Rescuing Religious Liberty

Our Founding Fathers envisioned a nation in which diverse religious liberties would be freely celebrated and openly expressed. To them, freedom of religion was an "unalienable right."

Yet today, the all-too-common reaction when people of faith attempt to be heard is that their perspectives are not relevant in the public square.

And unfortunately, those who want to purge religious viewpoints from public discourse have a growing arsenal of weapons. Indeed, in 1990 there was a quantum shift in the judiciary against religious liberties.

The Problem:

With the stroke of a pen that year, the U.S. Supreme Court demoted religious liberties from the esteemed position it had enjoyed since the founding of our nation. Our religious freedoms were effectively removed from the pantheon of liberties that theretofore had always been recognized as fundamental and unalienable.

And since that moment when the wall protecting our religious freedoms was breached, the onslaught against those liberties has accelerated at an alarming rate. A few recent examples:


Employers' & Employees'

Churches & Charities

The fact that all of this is being forced upon an unwilling populace is evident in the occasional backlash from an exasperated population. Remember the free-for-all that erupted after the 9th Circuit Court of Appeals took the phrase "under God" out of the Pledge of Allegiance? A similar outcry occurred when the Democrat Party removed all references to God from the party platform. Just eight years earlier, that platform had included seven references to God. Likewise, the blocks-long lineup to buy chicken sandwiches around the country in reaction to threats by several cities to exclude Chick-fil-A restaurants from opening or expanding due to the traditional marriage views of the company's CEO.

So what unleashed this recent tsunami of judicial activism against people of faith? The assault came from two quarters.

First, the U.S. Supreme Court began flexing its muscle in the 1950's and 1960's under the 1st and 14th amendments' restrictions on government "establishment" of religion. Under this principle, Bible reading, prayer, and other organized religious activities were methodically purged from our public schools and government endeavors. In due course, any individual who more recently wished to express religious sentiments in a public school or government setting was in danger of being chastised, expelled, or fired.

The second arm of this assault began in earnest in 1990. In that year, the traditional deference given to the free exercise of religion under the 1st amendment was suddenly and dramatically curtailed.

Since our nation's founding, the "free exercise of religion" was recognized as a fundamental constitutional right. It was historically protected on an equal footing with other constitutional rights such as free speech, equal protection, and a free press.

That recognition meant that a governmental edict that prohibited or discouraged a religious practice was only permitted if it was both (1) done in the pursuit of a compelling state purpose and was (2) done in the least intrusive or restrictive manner necessary to accomplish that purpose. But if the purpose being pursued was not compelling, or if that purpose could be accomplished in a less intrusive manner, then the action was held unconstitutional.

Then, in Employment Division v. Smith, a 1990 case that involved the religious use of a hallucinogenic drug by two Native Americans, the U.S. Supreme Court dramatically departed from these principles. Instead of following longstanding precedence and concluding that the government has a compelling interest of the highest order in preventing dangers that arise from drug usage, the court took an entirely new tack. By a vote of 5 to 4, the court announced that it would no longer treat the free exercise of religion on an equal footing with other constitutional principles.

The Court specifically declared that hybrid or blended religious liberties - those simultaneously involving religious liberty along with other constitutional liberties - would continue to be upheld as always. In other words, religious speech, religious publications, and religious assemblies would still be protected in the same high historical fashion.

But religious liberty by itself would no longer be protected to the same degree. A statute or governmental action that impacts religious activity will henceforth be presumptively valid in the absence of some additional constitutional violation under the new rules. Government intrusion or interference with religious practices that doesn't also jeopardize speech, the press, or church assemblies is now generally permitted.

This decision in the Smith case removed a restraint that had traditionally protected individuals in their religious practices. It opened a floodgate of restrictions that no longer had to clear the difficult two-pronged test that had protected our religious liberties for two centuries. The result has been the tidal wave of restrictions that have relegated religious liberties to the second class position where it languishes today.

The Solution:

The good news in all this is that it is possible for individual states to restore the same religious principles which the Supreme Court has abandoned.

In Idaho, this can be accomplished by a succinct addition to our state's constitution. An amendment could easily provide that any restriction on religiously-motivated actions or words would be required to meet the test historically used in this country. This would permit religious practices to once again prevail against government intrusion unless the state's actions are necessary to further a state interest of the highest order and such interests are pursued in the least restrictive manner possible.

Such an amendment to the Idaho Constitution would effectively reinstate the liberties established by our country's Founding Fathers. It would restore the balance under which this nation operated and flourished for two hundred years.

It would also protect the religious liberties of Idaho's diverse population. No longer would our religious liberties be threatened by a tyrannical minority bent on imposing its wishes through court decrees. Elevating these principles to our state constitution will make it clear that we hold these principles in the highest regard and that we want them protected for generations to come.

The time is past for mere handwringing over the loss of our precious liberties. Instead, when the opportunity comes - as it will in the near future - it is imperative that the voice of each person of faith be heard in support of this effort. Let your legislators know what you expect of them. Let your friends and family -- as well as those in your places of worship -- know that they are needed in this battle.

And don't be daunted by those who might oppose this effort. They will paint at twisted portrait of what is at stake. They will claim this change will usher in an era of child abuse, spouse abuse, a time of special rights for prisoners, and the like.

But what is at stake is simply the restoration of those liberties that made our country great. Contrary to such fear-mongering, all such misbehavior will continue to be illegal, even under this new amendment. Adherence to these principles for 200 years did not have that effect. Neither will the restoration of those principles.

If we are not active in this battle when it comes, we should not be surprised that our freedoms continue to be eroded. Together, we can restore this precious liberty to the shining and prominent position that it once enjoyed.

Barry Peters is an attorney in private practice with offices in Eagle, Idaho, and is one of the legal advisors for both ICHE and CHOIS. His law practice focuses on the areas of wills, trusts, probate, and real estate contracts.

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