The Corner

State Legislators Uniting to Protect Religious Freedom

The protection of our cherished religious liberties has been a hot topic lately — and for good reason. American religious freedom is under increasing pressure as a result of government officials and policies that have breached historical bounds in attempts to impose unprecedented restrictions on the free exercise of religion.

Today, a bipartisan group of over 100 legislators in nine states is announcing the nation’s first state legislative caucuses focused solely on religious freedom. These working groups of legislative leaders are being established in Arizona, Colorado, Florida, Idaho, Kansas, Missouri, New Hampshire, Oklahoma, and Tennessee. This is the first installment in a national plan to form state religious-freedom caucuses in all 50 states by the end of 2013.

The legislators founding these caucuses intend to make sure that the conversation on religious freedom in their states is not dominated by those intemperate voices inhabiting the polar extremes. Instead, they believe the most powerful voice regarding laws affecting religious liberty should always belong to the vast majority of Americans who understand that this foundational freedom should never be manipulated for political gain or made subservient to policy preferences.#more#

For over two centuries, our robust religious freedoms have provided the indispensable framework for the peacefulness and vitality of our nation of millions of members of widely differing religions. Whether it is Protestant, Catholic, Jewish, Latter-day Saint, Muslim, Hindu, Sikh, Buddhist, or another community of faith, the overwhelming majority of Americans say they identify with a particular religion. This is a major reason why unwavering preservation of our historically broad religious liberties should always be treated as a unifying force in America—never as a mere political issue.

Unfortunately, as divisive activist-driven litigation against religious expression and freedom became commonplace over the past five to six decades, state legislatures nationwide increasingly handed over their duty to protect religious liberty to the courts. As a result, the legal doctrine on religious freedom has become a tatteredpatchwork reflecting the whims of individual — and sometimes ideological — judges. Inconsistent and often conflicting court decisions have left most Americans unsure of the scope of this most fundamental freedom.  

The great uncertainty that this patchwork of judge-made law has injected into the American doctrine of religious freedom has opened a door to increased hostility to religion and has induced some government officials to experiment upon our religious liberties. For example, last year in Hosanna-Taborv. EEOC, the U.S. Department of Justice and Equal Employment Opportunity Commission attacked the previously unquestioned rights of religious organizations to hire and fire their own leaders. Fortunately, all nine justices of the U.S. Supreme Court roundly rejected the government’s position, but it is deeply concerning that administration officials litigating the case thought that the two Religion Clauses of the First Amendment were irrelevant. 

This hostility was also seen at the state level when governors in Illinois and Washington issued regulations mandating that pharmacists in their two states dispense controversial abortifacient drugs — even if doing so would violate the pharmacists’ religious beliefs. Indeed, in September the independent and widely respected Pew Forum on Religion and Public Life released a study showing that government restrictions and social hostilities against religion increased significantly in 2009–2010, the most recent years studied.

Legislative leadership is required to halt and reverse this divergence from our historical norms.  The goal is to guide overreaching government officials back to a healthy acceptance of the rights of Americans of all religions to believe and peacefully practice their convictions as they see fit — free from unjust government coercion.

Often state legislatures over the years have failed to appreciate their responsibility to fashion clear laws protecting the rights of the people from overreaching government officials and policies. Some seem to have wrongly assumed that religious liberty would always be respected by judges and by executive-branch officials. Today’s announcement signals a change to that lax attitude.  

Like the First Amendment, our state constitutions guarantee protection against government establishing a state religion while concurrently and vigorously guaranteeing the essential place that free exercise of religion has in our nation—both within the walls of houses of worship and in the public square itself.

This is not an issue that can (or rightfully should) be left solely to the dictates of either the judicial or executive branches. That is why over 100 lawmakers of both major parties in nine states across the country are announcing today the nation’s first state religious freedom caucuses.  They are taking the lead to ensure that Americans’ God-given and constitutional rights to religious freedom are restored now and solidified for generations to come. 

— Brian W. Walsh is executive director of the American Religious Freedom Program at the Ethics and Public Policy Center in Washington, D.C.

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