What Is the Future of Religious Freedom in the United States? 222 Years Ago, the First Amendment to the Constitution Declared: Congress Shall Make No Law Respecting an Establishment of Religion, or Prohibiting the Free Exercise Thereof

By Kandil, Caitlin Yoshiko | Moment, March-April 2013 | Go to article overview

What Is the Future of Religious Freedom in the United States? 222 Years Ago, the First Amendment to the Constitution Declared: Congress Shall Make No Law Respecting an Establishment of Religion, or Prohibiting the Free Exercise Thereof


Kandil, Caitlin Yoshiko, Moment


Under the First Amendment of the Constitution, religious freedom in the United States has two components: the Establishment Clause, which prevents the government from advocating a particular religion; and the Free Exercise Clause, which ensures freedom of belief and worship. Despite these robust protections, perhaps the most of any country in the world, religious freedom in the United States has always been fraught with controversy: What happens when religious practice conflicts with secular law? How much religion should be allowed in the public sphere? What if religious liberty leads to discrimination against minority groups? In this way, religious freedom has always been a balancing act, and the constant recalibration of this balance has largely played out in the courts. Two important Supreme Court cases in recent decades, Sherbert v. Verner (1963) and Employment Division v. Smith (1990), highlight this ongoing battle. Although the first case strengthened religious liberty by listing a set of criteria the government had to meet before limiting free exercise, the second rolled these criteria back, making it easier for the government to restrict religious practice when it conflicts with the law. The Employment Division decision--delivered by Justice Antonin Scalia--still stands, and shapes much of today's discussion about religious liberty from birth control to gay rights. This symposium--which includes 11 thinkers who address issues facing Jews, Protestants, Catholics, Muslims and non-believers--explores the contested issues looming on our horizon and examines where religious freedom in the United States is heading in the near future.

--Caitlin Yoshiko Kandil

DOUGLAS LAYCOCK

I'm deeply worried about the future of religious freedom. We're the most religiously diverse country in the world, and we have a tradition of religious liberty that's very strong. But the deep disagreement and conflict over sexual morality is putting that tradition under enormous pressure. People in the pro-choice movement, the gay rights movement and the women's movement are increasingly coming to see conservative religious bodies as their enemy. The fight over same-sex marriage and now over contraception is aggravating that. They see religion messing with their fundamental liberties, so they feel, "Why should I respect the liberty of the people who are causing problems for me?" I worry that half or more of the population is being turned away from religious liberty because of these issues.

With respect to contraception, most people don't even understand the religious objection--it doesn't make sense to most Americans. At the same time, I think the churches are overplaying their hands. They're not just insisting on liberty for themselves; they're insisting on regulating the sex lives of other people. And people on the other side not only want liberty for themselves; they want religious people to be required to participate, to provide contraception even in Catholic institutions. Both sides are intolerant, and neither side is interested in a "live and let live" attitude. There are solutions: We can let same-sex couples marry, protect the constitutional right to abortion, let everybody have access to contraception and not require churches or religious believers who conscientiously object to have to provide these things. It's not that hard. But both sides seem to want the total win in which all of the cost of the conflict is put on the other side.

Douglas Laycock is a professor of law and of religious studies at the University, of Virginia. He recently published Religious Liberty, Volume I: Overviews and History, and Volume II: The Free Exercise Clause.

CHARLES C. HAYNES

The United States is now the most religiously diverse nation in the world and, among developed nations, one of the most religious. At the same time, a growing number of Americans--perhaps as many as one-fifth, according to some polls--say they have no religious affiliation.

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