The Founders’ protection of religious freedom in the First Amendment was in keeping with their recognition of the supreme importance of the individual, who was created by God and subject to God’s natural law. The early twentieth-century Progressives largely rejected this view, as they concluded that man must not be limited by “arbitrary” rules such as those imposed by religion. Modern progressives have seized upon this viewpoint, especially in their attitudes toward sex. The State will teach children about sex, and it will do so by disconnecting it from its most important component—the spiritual. It does not matter that such teachings are, by nature, within the rights of parents.
Progressives have carried these attitudes to federal, state, and local governments, and the result has been an unprecedented assault on religious values and religious practice. Governmental authorities embrace the view that access to contraception (and abortion) is a fundamental right vital to sexual freedom. Similarly, homosexual conduct must be completely normalized and accepted. The law must prohibit even private preference for heterosexual norms, and if religion teaches such a preference, religion must yield. These attitudes must be taught to children in the public schools in order to affirm, in the state’s view, the full self-realization of every person—and as shown below, parents who object to the assault on their right to bring up their children according to their religious values have discovered that the courts will not protect their rights in this regard.
Churches and other people of faith have relied on the judicial process to protect their First Amendment freedoms. But litigation takes an enormous toll in time and resources. Even worse, as many disappointed litigants have discovered, courts grant extraordinary leeway to government and government schools in advancing so-called neutral, generally applicable laws. The courts will follow the lead of the people in defining the parameters of religious liberty; if the people abdicate, the courts will not intercede to protect that liberty.
The problem lies in a 1990 Supreme Court case, Employment Division v. Smith, in which the Court held that the First Amendment does not relieve a citizen of the obligation to comply with a neutral law of general applicability, simply because the law “proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Applying Smith, lower courts have rejected almost all challenges to laws and government activities that are based on claims of interference with free exercise of religion. Many of these cases arise in the public-school setting. Courts have found that public-school administrators do not interfere with parents’ First Amendment rights by:
- Teaching kindergartners that same-sex relationships are equivalent to heterosexual ones (Parker v. Hurley);
- Administering surveys to children as young as seven, asking about sexual subjects, personal feelings and experiences, and family relationships (CN v. Ridgewood Board of Education, Fields v. Palmdale School District);
- Presenting a vulgar, sexually explicit program to teenagers as part of AIDS-prevention efforts (Brown v. Hot, Sexy & Safer Productions).
Although older Supreme Court authority acknowledged the fundamental right of parents to control the upbringing and education of their children (Meyer v. Nebraska, Pierce v. Society of Sisters, Wisconsin v. Yoder), the post-Smith courts have severely limited those holdings to their unique facts. Now, courts are more likely to hold that parents relinquish, as a practical matter, their First Amendment right to control their children’s education when they choose public schools over private schools or homeschooling. As one court said, parents “have no constitutional right . . . to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise, when and as the school determines that it is appropriate to do so.”
The denigration of religious freedom extends to areas of purely private, commercial conduct. Governments increasingly apply nondiscrimination statutes to force private individuals and businesses to participate in conduct that violates their religious beliefs. So far, defenses based on the First Amendment have been unavailing. Some examples:
- The New Mexico Human Rights Commission found that a small photography business unlawfully discriminated against a same-sex couple by declining, because of the owners’ religious beliefs, to photograph the couple’s commitment ceremony (Willock v. Elane Photography).
- The California Supreme Court ruled that doctors violated the state nondiscrimination statute by refusing, on religious grounds, to artificially inseminate a woman who was in a lesbian relationship (North Coast Women’s Care Medical Group v. San Diego County Superior Court).
- A federal court in California found that administrators of an Arizona adoption-facilitation website were subject to California’s statute banning discrimination in public accommodations because they refused to post profiles of same-sex couples as potential parents (Butler v. Adoption Media).
- A New Jersey agency found probable cause to believe that a church violated a public-accommodations statute by declining to rent its pavilion for a same-sex wedding (a different agency, enforcing nondiscrimination on the basis of sexual orientation, revoked the tax exemption the church had enjoyed under a statute promoting the use of private property as green space) (Ocean Grove Camp Meeting Ass’n of United Methodist Church v. Vespa-Papaleo).
- A federal appeals court found that an employer’s denial of insurance coverage to an employee’s same-sex partner constituted illegal sex discrimination (In Re Levenson).
In none of these cases did the religious defendants discriminate against homosexuals just because of their orientation—i.e., they did not refuse to serve them in a restaurant or work on their cars or give them standard medical care. Rather, they declined to participate in an endeavor, such as same-sex marriage or adoption, which was inconsistent with their religious beliefs. But the courts and agencies found that nondiscrimination trumps religious values. The courts will not protect a for-profit business that wants to operate according to biblical principles.
Another arena in which principles of nondiscrimination are elevated over free exercise of religion is the area of public benefits. Across the country, faith-based charities or social-service organizations such as the Salvation Army and the Boy Scouts have been denied government grants or other benefits because of their religiously grounded refusal to yield to the demands of “nondiscrimination” (see, for example, Boy Scouts of America v. Wyman, Catholic Charities of Maine, Inc. v. City of Portland). These demands have included providing insurance benefits to employees’ same-sex partners, admitting homosexuals to the organizations’ leadership ranks, and placing children with same-sex adoptive parents. This latter demand has forced Catholic agencies to cease adoption facilitations in Massachusetts, Illinois, and the District of Columbia rather than violate their religious beliefs about marriage and the family.
Other victims of progressive attitudes toward sexuality and “discrimination” have been public employees who express their religiously based concerns about homosexual conduct. A Los Angeles police officer who was also a Protestant minister was demoted and, he says, denied benefits because of a sermon he delivered that quoted biblical passages about prohibited sexual conduct. An African-American college administrator was fired after she published an op-ed objecting to the equating of race discrimination and sexual-orientation discrimination. And most recently, a New Jersey teacher has come under verbal assault—including from Gov. Chris Christie, who also called for an investigation of her classroom behavior—for posting on her Facebook page her moral objections to a high school’s Lesbian Gay Bisexual Transgender History Month display.
The hostility of courts to such claims of First Amendment violations is unlikely to change, especially in light of the governmental officials’ gravitation toward the European attitude about religion—that it is a divisive influence that must be contained and marginalized. As jurists and legal scholars flirt with the idea of consulting foreign law to evaluate claims under our Constitution, this attitude could take deeper root in American soil.
Progressive to the core, the Obama administration is pursuing even more limitations on religious freedom. One such effort is the proposed mandate of the Department of Health and Human Services (HHS) that health plans cover contraceptives and sterilization, with a religious “exemption” so narrow that (as the U.S. Conference of Catholic Bishops has noted) it would not have covered the ministry of Jesus Christ. Another is the Administration’s argument in a case currently before the Supreme Court that the long-established “ministerial exception” to federal employment-discrimination laws be abandoned. This would mean that rather than allow churches to select and control their own ministers, the federal government could dictate results more in keeping with its secular values. Churches have seen this kind of thing before, and it has not ended well.
While religious freedom has been eroding over the last half-century, the faith community has failed to respond effectively—perhaps out of complacency, or fear of being thought dogmatic and uncompassionate, or concern over losing public funding or tax status. Judicial challenges, though necessary, have not stemmed the assault on religious values. In fact, the Smith decision encourages legislative and executive restrictions of free exercise.
So what is to be done? The faith community must awaken to the attacks, insist that state and federal legislatures proactively defend their rights, and resolve to address any problems as soon as they arise. This means defeating proposed legislation and regulations that threaten religious freedom, or at least amending them to include broad and robust religious exemptions and opt-out provisions. It means standing watch over public schools and securing statutes and policies that allow parents’ rights to prevail over progressive values. And it means putting the question to candidates for political office as to whether they will defend religious liberty.
Governmental and cultural progressives preach the “inevitability” of the triumph of their values over religious values. “Get used to the idea of same-sex marriage [or abortion, or whatever the issue is],” they say, “because it’s inevitable.” And if the faithful insist on clinging to their outdated religious precepts, they will be warned to leave their beliefs inside their churches or suffer penalties imposed by the more enlightened.
But if people of faith take a stand, this result is not inevitable. They must remember the place of religious freedom in America. Religion was not a hobby that people were allowed to pursue in private; it was foundational to the American experiment. Protecting the religious beliefs and religiously informed conduct of our citizens is not optional. Religion must not decrease as government increases. To allow that to happen would be to allow the dismantling of the nation as we know it, and as the Founders envisioned it.
Jane Robbins, Esq., is a Senior Fellow with American Principles in Action. Emmett McGroarty, Esq., is Executive Director of the Preserve Innocence Initiative at the American Principles Project.