Freedom of Worship?

"Freedom of Worship" by Norman Rockwell

And when they had brought them, they set them before the council. And the high priest questioned them, saying, “We strictly charged you not to teach in this name, yet here you have filled Jerusalem with your teaching, and you intend to bring this man’s blood upon us.” But Peter and the apostles answered, “We must obey God rather than men. The God of our fathers raised Jesus, whom you killed by hanging him on a tree. God exalted him at his right hand as Leader and Savior, to give repentance to Israel and forgiveness of sins. And we are witnesses to these things, and so is the Holy Spirit, whom God has given to those who obey him.” When they heard this, they were enraged and wanted to kill them. But a Pharisee in the council named Gamaliel, a teacher of the law held in honor by all the people, stood up and gave orders to put the men outside for a little while. And he said to them, “Men of Israel, take care what you are about to do with these men. For before these days Theudas rose up, claiming to be somebody, and a number of men, about four hundred, joined him. He was killed, and all who followed him were dispersed and came to nothing. After him Judas the Galilean rose up in the days of the census and drew away some of the people after him. He too perished, and all who followed him were scattered. So in the present case I tell you, keep away from these men and let them alone, for if this plan or this undertaking is of man, it will fail; but if it is of God, you will not be able to overthrow them. You might even be found opposing God!” So they took his advice, and when they had called in the apostles, they beat them and charged them not to speak in the name of Jesus, and let them go. Then they left the presence of the council, rejoicing that they were counted worthy to suffer dishonor for the name. And every day, in the temple and from house to house, they did not cease teaching and preaching that the Christ is Jesus (Acts 5:27-42).

The Daily Signal reported on April 30, 2015 that a Republican senator was up in arms over how the Obama Administration was misrepresenting American’s freedom of religion. Senator James Lankford (R-OK) was upset with the Department of Homeland Security’s decision to use the phrase “freedom of worship” instead of “freedom of religion” on the test immigrants take to become naturalized US citizens (Harkness 2015).

Senator Lankford isn’t alone in his concern over what he perceives to be the redefining of the First Amendment. Christian leaders are becoming increasingly concerned that those who oppose them are attempting to redefine the First Amendment’s Free Exercise Clause from an individual protection to an institutional one. Statements such as those from Democratic National Committee Chairwoman Debbie Wasserman-Schultz are cited as evidence.

In an interview with CBN News, Wasserman-Schultz said that “legitimate religious institutions” shouldn’t be forced to conduct same-sex marriages, but religious business owners should not be legally protected under the Free Exercise Clause for “turn[ing] people away based on who they are” (Howerton 2015).

“You shouldn’t be able to turn people away based on who they are. It’s important that no matter who you are, who you love, what the color of your skin is, what your national origin is, we’re a nation of laws. Yes, the marriage equality decision is settled. Love is love and now everyone in America enjoys the protection of the United States Constitution when it comes to who they choose to marry legally,” Wasserman Schultz said. “That doesn’t mean that churches and religious institutions have to conduct same sex marriages and it doesn’t mean that religious institutions aren’t able to practice their own values…But, in this country, we do not allow people to discriminate and that’s [sic] I think is where the important distinction needs to be drawn” (Howerton 2015).

In the past opponents of religion on the Left have attacked the institutional public exercise of religion, such as the erecting of nativity scenes placed on public property, by citing the “separation of church and state.” Now it appears that the tactics have changed. Some of the more smug enemies of religion, Christianity in particular, would cite Bible passages such as Matthew 6:6, “But when you pray, go into your room and shut the door and pray to your Father who is in secret. And your father who sees in secret will reward you,” as did one Facebook friend, attempting to provoke an argument. Far from proving their point, however, this passage from the Sermon on the Mount Jesus was making the point to his disciples that, if the motivation for worshiping God is to be recognized as pious by men, then there is no benefit. Jesus calls us to hide our good works, not to flaunt them for recognition. Quite to the contrary, Christians are called to be faithful witnesses to the world and to “obey God rather than men” (Acts 5:29). But, I digress…

What Wasserman-Schultz seems to be saying is, sure, the Lutheran Church – Missouri Synod doesn’t have to perform same-sex marriages. They are a legitimate religious institution protected by the First Amendment. But you, the individual parishioner, you may not live out your faith in the public square. Consequently, if your conscience will not allow you to be the wedding cake baker for a same-sex wedding celebration, too bad. Evidentially the individual is only free to exercise their religion within the walls of their house of worship. 

The US Constitution does not limit the free exercise of religion to the inside of the church building for an hour on Sunday morning. Christians, along with their fellow citizens of other faiths, have the God-given and constitutionally protected right to live out their faith in the world, conducting themselves in public as their consciences dictate, subject only to infringement under special circumstances or where the State can demonstrate a compelling interest.

Much is made of the fact that there is a “separation of church and state” built into the U.S. Constitution. This is not exactly true, at least not in the way left-wing activists believe it to be. The phrase “separation of church and state” appears nowhere in the U.S. Constitution, and this wall is certainly not one which was intended to bar individuals who practice a religious faith from entering the public square. The term is an offshoot of the phrase, "wall of separation between church and state," written by Thomas Jefferson in a now famous letter to the Danbury Baptist Association in 1802. The original text of President Jefferson’s letter reads, in part: 

"... I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State” (Jefferson 1802). 

The Danbury Baptist Association wrote to Jefferson of their concerns regarding the lack of explicit protection of religious liberty in their own state constitution, and against a government establishment of religion (The Heritage Foundation n.d.). As a religious minority in Connecticut, the Danbury Baptists were concerned that a religious majority might establish a state religion at the cost of the liberties of religious minorities. Jefferson assured them that the U.S. Constitution would in no way permit such an establishment, and that “…religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions…” (Jefferson 1802). This separation of church and state, as understood by Thomas Jefferson at least, had nothing whatsoever to do with public expressions of religion. To Jefferson and the Danbury Baptists, separation of church and state had everything to do with the establishment of a national/state religious body, and avoiding the national/state oppression of religious minorities.

It wasn’t until 1947 that the Supreme Court, albeit nebulously, defined just how the “wall of separation” was to be built. As a result of Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947)[1], state or local government can not: 1) set up a church, 2) pass laws that aid one religion, all religions, or favor one religion over another, 3) force a person to attend or stay away from church, or believe in any religion, 4) punish a person for holding or professing religious beliefs, 5) levy a tax, in any amount, to support any religious activities or institutions, 6) openly or secretly participate in the affairs of any religious organization, or vice-versa (Everson v. Board of Education 2015). 

Another test established by the Supreme Court, known as The Lemon Test, is based on the case Lemon v. Kurtzman 403 U.S. 602 (1971)[2]. The test consists of three parts: 1) whether the law or conduct has a secular purpose, 2) whether the law or conduct has as its primary or principle effect advancing or inhibiting religion, and 3) whether it fosters an excessive entanglement of government with religion (Lemon v. Kurtzman 2015). 

Additionally, the Court has ruled that public displays of religious symbols, such as the Christian nativity scene or the Jewish menorah, do not constitute a breach of the Establishment Clause when they are all displayed together, and along with secular holiday symbols, in celebration of the national holiday of Christmas[3]. A good example of this is the Christkindlemarkt (Christ child market) which is set up in Daley Plaza every year in Chicago. The clearly Christian event, complete with nativity scene, is set up each year without incident. Alongside the nativity scene each year is a large Jewish menorah. Any citizen or group who wishes to exercise their freedom of religious expression in this public space may do so, and the event is not in breach of the Establishment Clause. Should any religious or secular group be prohibited by government from exercising that freedom of expression at the Christkindlemarkt, it would then violate the Establishment Clause. 

To say that there is no place in American society for public displays of religion or religious symbols, strictly because they are by nature religious, is simply not justified by the U.S. Constitution, or by case law. Justice Antonin Scalia, in his dissenting opinion to the McCreary County, Kentucky, ET. Al. Petitioners v. American Civil Liberties Union of Kentucky ET. Al. case, observed that the same week Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate. Justice Scalia goes on to remind his fellow justices that, “The same Congress also reenacted the Northwest Territory Ordinance of 1787, 1 Stat. 50, Article II of which provided: ‘Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged’” (Scalia 2005). 

And, it should not be overlooked that the First Amendment itself accords religion – and no other manner of belief – special constitutional protection. I am sure that our friends on the Left would not agree that these early actions of Congress are equally valid today, since they generally consider the U.S. Constitution to be a “living, breathing document”, meaning that its interpretation changes as American society changes, and that moral values simply evolve along with society and culture and are therefore not absolute. 

The views of American citizens, however, have not changed significantly where this issue of public expression of religion is concerned. Justice Scalia rightly points out that our Presidents continue to conclude their oath of office with the words, “So help me God.” The Congress opens each session with a prayer; those prayers are lead by official congressional chaplains. The Supreme Court opens its sessions with the prayer “God save the United States and this Honorable Court”. We have the phrase “In God We Trust” on our currency. When we pledge allegiance to the flag of the United States we corporately acknowledge that we are one nation, under God. Justice Scalia finishes his thought thusly:

“As one of our Supreme Court opinions rightly observed, ‘We are a religious people whose institutions presuppose a Supreme Being.’ Zorach v. Clauson, 343 U.S. 306, 313 (1952), repeated with approval in Lynch v. Donnelly, 465 U.S. 668, 675 (1984); Marsh, 463 U.S., at 792; Abington Township, supra, at 213” (Scalia 2005).

That is all well and good for the church as an institution, but what about individual people? Traditionally, without a “compelling interest,” the free exercise of religion by individuals could not be infringed, and the Supreme Court has ruled accordingly in the past.

In, Sherbert v. Verner (1963) the Court held that states must have a "compelling interest" to refuse to accommodate religiously motivated conduct (United States Supreme Court 1963). In this case Adele Sherbert was denied unemployment benefits by South Carolina because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist faith. The Court ruled that the denial of Sherbert’s unemployment benefits was an unconstitutional burden on the free exercise of her religion in a 7-2 decision. This decision resulted in what came to be known as the Sherbert Test. 

The Sherbert Test basically says that, if the government has burdened an individual’s free exercise of religion, it must have done so by confronting that person with a choice which pressures him/her to forego a religious practice by imposing a penalty or withholding a benefit etc. The State, however, may be justified in their infringement of the person’s free exercise if they can show 1) a compelling state interest that justifies the infringement, and 2) no other form of regulation can avoid the infringement and still achieve the State’s ends. The Sherbert Test has been limited and modified in recent years but is still applicable in federal statutes and certain other circumstances (Sherbert v. Verner 2015). 

Since the founding of the country, the Court has understood the free exercise of religion – like the other rights protected in the Bill of Rights – to apply to individuals. People, as individuals, do not simply have a “freedom of worship” in the cloister of their religious buildings or homes. Individuals have the right under the US Constitution to bring their religious beliefs with them into the public square as they live out their everyday lives. As Christians, however, we must be prepared to live according to our consciences even if our government ceases to protect that right, and be joyful to be counted worthy to suffer in the name of Jesus.

Works Cited

"Everson v. Board of Education." Wikipedia. January 30, 2015. https://en.wikipedia.org/wiki/Everson_v._Board_of_Education (accessed August 14, 2015).

Harkness, Kelsey. "US Immigration Exam Replaces 'Freedom of Religion' With 'Freedom of Worship'."

The Daily Signal. April 30, 2015. http://dailysignal.com/2015/04/30/republican-senator-questions-why-immigration-exam-calls-freedom-of-religion-freedom-of-worship/ (accessed August 14, 2015).

Howerton, Jason. "DNC Chair Says This 'Important Distinction' Needs to Be Drawn When It Comes to Religious Freedom." The Blaze. July 8, 2015. http://www.theblaze.com/stories/2015/07/08/dnc-chair-says-this-important-distinction-needs-to-be-drawn-when-it-comes-to-religious-freedom/ (accessed August 14, 2015).

Jefferson, Thomas. "Jefferson's Letter to the Danbury Baptists." The Heritage Foundation. January 1, 1802. http://www.heritage.org/initiatives/first-principles/primary-sources/jefferson-s-letter-to-the-danbury-baptists (accessed August 14, 2015).

"Lemon v. Kurtzman." Wikipedia. July 31, 2015. http://www.oyez.org/cases/1970-1979/1970/1970_89 (accessed August 14, 2015).

Scalia, Justice Antonin. "MCCREARY COUNTY V. AMERICAN CIVIL LIBERTIESUNION OF KY. (03-1693) 545 U.S. 844 (2005) ." Cornell University Law School. June 27, 2005. https://www.law.cornell.edu/supct/html/03-1693.ZD.html (accessed August 14, 2015).

"Sherbert v. Verner." Wikipedia. August 6, 2015. https://en.wikipedia.org/wiki/Sherbert_v._Verner (accessed August 14, 2015).

Supreme Court of the United States. "Everson v. Board of Education." Oyez. http://www.oyez.org/cases/1940-1949/1946/1946_52/ (accessed August 14, 2015).

The Heritage Foundation. "Jefferson's Letter to the Danbury Baptists." The Heritage Foundation. http://www.heritage.org/initiatives/first-principles/primary-sources/jefferson-s-letter-to-the-danbury-baptists (accessed August 2015, 2015).

The Oyez Project at IIT Chicago-Kent College of Law. "Lynch v. Donnelly." Oyez. August 9, 2015. http://www.oyez.org/cases/1980-1989/1983/1983_82_1256#chicago (accessed August 14, 2015).

United States Supreme Court. "Sherbert v. Werner." FindLaw. June 17, 1963. http://caselaw.findlaw.com/us-supreme-court/374/398.html (accessed August 14, 2015).

End Notes

[1] Supreme Court of the United States. “Everson v. Board of Education.” Oyez. http://www.oyez.org/cases/1940-1949/1946/1946_52/ (accessed August 14, 2015).

[2] Supreme Court of the United States. “Lemon v. Kurtzman.” Oyez. http://www.oyez.org/cases/1970-1979/1970/1970_89

[3] “The city of Pawtucket, Rhode Island, annually erected a Christmas display located in the city's shopping district. The display included such objects as a Santa Claus house, a Christmas tree, a banner reading ‘Seasons Greetings,’ and a nativity scene. The creche had been included in the display for over 40 years. Daniel Donnelly objected to the display and took action against Dennis Lynch, the Mayor of Pawtucket…In a 5-to-4 decision, the Court held that notwithstanding the religious significance of the creche, the city had not violated the Establishment Clause. The Court found that the display, viewed in the context of the holiday season, was not a purposeful or surreptitious effort to advocate a particular religious message. The Court found that the display merely depicted the historical origins of the Holiday and had ‘legitimate secular purposes.’ The Court held that the symbols posed no danger of establishing a state church and that it was ‘far too late in the day to impose a crabbed reading of the [Establishment] Clause on the country’" (The Oyez Project at IIT Chicago-Kent College of Law 2015).