Civil Liberties: Religious Liberty

1. Civil Liberties: Religious Liberty

2. Overview • Religious liberty is among the most important civil liberties. • US is among the most religious democracies, but we have a secular form of government. • Even with the protections of the 1st Amendment, religion and politics come into conflict all the time and must be sorted out.

3. Freedom of Religion Basic Controversies • Is the US a “Judeo Christian Nation?” • John Winthrop, Puritan, “covenant,” city on a hill • Thomas Jefferson, deist, “high wall of separation” • Conflicts with other rights and laws • Women’s reproductive rights • Same sex marriage • Public education • The extent of religious liberty • Evangelicals want to extend beyond freedom of worship to freedom of conscience in their daily lives.

4. Origins • Bitter conflicts between protestants and Catholics in 16th-17th c. England • Puritans sought religious liberty but did not always grant it here to Anne Hutchison, Roger Williams, and Quakers • John Locke “Letter on Toleration” promoted religious toleration of other faiths • 18th c. Enlightenment rejected religion as the foundation for government

5. Where in Constitution • Article 6 states: No religious test to hold office • British monarch cannot be Catholic; at one time members of Parliament had to be Church of England • B. Obama Muslim controversy—would not have disqualified him

6. 1st Amendment • Religious liberty is our first civil liberty • “No establishment” clause—no state sanctioned religion • “Free exercise” clause—government cannot prohibit

7. Questions • May a public school begin the day with a nondenominational prayer? • Does “under God” make the Pledge of Allegiance a prayer in public schools? • Is the use of peyote for religious purposes protected? • May religious schools receive government assistance?

8. Answers • No. Engel v. Vitale 1961 • Uncertain but probably not. Elk Grove Unified School District v. Newdow 2004 ruled that John Newdow didn’t have standing. • No. Oregon v. Smith 1989 • Yes, but with restrictions. Lemon v. Kurtzman 1982. For example nonreligious texts and school buses.

9. Religious Freedom Restoration Act of 1993 • Enforcement of free exercise clause • Demands that all government actions that affect religious freedom are subject to “strict scrutiny” standard—highest standard of judicial review

10. Question • Can you deny someone else their rights if doing so violates your religious beliefs? • http://fox4kc.com/2014/06/30/supreme-courts-ruling-causes-deeply-divided-controversy/

11. Hobby Lobby v. Burwell 2014 • ACA grants exemptions to church-based employers • Private employer argued that mandated coverage for certain kinds of birth control violated his religious beliefs. • Court agreed, under the Religious Freedom Restoration Act of 1993 • Third party then provides coverage

12. Little Sisters of the Poor v. Azar 2016 • ACA required them to cover birth control • Work around of Hobby Lobby case not good enough • Religious liberty under RFRA • Also protected by 2017 executive order

13. Obergefell v. Hodges 2015 • Same sex marriage case • Licensing marriages is a reserve power • Case rested on the Equal Protection Clause of 14th Amendment • All states must provide marriage licenses to same sex couples

14. What about same sex wedding cakes? • Can religious baker refuse to make one? • Masterpiece Cakeshop v. CO Civil Rights Commission 2018—yes

15. Review • Conflicts over religious freedom have been among the bitterest. • Amendment 1 guarantees no state-sanctioned religion and protects freedom to worship. • But issues of government funding, government health care mandates, and the meaning of religious freedom lead to controversies in Court.