Transcript Religious Freedom in the American Constitutional Heritage

September 7, 2011
Emergence as a
Constitutional Principle
Forged in the
Crucible of Persecution
Colonial Heroes Protecting Rights of
Conscience:
• Roger Williams
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Discovery: “Soul Freedom” is for everyone
• William Penn
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It’s also good for business
• Baptist Dissenters
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Jailed for having their own church weddings
• Quaker Mary Dyer
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Hanged in Boston Common for Proselytizing,
1660
Religious Freedom
in the American Constitution
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Bill of Rights: “First Freedom”
Innovative break from 13 centuries
of state-enforced religion
Propelled thriving civil society
Shaped culture of inter-religious
amity
Model for international law and
norms
Timeless Ontological Insights
Who are we?
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Innate quest for meaning
Experience of transcendent obligations
“Conscience has rights because it has
duties.”
Denial of conscience felt as profound
violation of dignity
Natural condition of faith is pluralism.
• Quran: “So vie one with another in Virtue.”
Timeless Political Insights
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Repressing religion ignites strife
• “God’s Century” - Toft, Philpott, Shah
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Unless checked, state authorities WILL
trample religious rights
Protecting religious liberty fosters citizen
loyalty and thriving peaceful societies
Madison’s First Amendment Vision
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Rights of conscience and religion never
surrendered
• “…duty towards the creator is precedent, both
in order of time and in degree of obligation, to
the claims of civil society.” Thus “no man’s
right is abridged by the Institution of Civil
Society…”
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Measure of free society
• Extent to which people are not forced to
choose between transcendent obligations and
citizenship privileges
First Amendment Heritage
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Imperfect
• Did not originally apply to the states
• Inconsistent interpretation by courts
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But Powerful Model
• Has given leverage to religious minorities
• Has ignited popular constitutionalism
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Congressional and state legislative battles enhance
protections when Court retreats
Needs reaffirmation/renewal in every age
Global Impact
American Model
as a Global Influence
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Experiment can work: Religion and
Liberty can march together
• “In France I had almost always seen the spirit of religion
and the spirit of freedom pursuing courses diametrically
opposed to each other; but in America I found that they
were intimately united, and that they reigned in
common over the same country,”
-de Tocqueville
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Churches can thrive without state support
Protecting religious rights beneficial
Inspiring to scholars and global activists
American Experience
as a Global Influence
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Catholic Church Transformation
• Catholic immigrants anchored in pluralist
religious society
• Initial Church condemnation of “Americanism”
• John Courtney Murray’s invitation to Vatican II
• Dignitatis Humanae:
Declaration on
Religious Freedom
• Propelled wave of
global democratization
American Experience
as a Global Influence, con’t
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U.S. Muslim Immigrants
• Thriving community
• Civically engaged
• Shunning militancy
• Developing pluralist Islamic
theologies
• Championing rights abroad
Zainab Al-Suwaij, AIC
“I’m Proud to be a Muslim
from Muskogee”
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Nashala Hearn, age 12, suspended for
wearing hijab in Benjamin Franklin School,
Muskogee, OK in 2003
Represented by evangelical legal advocacy
groups and backed by Bush Administration
Justice Department
School changes policy, everybody wins
American Leadership
as a Global Influence
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Eleanor Roosevelt
and Universal
Declaration of
Human Rights,1948
Everyone has the right to freedom of thought, conscience,
and religion. This right includes freedom to change his
religion or belief, and freedom, either alone or in community
with others and in public or private, to manifest his religion or
belief in teaching, practice, worship, and observance.”
American Leadership Grows
as a Global Influence
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Helsinki Accords leverage space for
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International Religious Freedom Act,
1998
religious dissidents behind Iron Curtain,
1970s
• Makes promotion of religious Freedom a “Basic Aim” of
American foreign policy
American Leadership Grows, con’t
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Booming Advocacy
Infrastructure
• Exiles, religious
dissidents, human
rights organizations,
think tanks,
international lawyers,
and scholars
Religious Liberty Advocate Cole
Durham, Central European University,
Budapest, Hungary
U.S. Role in Historic Convergence
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Unprecedented global documentary record State Department Annual Reports
Innovative research techniques measure
“restrictions on religion” for every country on
earth - Pew Forum on Religion and Public Life
Sophisticated quantitative methods show
contribution of religious freedom to democracy,
civil liberties, inter-religious peace, economic
development, women’s status, and regional
stability - Grim and Finke
Empirical validation of timeless ideal
Troubles in the Cradle
of Religious Liberty
Challenges to Religious Exercise
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Eroding Conscience Protections
• Long tradition in American law and politics
• Looming threat to health care providers
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Reduced autonomy of religious institutions
• Adoption agencies shuttered in Massachusetts
and DC
• Religious foster care threatened in Illinois
• Hiring rights challenged in Michigan
• Faith affirmation for student law club struck
down in California
Challenges to Religious Exercise,
con’t
Trumped by other
values
• Christian Science
and the Case of
Brutalist
architecture
• Maximizing tax
revenues in Leon
Texas
The Reason: Amnesia of Elites
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If religion treated as trivial, then regulatory
state will intrude into Madison’s zone of liberty
Some statist conservatives dismiss conscience
claims and religious accommodations – Justice
Scalia
Some aggressive liberals deploy equality laws
against believers and religious bodies
Some hostile secularists invoke
misunderstandings of the Establishment Clause
to restrict religious exercise
Global Threat and Irony
Global Threat
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Undermines the power of this
constitutional principle, which has
been a global agent of expanding
liberty and democratization
• Harsh Indonesia Blasphemy law sold to avoid
“American secularization”
• Accused of hypocrisy when we challenge
infringements on religious rights abroad
Global Irony in the Making
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International legal norms, inspired and led
by the U.S., starting to be invoked to
challenge these policy trends
Idealism of global struggles may shame
U.S. policymakers
• Imagine the headline: “Religious Restriction
Score Increases in U.S.”
Global Irony in the Making, con’t
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Global campaigns for religious autonomy
and conscience rights will inspire domestic
activists
Historical precedent:
Jehovah’s Witnesses Gobitas
children were buoyed by
Roosevelt’s Four Freedoms
speech.
Hope for Preserving An Essential
Constitutional Principle
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Global struggles and popular
constitutionalism can reclaim what the
courts and the regulatory state have
forgotten
Example of American Sikhs
• Adherents of a faith born in 16th Century
Punjab
• Intensely committed to religious freedom
• Inspired by the American promise: “Here you
can be who you are”
A Portrait of the American
Constitutional Heritage in
Religious Freedom
Signing ceremony ending Oregon’s 1923 KKK-backed law
against religious attire in public schools, April 1, 2010.