How Free Is Religion in America?

Tearing down St. Patrick's Cathedral to widen 5th Avenue probably won't happen in our lifetimes, but the sacred ground of less mainstream religions is not as safely protected, says Edward McGlynn Gaffney. And this should be of high concern to all Americans.

"We have to be attuned to all forms of religious expression," says Gaffney, "and when the government--whether city, state, or federal--seems to pick out the most vulnerable of our religions, the state is making incursions on everyone else's religious well-being."

Gaffney is dean of Valparaiso University School of Law in Indiana and an author of numerous legal essays on religious freedom and First Amendment rights.

Why should Catholics worry about freedom of religion?

People are confused over the proper role of religion in society right now. As Americans, we suffer from historical ignorance. Because of this confusion and lack of knowledge, we have become blind to the effects of many of the laws that restrict practices of so-called fringe religions, which will eventually, if they don't already, affect Catholics and other mainstream religions.

Let me give you an example. If the city of New York decided that it needed to widen 5th Avenue and that it would be necessary to tear down St. Patrick's Cathedral, Catholics worldwide would be infuriated and rebel. But the sad truth is that we don't rise up in arms when it concerns someone else's religion and sacred institutions, such as the Native Americans who are being trampled on, and that's a point we really need to seriously address.

There isn't one single religious group in America that has not suffered persecution at the hands of government at some point in our various histories. We have to be attuned to all forms of religious expression, and when the government--whether city, state, or federal--seems to pick out the most vulnerable of our religions, the state is making incursions on everyone else's religious well-being as well. If the courts can make a rule with respect to someone who is politically vulnerable, it may filter down to even mainstream religions losing out in the legislative process altogether.

It's hard to believe that would ever happen.

Most of the cases that have been presented to the Supreme Court are coming up in two guises that threaten the practice of religion. One is extensive regulation by government that didn't exist 50 to 70 years ago--and certainly wasn't there at the founding of the Republic--such as zoning or access laws. Zoning laws are now widely used to keep religion out of new major developments. This is the case in Southern California--and I'm not talking about villages with ten homes, which don't want to set aside space for a church, but 100,000 homes in which the zoning board says to the developer, "You can have all the land for private development. And we're not going to set aside one square foot for a church or synagogue." And handicap-access laws have been invoked to restrict religious-based dwellings. Recently in New York a shelter for the homeless operated by Catholic nuns on the second floor of a walkup building was closed citing access laws because the facility didn't have an elevator. Does it make sense to throw the homeless back on the streets? Are they any safer there than on the second floor?

And in other cases the decisions reached reveal little or no respect for sincere religious convictions at odds with the sensibilities or preferences of the majority. In the landmark case Oregon Employment Division v. Smith the court decided against Native Americans and for the state of Oregon to ban the use of hallucinogenic peyote, an outlawed drug, in Native American church ceremonies. In Smith, the government decided which religious practices would be accommodated in society and which should be illegal. This decision marks a complete shift in the court's attitude toward the free exercise of religion--people are being punished for their religious worship.

Religious rights are also threatened when Vietnamese people, who hold a deep reverence for the body, are told that their concerns about autopsies don't count. Does the state always need to perform an autopsy if the family is against it? Or if an Orthodox Jew says, "I have to bury by sundown," one would think there would be some sensitivity, especially in such a moment of sorrow.

But how do such rulings affect Catholics?

Imagine that Catholicism was a so-called fringe religion and some state, because of its age of consumption laws, decides that it isn't okay for Catholics under 21 years of age to partake in the drinking of wine during the Eucharist. Under the precedent set in the Smith case, the government could prohibit our sacramental worship in the sense of limiting the participants. (Now I'm sure that a clever Catholic lawyer could …

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Publication information: Article title: How Free Is Religion in America?. Contributors: Not available. Magazine title: U.S. Catholic. Volume: 59. Issue: 4 Publication date: April 1994. Page number: 6+. © 2008 Claretian Publications. COPYRIGHT 1994 Gale Group.

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