What should the scales of justice balance? Historical aspects of the religious liberty debate.

• Author: Merriman, Scott A.
• Position: Symposium on the Meaning of Religious Liberty in the Anglo-American Legal Tradition

Though liberty and equality are but a small part of The Declaration of Independence, these are probably its most oft repeated points. However, because the Founding Generation did not say much about these two ideals in the Constitution, the legal system has always been faced with the challenge of how to deal with them. (2)

One view of American history is that the Constitution's authors found value in the ideals in the Declaration of Independence. American history, in this view, is in the process of answering two questions: how much should the Declaration of Independence be actualized in the Constitution, and to whom does the Declaration of Independence pertain? One might be tempted, if not aware, to hold that the Declaration of Independence is, and always has been, true for all. However, the existence of slavery for this nation's first ninety-two years should quash that notion quickly. (3)

Many of the questions today pertain to issues of equality, both inside the issue of religion and outside. This article focuses on the relationship between constitutional religious exemptions and equality. However, three noteworthy issues outside of the First Amendment relating to the topic are the Black Lives Matter campaign, the Syrian refugee crisis, and the role of gender within the 2016 presidential campaign. The Black Lives Matter campaign argues for equal treatment and, specifically, that blacks should not be treated differently (at a minimum) than whites. These ideas have been around before the Black Lives Matter campaign, but without such a focus. (4) The Syrian refugee crisis asks whether Americans should treat current refugees who want to come to America the same way that those Americans would have wanted their own ancestors to be treated. This second issue is of particular interest because there are also direct calls by some politicians to wholly revamp American immigration policy based on religion. (5)

Finally, one might be tempted to believe that gender bias plays no role in the current presidential race. But if that were true, then why, in a field of as many as fifteen Republican candidates, and twelve Democratic candidates (at one time), were there only two women? While, as of December 2015, Hillary Clinton is the current front-runner in many Democratic primary polls, some of the opposition to her is based on ideas of gender. (6) Thus, questions of whether or not equal treatment is being given to all remain prominent today. Other secular controversies and topics touch more in the area of liberty. (7)

Philosophies of government that are becoming more popular also show the growth of interest in these topics. Libertarianism is growing in interest, at least in terms of the Republican presidential nomination, and libertarians value liberty. Long time libertarian Ron Paul drew very little national interest until the 2008 election. In 2012, he finished fifth in several primaries, which is still far from even close to victory in any primary. His son, Rand Paul, however, won election as a Republican Senator for Kentucky in 2011 and has run in the 2016 presidential election. The Pauls have brought issues relating to libertarianism to the forefront of the nation for the first time. One key value of libertarianism is restricted government, meaning that liberty is again a key issue in the current system. (8)

However, as previously noted, this review's primary focus is on the Constitutional religious exemption, which used to be called the Free Exercise Clause. (9) But first, a few words, on the issue of the other half of the First Amendment's religion clauses--those dealing with the establishment of religion--are in order. Discussing the other half of the interaction of the First Amendment and religion will show how divisive of an issue it is, and what lessons history can teach one about how much these controversies are settled. Those controversies include the teaching of evolution in the classroom, and religious symbols on public land.

One question in the area of the Establishment Clause pertains to the teaching of evolution in public schools. For instance, is it allowable for states to mandate the teaching of things other than evolution, or in addition to evolution, as part of a science curriculum? The courts have answered no, but those rulings have not put the question to rest. (10)

For example, efforts to promote evolution alternatives in the classroom have tried to paint Secular Humanism as a religion and have argued that the State is essentially picking between which religions to promote. By this logic, Creationism could be taught in public schools without violating the First Amendment. (11)

Another dispute in the area of establishment is the presence of Christian symbols on state property. Those controversies include the presence of a forty-three foot cross in a park in San Diego and the use of prayer in a wide variety of contexts. While the cross was ordered to be removed after a long court battle, the issue is still being contested. Additionally, efforts to include prayers have resulted in mixed judicial decisions across the country. (12)

Religion also remains a divisive issue in more subtle ways in many areas, with political candidates maneuvering to appeal to certain religions. In this 2016 presidential election, some candidates have pledged to restrict immigration based on religion, as noted before, and others have argued outright that a Muslim should never be president. To underscore how divisive an issue religion is in politics, the candidate who opposed a Muslim president had to reverse his comments the next day, and actually stated that he never made the statement, although the audio seemed to indicate otherwise. One should also remember that President Obama was frequently accused of being Muslim, and, although no proof was ever produced to support this allegation, the idea had a strong influence upon some Americans. (13) Religion remains a hot topic in American life in spite of some studies indicating that up to a quarter of Americans place themselves in a category that includes atheists, agnostics, and unaffiliated religions, which, if combined, would make it the single largest religious affiliation in the nation. (14) Thus, in spite of somewhat decreasing influence, the topic has not decreased in importance in American political life, and is still frequently litigated.

The degree to which laws can dictate religion is a hotbutton issue. In the 2014 elections, several states passed initiatives prohibiting the use of Muslim, or Sharia, law in America. However, those very same individuals wish to allow Christianity to influence

American laws and legal decisions. For example, the state of Oklahoma banned Sharia law then proceeded to put up monuments of the Ten Commandments on state property, and other states have followed similar paths. (15)

This would seem to contradict, or at the very least, contradict most people's understanding of the First Amendment that the State should not favor any one religion. While some might counter that America was founded on Christian principles, meaning the First Amendment simply calls for the legal system not to favor one Christian religion over another, this argument actually complicates the issue, as it places the government in the position of deciding which religions are Christian. One only needs to harken back to the 2012 presidential campaign to remember that many expressed questions about the Republican nominee, Mitt Romney, and whether or not his Mormon faith made him a Christian. (16)

All of these controversies show us that questions of religion are still very important and relevant. Of special interest to this review is the question of how the government should behave when one group of individuals' exercise of religious liberty and equality impacts the rights of others. This is for several reasons, not the least of which is that religious liberty and equality are part of the founding myth of America according to the general public. While the myth is riddled with holes, many Americans still assume that the Pilgrims came to America for religious freedom, and assume that was the reason why America was founded.

Of more interest to lawyers is the First Amendment, which guarantees religious freedom in addition to its guarantee of not having an establishment of religion. Within this concept, religious freedom is an idea of liberty. But equality also plays a role, as one person's religious freedom cannot be used to restrict another's. Moreover, the idea of equality is in the Fourteenth Amendment, which requires equal treatment of all people by the government. This also connects to the Declaration of Independence's iconic stand that all people are created equal. For all of these reasons, liberty and equality both need to be considered when looking at the First Amendment's guarantee of religious freedom; however we must keep in mind the First Amendment's ban on an establishment of religion. In this vein, an examination of how history has treated the issues is in order. Additionally, we need to consider how one person's liberty and rights are balanced against another's, both in terms of religious liberty versus religious liberty, as well as in terms of religious liberty versus other types of liberty. (17)

"Is life so dear or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!" (18) This quotation is well known and often is cited in support of liberty. Sometimes it is even cited in support of religious liberty. However, this quotation only considers liberty from government, not liberty from one's fellow man. Patrick Henry's analysis ignores what government is to do when one person takes another person's freedom. Slavery is, after all, exactly that--one person taking another person's liberty. Perhaps we are moving beyond the issue that...