Today’s Challenges to Religious Liberty in Historical Perspective

By Bradley, Gerard, V | Texas Review of Law & Politics, Spring 2017 | Go to article overview

Today’s Challenges to Religious Liberty in Historical Perspective


Bradley, Gerard, V, Texas Review of Law & Politics


INTRODUCTION

Many people say that religious liberty in our country is now under attack more than ever before.1 That's true as far as it goes, and in what follows I shall supply some reasons why I think so. But the chief aim of this Article is not to try to establish that reli-gious liberty is in its most parlous state ever, as if some common threat-level metric is higher today than it was, say, a hundred or fifty years ago. As a matter of fact, Mormons and Native Ameri-cans in the late-nineteenth century faced government actions more hostile to their religious beliefs and practices than any-thing confronting believers today.2 United States' "Indian" poli-cy then included a concerted effort to wean Native Americans altogether of their inherited religious beliefs.3 Uncle Sam literal-ly scattered the Church of Jesus Christ of Latter-Day Saints (LDS) to secure the Mormons' renunciation of plural marriage.4 Even America's Catholics, especially when the bulk of them were re-cent immigrants or children thereof, have been perennial targets of discrimination on religious grounds, chiefly because a large percentage of their fellow Americans held that being a Catholic was simply incompatible with being an American.5 Government policies from the founding all the way down to Supreme Court Establishment Clause cases in the 1970s reflected this mistaken belief. 6

By some obvious metrics, these campaigns were worse than what is happening now.

Nevertheless, by some other obvious common metrics what's happening now is worse than ever. We shall explore the Native American, LDS, and Catholic episodes in Parts I through III of this Article partly to indicate the comparative magnitude of the present challenge. The larger reason for doing so is, however, to put what is happening today in boldest relief, to show in Parts IV and V how today's challenges to religious liberty are different in kind more than in degree than these three earlier episodes, and from any other era or episode in American history.

For what happened before happened to a particular church or sect. In the Mormon and Native American cases, each targeted group was insular, geographically isolated, and with no footprint in the wider society.7 What's happening now is happening on Main Street and to mainstream believers. And it is happening to religion. Traditional Christians who morally object to abortion and same-sex marriage are most commonly put to the test today.8 But they are casualties in an even wider conflict. Americans today are engaged, wittingly for the most part, in an unprecedented contest over the meaning and value of religious liberty, not for this or that discrete group in specified measure, but for all be-lievers. Parts IV and V tell this sobering story.

What's happening to religious liberty today is a cause as well as an effect of epochal changes in our society's understanding of the nature and sociopolitical importance of religion. These changes will be felt most keenly by believers who adhere to the common morality of Christians and Jews and to the moral truths recorded in the Old Testament, such as the Ten Command-ments. However, these changes will not be felt by them exclusive-ly, or even mainly, and the wider effects will not be limited to re-ligious liberty. Because Americans have always had a robustly religious culture which has been an essential, and important, part of our political life, the path upon which we trod will even-tually, as Parts VI and VII explain, transform our whole political culture.

I. ABRIDGEMENT OF RELIGIOUS LIBERTY THEN

In which specific ways were the depredations against Ameri-ca's Native American populations and LDS more egregious than the challenges today?

Today's incursions upon religious liberty are sometimes coer-cive. But they are not violent. Kim Davis (the Kentucky county clerk who conscientiously refused to sign marriage licenses for same-sex couples9) will be followed by other believers into custo-dy. …

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