Is religious freedom at the tipping point?

• Author: Franck, Matthew J.
• Position: Religion

THERE IS A growing awareness among Americans that religious freedom in our country has come under sustained pressures. In the public square where freedom of religion meets public policy, it becomes clearer all the time that there is a high price to be paid for being true to one's conscience. This is no tale of Chicken Little--although a chain of chicken sandwich restaurants based in Atlanta is part of the story. Here are a few examples:

In our universities, those citadels of toleration, we find that toleration can be limited sharply. At the Hastings College of Law in San Francisco, Calif., the student chapter of the Christian Legal Society was denied any status on the campus because it would not abandon its requirement that members commit themselves to traditional Christian norms regarding sexual morality. The Supreme Court, in a 5-4 ruling in 2010, held that the student group's rights were not violated by a "take all comers" policy. Following this lead, Vanderbilt University has rewritten its student organizations policy and effectively chased every traditionally Christian student group off campus, denying them regular access to campus facilities. At the University of Illinois, an adjunct professor of religion, hired to teach a course on Catholicism, was let go because a student complained about his patient explanation of the Catholic Church's natural law teachings on human sexuality. (He later was restored to his teaching duties, but at the expense of the Newman Center, not on the state payroll.)

In our states and localities, we see other kinds of pressures. Authorities in Washington state and Ninois have attempted to force pharmacists, against their conscience, to dispense "morning after" pills when other pharmacists short distances away make these abortifacients available. New York City has barred church congregations--and them alone--from using public school buildings outside school hours. In New Mexico, a Christian wedding photographer was fined for violation of a state "human rights act" because she refused to take the business of a same-sex couple who claimed to want her services at their civil union ceremony. In Massachusetts, Illinois, San Francisco, and the District of Columbia, the adoption and fostering agencies of Catholic Charities have been shuttered because they will not place children with same-sex couples, as the local authorities demand.

In our courts, we see the First Amendment turned on its head or simply disregarded, in active hostility to the place of religion in our public life. The U.S. Seventh Circuit Court recently ruled that a Wisconsin public high school could not rent space for its annual graduation exercises in a local church, lest it be seen as "endorsing" religion and "coercing" its students to view Christianity in a positive light.

In 2010, Judge Vaughn Walker of the U.S. District Court in San Francisco ruled that Proposition 8, preserving marriage in the California constitution as the union of one man and one woman, was unconstitutional. He held that the affinity between traditional religion and the moral case against same-sex marriage was reason enough to strike down the popular referendum, and went so far as to say that religious doctrines holding homosexual acts to be sinful are in themselves a form of "harm" to gays and lesbians. In this he followed the lead of the Iowa Supreme Court, which held in 2009 that the state's law restricting marriage to a man and a woman was an expression of a religious viewpoint, and for that reason unconstitutional.

Finally, we have listened to Obama Administration officials, including the President and the Secretary of State, speak of "freedom of worship" as though it marked the full extent of freedom of religion. The President famously spoke at the University of Notre Dame's commencement in 2009 but, in that speech, he treated religious opinions that disagree with his views on abortion and other social issues as fundamentally irrational, and thus to be relegated to the private sphere and ruled out of order in our public debates. Having succeeded in persuading Congress to repeal the "Don't Ask, Don't Tell" policy for the military, the Administration strongly has been opposed to legislation that would protect the conscience rights of chaplains and other servicemen and -women who continue to hold and express the view, on religious grounds, that sexual relations morally are permitted only in a marriage between a man and a woman.

In the recent term of the Supreme Court, the Administration's lawyers took the position that there should be no "ministerial exception" on religious-freedom grounds for employers, such as religious schools, from Federal anti-discrimination laws. Church schools and other religious institutions, they argued, only have as much protection as nonreligious groups do on "freedom of association" grounds--as though the religion clause of the...