beliefs violates his free speech and free-exercise or religion rights under the First Amendment. Much has been written about the case and our prior post on Religious Freedom contains many useful links.


This past year's Supreme Court decision in Trinity Lutheran v. Comer is an example of the Court's current thinking about these issues. In that case, several national rights groups represented Trinity Lutheran, a church in Missouri, in challenging the state's denial of a grant application. After litigation between the state and the church, the justices ruled Missouri could not turn down the church's application for a public grant to resurface it's playgrounds merely because of its status as a religious institution. While that sounds fairly innocuous on its face, Missouri had denied the application by citing its state constitution, which includes a Blaine Amendment – a provision 38 states adopted in the late 19th century to prohibit public funding of religious institutions. (Blaine laws were largely an effort to mollify anti-Catholic sentiment then widespread throughout largely Protestant populations.) Blaine laws have long been used to treat religious organizations differently, often to their relative detriment, merely because they are religious organizations. As Trinity Lutheran pointed out, Blaine is not only outdated and wrong, it is standing in the way of real freedom to practice religion unfettered by government entanglement. As part of a larger strategy, Trinity Lutheran is a good example of a targeted effort by advocates of religious liberty to take on the Blaine laws still resident in state constitutions and statutes throughout the country to pave the way for other steps toward religious liberty. While Blaine laws are far from dead, and other impediments to religious freedom exist in many areas of life, the day after the Court decided Trinity Lutheran, it sent two other Blaine amendment cases back to state courts for reconsideration.


Matal v. Tam, a free speech case decided by the U.S Supreme Court this past June, likewise reflects the Court's current thinking. In 2011, Simon Tam asked the U.S. Patent and Trademark Office to register the name of his band: The Slants. Tam and the band acknowledged that the term “slants” is often regarded as derogatory to people with Asian ancestors, but they had hoped to use it as their name to “reclaim” the term and erase its negative connotations. However, the PTO rejected Tam’s request, relying on a provision of federal trademark law barring the PTO from registering trademarks that may disparage other people, whether they are alive or dead. A federal appeals court agreed with Tam that this provision, known as the “disparagement clause,” violates the First Amendment. In a very significant free-speech decision, the Supreme Court upheld that ruling, holding that the disparagement clause “offends a bedrock First Amendment principle:  Speech may not be banned on the ground that it expresses ideas that offend.” While it should never be the goal of Christians to offend, there are times when the expression of one's Christian faith may offend non-Christians. Likewise, some expressions by non-Christians may offend Christians. Tam means both forms of expression are protected by the First Amendment. These cases teach that religious liberty and free speech are intertwined. Proper application of free speech protections are an important tool in securing religious freedom for all.


Unsurprisingly, many of the lawyers and groups supporting Masterpiece in its pending case helped Trinity Lutheran and Tam in last year's cases.  The Becket Fund for Religious Liberty and the Alliance Defending Freedom are two of the most active legal groups involved in religious liberty cases and their websites (see links slow) have information and analyses on these and other important cases. At the end of the day, the lessons of the past live on.
















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