The legal structures that support religious freedom are deeply rooted in the American soil. The First Amendment to the United States Constitution reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These words pr
ohibit the government from establishing a national church and make religious freedom the law of the land. Originally, this rule applied only to the federal government. However, it has long been recognized that these protections are binding on state and local governments as well. In addition, all state constitutions today recognize religious freedom as a basic right.
This raises an important question: If religious freedom is so well protected, then what’s the problem? Why do we need a Center for the Study of Religious Freedom? Three points are worth mentioning.
First, principles such as religious freedom are not self-defining. They carry only the meaning we give them. And different generations, facing different circumstances, have come to different understandings of their meaning. For the American colonists, including the Founders, “religion” basically meant Protestant Christianity. Religious freedom was routinely denied to Jews, and Catholics outside of Maryland suffered widespread discrimination. (The story is different in the Spanish colonies of the Southwest.) And no one thought religious freedom should be extended to Native peoples or the many slaves who followed African religious practices. Today, religious traditions from around the world flourish on American soil. Unfortunately, religious discrimination is still a serious problem. But for most Americans, limiting religious freedom to Christians would now be unthinkable.
Second, the problems we face today are of a different order. The Founders were dealing with large-scale structural issues such as whether the state could set aside property for churches and whether public funds could be used to pay ministers’ salaries. Today, the difficult legal questions tend to be more localized: Does a Muslim or Sikh public school teacher (or student) have a right to wear religious head coverings? Can a city regulate religiously prescribed burial practices or prohibit animal sacrifice in religious ceremonies? Can a county build a road on sacred Native lands over tribal objection? The First Amendment lays down broad general principles, but offers no specific guidelines for dealing with these sorts of questions. What feels like religious freedom to some may smack of special privilege to others.
Third, the status of religion in constitutional interpretation has changed. Even though the Founders did not want an established national church, they believed religion played an important role in shaping the moral and civic life of the nation. For over a century, the Supreme Court shared this view. Today, however, the Court applies a neutrality principle in First Amendment cases. This means that the government cannot favor one religion over another, nor can it favor religion over non-religion. Ironically, the result is that religion has become almost irrelevant in cases involving religious freedom. The long-term implications of this development are uncertain, but legal protection for religious freedom has clearly been weakened over the past quarter-century.