Freedom of religion is not protected by the Constitution

We’re rerunning this post in light of the many ministers in the U.S. who are disobeying the quarantines in place to stop the spread of the COVID-19 virus by holding religious services of more than 10 people–in some cases, many more.

One example may stand for many: in Los Angeles, Rodney Howard-Browne held a service in his Protestant Christian mega-church and, when arrested for showing “reckless disregard for human life… complained of ‘religious bigotry.’ The church maintains that the right to assemble in worship is a fundamental freedom that cannot be abridged even in an emergency, and cites early American religious dissidents, including Baptists and Quakers, as examples of the religious persecution that the nation’s founders would have found intolerable.”

This argument is so convoluted it takes time to disassemble. First, Howard-Browne and the many other Christian and Jewish religious leaders who have flouted the quarantine orders in the U.S. are actually applying the First Amendment correctly: as we explain in detail below, it protects the physical assembling of people to publicly worship in a building. This is rare. Most Americans believe that the FA protects religious belief (it does not, as we explain below).

But after that, the church’s argument goes off the rails. The right to physically assemble for worship can indeed be temporarily suspended to save lives during a pandemic. Forbidding public worship does not prevent people from practicing their religion. They may have to do it remotely, via Zoom, or privately at home, but they are still allowed to be Christian, Jewish, Muslim, or whatever religious identity they possess. No one is telling them that their religion itself is not allowed–just their religious assembly. Temporarily.

Referencing the Baptists and Quakers is meant to tie their 17th-century persecution to the megachurches’ situation, but the megachurches are not being persecuted, so it doesn’t hold.

Later in the article, this statement appears:

Legal experts say that while religious groups generally have wide latitude to worship under the 1st Amendment and state-by-state religious freedom laws, rules shutting down worship are legally sound if they apply across-the-board to all types of group meetings.

This is true. The FA protects gathering to worship, but temporary suspension of all religious assembly to help curb a pandemic is the kind of good sense the Founders practiced and would appreciate. It is a general ban, not one directed only at Christians, and to challenge it goes against biblical teaching, by Jesus and Paul in the New Testament, that Christians should obey the rules their governments create. Christians always forget that teaching when it doesn’t suit them, while remembering it with a vengeance when it does (when demanding that immigration laws be enforced, for instance).

Fighting a temporary ban that’s meant to save lives should not make one “proud to be persecuted for the faith like my savior,” as minister Tony Spell in Baton Rouge claimed. They’re not being persecuted for their faith. No one is preventing them from believing in Jesus. They are simply being asked to suspend in-person worship for three months. A strong faith should be able to withstand such a minor setback.

Here’s the original post:

 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

We all recognize this as the text of the First Amendment of the Constitution. Most of us put it into our own words as “the First Amendment protects freedom of religion.” But it does not. It protects freedom of worship, which is very different.

What the First Amendment does regarding religion is: first, it forbids our federal legislature from making any laws creating an official state religion; second, it forbids our federal legislature from preventing people from worshipping as they see fit. That’s what “free exercise” means—how you worship. Whether you go to a church, synagogue, mosque, or have a prayer room in your home, you are protected. If you wear a head covering like a yarmulke or turban as a form of worship, you are protected.

The First Amendment is all about physical forms of religious worship. It comes from a time when people would burn Catholic churches or refuse to let Jewish Americans build synagogues. It stops this, and stops schools from forbidding students to wear religious clothing.

It does not protect religion itself, or as we usually put it, religious belief. It does not protect anyone’s right to believe certain things. If one’s religion prohibits homosexuality or birth control, that is a belief, not a form of worship. Belief is not protected because belief is so amorphous. One could claim any crazy notion as a religious belief and demand that it be protected. We could say that our religion says women shouldn’t ride public transportation, or men should not be allowed to use public showers, or cats can’t be kept as pets, and we would have to be accommodated.

The Founders were wise enough not to get into religious belief. They just made a safe space for public and private physical worship.

We were glad to hear someone get this in a radio interview last week. The article starts badly, with the author saying

The question under current debate is what it means to “exercise” one’s religion.

If a football coach is not allowed to lead his team in a public prayer, or a high school valedictorian is not given permission to read a Bible passage for her graduation speech, or the owner of a private chapel is told he cannot refuse to accommodate a same-sex wedding, they might claim their religious freedom has been infringed.

The first two examples are clearly not worship. They are expressions of religious belief. Only the latter is worship, concerning what happens in a house of worship. The article continues:

One of the thorniest cases involves Catholic Charities, whose agencies long have provided adoption and foster care services to children in need, including orphans. Under Catholic doctrine, the sacrament of marriage is defined as the union of a man and a woman, and Catholic adoption agencies therefore have declined to place children with same-sex couples.

Again, doctrine is belief, not worship. Marriage being between a man and woman only is a belief, not a form of worship. Doctrine cannot be protected by our federal government. The article talks many times about “freedom of religion” clashing with “freedom from discrimination”, and that’s why: when you enforce belief, you enforce discrimination because belief can reach out beyond a religion to impact others while worship can’t. Put it this way: there’s no form of Catholic worship that impacts non-Catholics because non-Catholics aren’t in Catholic churches trying to worship. But there are forms of Catholic belief that impact non-Catholics, because non-Catholics will be impacted by them without ever setting foot in a church. Gay non-Catholics will be discriminated against by anti-gay Catholics if being anti-gay (a belief) is enshrined as a form of worship, and thus given protection by the First Amendment.

“Exercising” one’s religion means worship, plain and simple, and exclusively. It’s a literal word: you exercise (move)  yourself physically to do something to worship God.

So Charles Haynes, director of the Religious Freedom Center at the Newseum Institute in Washington, is completely wrong to say “We may not like the claim of conscience, but you know, we don’t judge claims of conscience on whether we like the content of the claim. We are trying to protect the right of people to do what they feel they must do according to their God. That is a very high value.”

Americans may have a “right” to do “what they feel they must do according to their God”, but only when it comes to forms of worship. One political charter, like the Constitution, could not possibly protect all “values” and all “feelings” about what is right, because they will naturally conflict. And the Constitution does not deal in feelings, but in political rights.

Now here’s where the article gets good:

…Bishop Michael Curry, leader of the Episcopal Church in the United States, said he has witnessed the persecution of Christians in other parts of the world and doesn’t see anything comparable in the United States.

“I’m not worried about my religious freedom,” Curry said. “I get up and go to church on Sunday morning, ain’t nobody stopping me. My freedom to worship is protected in this country, and that’s not going to get taken away. I have been in places where that’s been infringed. That’s not what we’re talking about.”

Curry’s reference only to “freedom to worship,” however, missed the point, according to some religious freedom advocates. They say they want the freedom to exercise their faith every day of the week, wherever they are — even if it means occasionally challenging the principle of absolute equality for all.

“We can’t use equality to just wipe out one of the [First Amendment] rights,” Carlson-Thies says, “or say you can have the right, as long as you just exercise it in church, but not out in life.”

Bishop Curry gets it! He realizes that “worship”—getting up and going to church and not being stopped—is what is protected. “My freedom to worship is protected in this country”; that is correct. We were really gratified to hear him say this.

Then to have his opponents say that having “only” freedom of worship isn’t good enough is very telling, because they come right out and say they want freedom of belief—if only for themselves. They want to “exercise their faith every day of the week”? They have that right in the Constitution. What they really want is to “challenge the principle of absolute equality for all”; that is, they only want freedom of belief for themselves. Anyone whose beliefs clash with theirs should be shut down.

To say as Carlson-Thies does, that “equality wipes out rights” would be laughable if it weren’t so dire an example of double-speak destroying our democracy. Equality is “rights”. They are one thing. Our guaranteed equal rights give us… well, equality. How can guaranteeing everyone’s equal rights destroy equality?

His final statement tells us the truth: he wants to get rid of freedom of worship (“in church”) and put in freedom of belief (“in life”). But only for himself, and his beliefs. All others that clash with his would have to be discriminated against.

We need more Currys in this country, who understand that no democratic government committed to equality of opportunity can protect freedom of belief because that is the opposite of democracy. It is anarchy. Beliefs will always clash. The federal government cannot uphold any one set of beliefs over another. If equality feels like oppression to some people, we need to help them resolve that struggle. That’s the American way.