Category archives: Religious Liberty

The Religious Freedom of Public Officials Is Under Attack. These Three Aren’t Backing Down.

by Worth Loving

May 15, 2019


The liberty to worship our Creator in the way we think most agreeable to His will is a liberty deemed in other countries incompatible with good government and yet proved by our experience to be its best support.” - Thomas Jefferson

Often called America’s “first freedom,” religious freedom was key to our founding. In fact, it’s no accident that the Founders listed it as the first freedom in the Bill of Rights. It was the reason the Pilgrims made the treacherous journey across the Atlantic—to escape persecution and establish a haven of religious freedom.

In both their public and private lives, the American Founders were not shy about expressing their faith. But today, there is a growing movement to silence the religious expression of public officials, particularly Christians. On Easter Sunday, Arizona Governor Doug Ducey, a born-again Christian, posted John 11:25 on his government social media accounts. The verse reads, “Jesus said to her, ‘I am the resurrection and the life. He who believes in me, though he may die, he shall live.’” Next to the picture was the caption “He is risen! Have a happy and blessed Easter!” The Arizona Republic quickly denounced the post as a violation of the separation of church and state, arguing that Gov. Ducey cannot use his government social media accounts to promote a particular religion. Yet when former President Obama wished everyone a “Happy Ramadan” in 2013 and 2015 from his official White House account, he was never criticized for endorsing Islam.

But Gov. Ducey isn’t the only public official who has faced such unfair scrutiny. NASA Administrator Jim Bridenstine was attacked a few days prior for his comments about a Christian ministry. At a fundraiser for Capitol Ministries, an organization whose sole mission is to reach every public servant with the Gospel of Jesus Christ, Bridenstine gave a few words of praise for the ministry: “I love what Ralph said earlier: We’re not trying to Christianize the US government. We believe in an institutional separation, but we also believe in influence. And that’s a big distinction and an important distinction, and that’s why I love this ministry.” Once again, leftist groups were quick to denounce Bridenstine’s comments, claiming that he used his government position to endorse a religion and violated the Establishment Clause. Yet these groups were strangely silent when former President Obama spoke at fundraisers for Planned Parenthood and even called for God’s blessing on the abortion giant.

The Left won’t even leave the Second Lady alone. In January, Karen Pence was lambasted for teaching at a Christian school that holds to a biblical view of sexuality, meaning that individuals who identify as LGBT are prohibited from working at the school. Apparently, the Left believes any association with Christianity by a public official is tantamount to violating the Establishment Clause.

It seems the Left is intent on silencing Christians who hold public office from expressing their faith. However, they seem to conveniently forget that our nation was founded on freedom of religious expression and that our Founding Fathers actively exercised that freedom while holding public office. In fact, as President, George Washington, John Adams, and Thomas Jefferson all called for national days of prayer. In the states, many governors including Samuel Adams, Elbridge Gerry, John Hancock, Caleb Strong, and Jonathan Trumbull all called for days of prayer and repentance.

Furthermore, the First Amendment is clear that there should be “no law respecting an establishment of religion.” This was directly in reference to the Church of England, which the former British colonies were required to support and attend. Under the new Constitution, Americans were free to support or not support the religion of their choice without any fear of government repercussion—and they don’t forfeit this right just because they serve in public office. It is just silly to claim that the comments and actions of Gov. Ducey, Jim Bridenstine, and the Second Lady “established” a religion.

One doesn’t leave their religion behind when they are elected or appointed to a government office. Yes, public officials are rightfully held to a higher standard. But one’s faith remains just as much a part of him or her as it was before, and we remain free to express it while holding public office.  

Gov. Ducey was quick to respond to his critics and showed no intentions of backing down: “We won’t be removing this post. Ever. Nor will we be removing our posts for Christmas, Hanukkah, Rosh Hashanah, Palm Sunday, Passover, or any other religious holiday. We support the First Amendment and are happy to provide copies of the Constitution to anyone who hasn’t read it.” Responding to The Arizona Republic, Ducey said: “With respect to your ‘experts,’ people don’t lose the right to free speech when they run for office. So, no, we STILL won’t be taking the post down. Not now, not ever.”

Gov. Ducey is right—it might do the Left some good to read the Constitution. They’ll be surprised to find that “separation of church and state,” which they are so quick to espouse, is found nowhere in the Constitution. In fact, it is from a letter that Thomas Jefferson wrote in 1801 to a Baptist church congregation from Danbury, Connecticut—and the letter states just the opposite of what the Left calls for today. A committee from the church had written a letter to President-elect Jefferson, congratulating him on his election and urging him to protect religious freedom. President Jefferson wrote “that religion is a matter which lies solely between man and his God.” Jefferson assured the Danbury Baptists of his commitment to protecting the freedom of religion. He went on to quote the establishment clause and that it had built “a wall of separation between church and state.” Jefferson still made public expressions of faith as president but never came close to establishing a religion as defined by the First Amendment.

The Left’s double standard is unbelievable. While advocating for tolerance, they demand that every public official submit to their agenda. Those that do not face a complete sabotage of their career. Because of this, attacks like the ones on Gov. Ducey, Jim Bridenstine, and Karen Pence will continue to escalate on Christians in public office. Like Gov. Ducey, we must be ready with swift responses. The key to preserving our freedoms—including religious freedom for public officials—lies in exercising them. If we don’t exercise those rights, we will lose them. But as long as we keep fighting, religious liberty will remain alive and well.

China Continues to Oppress the Uyghurs. Our Trade Talks Can Be a Platform for Change.

by Arielle Del Turco

May 13, 2019

Last week, WIRED featured a report on the Chinese government’s extensive use of technology as they continue to oppress religious minorities.

The Chinese government has been involved in a long-running series of crackdowns against their Uyghur population, a Muslim minority group. China currently holds approximately one million Uyghurs in prison camps, where they are subjected to torture and indoctrination by the communist party. China claims these are counter-terrorism measures.

As technology has evolved, it has provided the Chinese government with more tools to harass this community. In recent years, China has been monitoring social media apps—including WeChat, an app which uses the Uyghur language—supposedly to stamp out pornography and information leading to violence and terrorism.

Uyghurs are often arrested for information found on their phones, including downloading apps blocked in China such as WhatsApp, or being caught with religious content on their phones.

China’s Uyghur population is concentrated in the northwestern province of Xinjiang. China has started to use facial recognition technology to track Uyghurs throughout the province as they go about their day. Facial recognition devices are fixed to the entrances of supermarkets, malls, hospitals, and at police checkpoints every few hundred feet.

This report of China’s surveillance crackdown on one of their religious minority communities is a reminder of the serious violations of religious freedom that the Chinese government continues to perpetrate against its own people.

We can be thankful that the U.S. has a leader in President Trump who stands up to China and isn’t timid on the international stage. In addition to the positive impact religious freedom has on economic development, trade discussions can be a platform to raise human rights concerns and advance religious freedom for the benefit of oppressed communities. We can hope and pray that the Trump administration will use the current trade talks with China to do just that.

Asia Bibi Is Finally Free!

by Arielle Del Turco

May 8, 2019

This week marked a long-awaited victory for religious freedom when Asia Bibi, a Christian woman who spent eight years on death row for a blasphemy charge in Pakistan, was finally reunited with her family in Canada.

As confirmed by her lawyer Saif Ul Malook earlier this morning: After being freed from death row last year, the mother of five has arrived in Canada, on the heels of “repeated death threats from religious extremists in Pakistan, following the quashing of her conviction for blasphemy.”

Bibi had been separated from her family and was living in safe houses since her sentence was thrown out last year. (Bibi was convicted in 2010 and sentenced to death after she was accused of insulting the name of the Prophet Mohammed during a dispute with Muslim colleagues.) Her children are already in Canada, and she now joins them there.

It is encouraging to see Bibi finally released to a safe destination after her plight and quest for justice which lasted nearly ten years.

While this development is positive, it serves to highlight the continued threat to religious liberty posed by blasphemy laws.

Just last week, Family Research Council released a report on the status of apostasy, blasphemy, and anti-conversion laws (which threaten the ability to freely live out and choose or change one’s faith) around the world, and the threat they pose to religious freedom.

The most widespread of these types of laws, blasphemy laws prohibit insults to religion. Featured in many Muslim countries, these laws are often abused and used to settle unrelated disputes—this is exactly what Bibi claimed happened to her.

Even as we celebrate this victory, we must continue to monitor the status of these laws which inhibit the freedom of religious expression. 

UK Report: 80 Percent of World’s Persecuted Religious Believers Are Christian

by Arielle Del Turco

May 8, 2019

A new report out of the UK this week highlights the severity of anti-Christian persecution around the world. Commissioned by the Foreign Secretary, the report states that an overwhelming majority (estimated at 80 percent) of the world’s persecuted religious believers are Christians. It found that “evidence shows not only the geographic spread of anti-Christian persecution, but also its increasing severity.”

The report features incidences of violent and social persecution committed against Christians by state and non-state actors. The trends presented are troubling.

In some African countries, such as in Mauritania, Islamic constitutions explicitly deny Christians their basic right to publicly express their religion. In South Asia, the growth of militant nationalism has been the main cause of Christian persecution. Furthermore, anti-conversion laws in South Asia explicitly prohibit people from converting to another religion, usually to protect the majority status of Hindu or Buddhist populations.

In East and Central Asia, authoritarian governments routinely discriminate against and intimidate Christians. Oppression experienced by Christians in several Asian countries is due to the influence Communist and nationalist ideologies have on their governments.

Even in Latin America, a largely Christian region, Christians have been “specifically targeted” for persecution from illegal organizations and paramilitary groups.

Yet, even in the face of these concerning developments, we have reasons to be hopeful. Some Middle East countries—such as the United Arab Emirates—are moving toward an openness to religious freedom. As evidence of this trend, the report cited the accord between the Grand Imam of Al Azhar, Dr. Ahmed At-Tayyeb, and His Holiness Pope Francis in the United Arab Emirates earlier this year. At the signing, Dr. At-Tayyeb called on Muslims to protect Christian communities in the Middle East.

The Trump administration has played a part in the elevation of this issue on the global stage, having held the first-ever Ministerial to Advance Religious Freedom at the State Department last July, with another planned for this year. Right now, the U.S. has other opportunities on the international stage to demonstrate the importance of religious freedom. As we continue to engage in trade negotiations with China, we have a pathway to pressure the Chinese government to cease its persecution of Uyghurs, along with its detention and harassment of Christians, theft of religious symbols, and destruction of churches.

The UK report also calls on the international community to take actions to protect Christians across the globe: “Given the scale of persecution of Christians today, indications that it is getting worse and that its impact involves the decimation of some of the faith group’s oldest and most enduring communities, the need for governments to give increasing priority and specific targeted support to this faith community is not only necessary but increasingly urgent.”

This much-needed attention on religious freedom comes on the heels of the release of the United States Commission on International Religious Freedom’s (USCIRF) report on the world’s most egregious violators of religious freedom—which specifically highlighted the problems for religious freedom in China, Russia, and other oppressive states, in addition to the threat posed by cultural and legal opposition to religious freedom in much of the Islamic world. Just last week, Family Research Council released a report on the status of apostasy, blasphemy, and anti-conversion laws (which threaten the ability to choose or change one’s faith) around the world, and the threat they pose to religious freedom.

While it might be disheartening to learn about the hardships Christians face daily around the world, it is encouraging that this issue is starting to receive the national and international attention it deserves. If we do not remain informed, advocate for policies protecting Christian communities, and submit these things to God in prayer, nothing will change.

Arielle Del Turco is the Research Assistant for FRC’s Center for Religious Liberty.

Apostasy, Blasphemy, and Anti-Conversion Laws Are Violating Religious Freedom

by Family Research Council

May 2, 2019

There is unprecedented religious persecution around the globe. In recent years, the Pew Research Center has found increasing governmental and social hostility toward religious believers worldwide. For the last ten years, Christians have been harassed in more countries, including the United States, than any other religious group, and in 2016, one or more religious groups were harassed in 187 countries globally.

While the specific threats to religious freedom vary in type and intensity, one common source is the legal and cultural support for apostasy, blasphemy, and/or anti-conversion laws, which often threaten the freedom to choose and/or change one’s faith.

  • Apostasy laws punish people who “apostasize” and convert away from Islam. Across much of the Muslim world, apostasy laws—backed by social pressure—are used to deter apostasy and sometimes punish even allegations of the crime. These laws prevent Muslims from freely choosing their faith— whether Christianity or anything else.
  • Blasphemy laws generally prohibit insults to religion and are the most widespread of these three types of laws. In many places, while still on the books, such laws are no longer enforced or even used. But in other places, again in many Muslim majority countries, they are often abused when allegations of blasphemy are made against religious minorities—often with no evidence—to settle unrelated disputes and vendettas.
  • Anti-conversion laws, quite simply, prohibit people from converting to another religion. Primarily in place in parts of the Hindu and Buddhist world, anti-conversion laws are used by governments to maintain a majority of the population within their preferred religion.

While threats to religious freedom arise from other sources, these three types of laws and the cultural support behind them are major threats to the freedom to choose one’s faith—and thus to religious freedom worldwide.

Punishment for those convicted of violating such laws can include marriage annulment, property confiscation, prison sentences, or death sentences. A number of countries can impose the death penalty for violations of such laws, including: Afghanistan, Brunei, Iran, Malaysia (in certain states), Maldives, Mauritania, Nigeria, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, the United Arab Emirates, and Yemen.

Additionally, a mere allegation of a violation often results in intense social hostility from one’s community and family members, who retaliate with anything from slight harassment all the way up to violence resulting in death.

Drafted out of the ashes of the Holocaust, the Universal Declaration of Human Rights (UDHR) proclaims in Article 18 that “[e]veryone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance” (emphasis added). The laws listed and described here, and the social acceptance behind them, are a direct threat to religious freedom as articulated in the UDHR.

FRC’s new publication Apostasy, Blasphemy, and Anti-Conversion Laws is a list of countries that have apostasy, blasphemy, and/or anti-conversion laws on the books, though not all such laws are still actively used. Moreover, some are not likely to be used or are effectively nullified by other legal measures or constitutional rights which take precedence. However, for purposes of understanding where these laws have been or are in place, they have been left in this publication.

Examples of enforcement and cultural impact are provided for some of the countries where these laws are still enforced or have influence. When we understand how these laws work, and how they serve as obstacles to religious freedom around the globe, we can better advocate for the freedom of all people worldwide.

Read the full report here.

Also, don’t miss a discussion on this new report with FRC President Tony Perkins and Travis Weber, the Director of FRC’s Center for Religious Liberty.

Supreme Court Will Determine Whether “Sex” Means “Sex”

by Peter Sprigg

April 23, 2019

LGBT activists want “sexual orientation” and “gender identity” (“SOGI”) to be protected categories in federal non-discrimination laws. They have been using a two-pronged attack to try to achieve this goal—working through both Congress and the courts.

In Congress, they are pushing a sweeping bill that would add sexual orientation and gender identity to virtually every federal civil rights law. But in the courts (and some quasi-independent agencies like the Equal Employment Opportunity Commission), they have promoted the idea that federal law already outlaws SOGI employment discrimination. The theory is that discrimination based on “sexual orientation” and “gender identity” is actually a form of discrimination based on “sex”—which was outlawed in the Civil Rights Act of 1964. (Note that these two approaches are in some ways contradictory—if the judicial theory is correct, then the Equality Act is largely superfluous.)

The latter of these two approaches has now taken a huge step closer to resolution. On April 22, the U.S. Supreme Court agreed to take up three cases addressing the SOGI issue (these cases will be heard in fall of 2019).

In two of the cases (Bostock v. Clayton County and Altitude Express v. Zarda), the Court will decide the “SO” question—whether discrimination against an employee due to “sexual orientation” is included in the prohibition on discrimination “because of … sex” contained in the Title VII of the Civil Rights Act of 1964.

In a third case, R.G. & G.R. Harris Funeral Home v. EEOC, the Court will decide the “GI” question—whether Title VII’s prohibition on discrimination “because of … sex” includes a prohibition on discrimination against transgender people based on (1) their status as transgender or (2) the “sex stereotyping” theory derived from Price Waterhouse v. Hopkins (“sex stereotyping” initially meant one couldn’t discriminate against, for instance, a man for wearing pants that looked feminine—but has now been used to claim one could not discriminate against a man for wanting to identify as a woman).

When Congress prohibited employment discrimination based on “sex” in the Civil Rights Act of 1964, both their intention and the plain meaning of the word indicated that they were prohibiting discrimination against an individual because the person is biologically male or biologically female. The Supreme Court should decline the invitation to radically re-write the statute by expanding its meaning to cover “sexual orientation” and “gender identity.” Even Justice Ruth Bader Ginsburg, writing years ago about sex nondiscrimination protections in the Equal Rights Amendment, refused to countenance the idea that they would do away with simple male/female distinctions in the context of bathrooms.

The failure of LGBT activists to achieve their goals through the democratic process is no excuse to simply bypass that process and obtain their goal by judicial fiat instead.

FRC believes that SOGI laws are unjustified in principle, because these characteristics are not inborn, involuntary, immutable, innocuous (like race and sex), or in the U.S. Constitution (like religion). We also believe such laws pose a threat to religious liberty in many situations, as was an issue in the Harris case that the Court will hear.

At the end of the day, the core issue before the Court in these cases is whether it is within the legitimate power of judges to suddenly rewrite a 55-year-old statute. The answer is no.

Defending Family Values Across the Globe

by Travis Weber

April 10, 2019

This past weekend I was in Bogota, Colombia, to attend the 2019 Transatlantic Summit of the Political Network for Values—a conference where socially conservative legislators and activists gather from around the world to discuss the pressing concerns of life, family, and religious liberty. Many of the members of this network—which has asked me to serve on its committee of experts—come from primarily Catholic areas in Latin America and Europe, but share the concern of evangelicals in the United States that the historic Christian positions on these issues are being threatened. Meeting inside of the magnificent Congress of the Republic of Colombia, it became clear that there is much we can—and should—work on together.

In addition to remarks by pro-life and pro-family political leaders, the conference featured impassioned speeches like that of Obianuju Ekeocha, a Nigerian pro-life activist living in the UK. Obianuju rose to prominence after penning an open letter against Melinda Gates for pushing population control on Africa, and in addition to her day job as a scientist, she heads the pro-life organization Culture of Life Africa.

One of the most promising aspects of this gathering was the number of young people, not only in attendance, but who are seeking to serve their countries through political leadership. The young Colombian leader Angela Hernandez, who I met several years ago in Belgium at the same conference, again gave a fiery defense of the family this year.

Near the end of the conference, I spoke about FRC’s efforts to pass the Born-Alive Abortion Survivors Protection Act and end birth day abortion here in the U.S., in light of the increasing radicalism of the Democrat Party on this issue. When we have our own elected leaders openly defending infanticide, we know the time has come for action—and prayer.

We in the United States must remember that there are many fellow believers around the world who share our commitment to life, family, and religious liberty. This year’s Political Network for Values Conference was an encouraging reminder of that. May we continue to work together with all allies—foreign and domestic—to advance faith, family, and freedom.

How to Protect Religious Minorities in the Public Square (Part 5 of 5)

by Family Research Council

March 28, 2019

Read Parts 1, 2, 3, and 4

Religious minorities, like all Americans, want the law to protect their right to the free exercise of religious beliefs in the public square. But the Lemon test and its related cases and doctrines have led to the scrubbing of religious practice from the public square and do not adequately protect them.

Instead, an Establishment Clause doctrine that, in Thomas Jefferson’s words, reflects the clause’s meaning at the “time when the Constitution was adopted” and “recollect[s] the spirit manifested in the debates” benefits everyone. This is the originalist approach. It ensures judicial objectivity and empowers the political branches to accommodate religious minorities.

Critics of the originalist approach argue that the Lemon test and related cases should stay in place. Yet they shouldn’t, for they are not faithful to the Constitution and fail to protect religious liberty, including for religious minorities. Moreover, the cases we have discussed and the laws and executive action we have highlighted show that the courts should not be the first stop in protecting religious freedom. In fact, they should be the last.

A historical approach for the courts and a reliance on the flexibility and responsiveness of the political branches is the best formula for a robust protection of religion—all religions—in the public square.

This blog series is based on an article in the Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”

The Political Branches Are Better Equipped to Protect Minority Religions (Part 4 of 5)

by Family Research Council

March 27, 2019

Read Parts 1, 2, and 3

The political branches have demonstrated that they are better equipped to protect religious minority rights and respond to America’s increasingly pluralistic society. In light of the court decisions discussed earlier, consider the following:

  • The Religious Freedom Restoration Act, signed into law by President Bill Clinton in 1993, created “very broad protection for religious liberty.” It received unanimous support in the U.S. House of Representatives and near-unanimous support in the U.S. Senate. It applies to all sincerely held religious beliefs. It came after the Supreme Court ruled against a Native American’s right to exercise his religious beliefs.
  • The Army guaranteed strong protection for religious practices, specifically the practices of observant Sikhs, through Army Directive 2017-03. It directs “Army uniform and grooming policy to provide wear and appearance standards for the most commonly requested religious accommodations.”
  • The Department of Veterans Affairs, recognizing the religious diversity of its servicemembers, has funeral guidelines to honor each fallen soldier’s religious convictions.
  • Based on Title VII of the Civil Rights Act of 1964, the Supreme Court upheld a Muslim teenage girl’s right to wear a hijab—a headscarf worn for religious reasons—without discrimination in the hiring process.
  • The Department of Defense issued Instruction 1300.17(4)(a), which states that “[t]he DOD places a high value on the rights of members of the Military Services to observe the tenets of their respective religions.” The Instruction directs that “[r]equests for religious accommodation will be resolved in a timely manner and will be approved,” so long as they do not “adversely affect mission accomplishment.”
  • Congress passed the National Defense Authorization Acts for fiscal years 2013 and 2014, which provides for the “[e]nhancement” and “protection of rights of conscience.”
  • The Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 permits the placement of commemorative monuments in memory of “service in the Armed Forces” in Arlington National Cemetery, and it does not prohibit the inclusion of religious symbols on those monuments.
  • In 2011, the executive branch accommodated Amish religious beliefs regarding the issuance of Social Security numbers.
  • Federal law allows religious objectors to Social Security taxes—notably including the Amish, one of whom lost a Free Exercise Clause challenge to such taxes in 1982—to apply for exemptions for themselves and their employees.

Some argue that an originalist approach would allow a government to “endorse its preferred religious teachings and be candid about what it was doing.” Others argue that an originalist approach would not “address the danger that the majority will, through government endorsements of its own faith, marginalize minority groups.”

The facts do not bear this out. Moreover, as Establishment Clause expert Professor Michael McConnell states, “the Court’s intervention over the last forty years has made things worse, not better.” Of course, courts have an important role in protecting religious minorities. But as Professor Hillel Y. Levin argues, the need for judicial intervention is the exception and not the rule.

No government institution—including the judiciary—can perfectly protect against the human rivalry and selfishness that critics fear would take hold under an originalist approach. But as a matter of structure, the political branches have greater capacity to protect the rights of religious minorities and to respond to bad policy.

This blog series is based on an article in the Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”

An Originalist Approach Protects Religion in the Public Square (Part 3 of 5)

by Family Research Council

March 26, 2019

Read Parts 1 and 2

The answer to confusion over the Establishment Clause is an originalist understanding of the Constitution. This approach includes analyzing historical practices at the time of the founding and the ratification of the First Amendment. The Court has increasingly incorporated this reasoning in its decisions.

The benefit of an originalist understanding is, as one scholar notes, that “the judge tries to discover not what the text ought to mean but what it did mean to those who wrote the words and, more importantly, to those who voted for those words to become law.”

When we apply this reasoning, we find that government actions involving religious displays or practices are often constitutional. As one court of appeals judge observed, “There is, put simply, lots of history underlying the practice of placing and maintaining crosses on public land . . .” Though the judge spoke of crosses, a court applying a historical interpretation of the Establishment Clause would likely uphold displays inspired by minority religions, too.

Some argue that this would introduce a “narrower standard.” This is a problem because focusing “only on coercion would open the door to sectarian endorsements that will aggravate religious tensions and needlessly divide Americans.”

But an originalist approach sets clearer boundaries for which religious displays or practices are acceptable. This is fairer and more predictable than current law. It is difficult to say exactly how many more religious displays would be considered acceptable under an originalist interpretation, if applied consistently. But recent cases indicate that principled boundaries would be no less helpful to religious minorities than to members of majority faiths.

In Town of Greece v. Galloway (2014), in which the Court adopted an original understanding of the Establishment Clause with respect to legislative prayer, the Court said it was “virtually inconceivable that the First Congress, having appointed chaplains whose responsibilities prominently included the delivery of prayers at the beginning of each daily session, thought that this practice was inconsistent with the Establishment Clause.” As American society has grown more religiously diverse, figures including the Dalai Lama, Rabbi Joshua Gruenberg, Satguru Bodhinatha Veylanswami, and Imam Nayyar Imam have opened legislative sessions with statements expressly declaring their deeply held religious beliefs. As the Court said, Congress “acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds.”

Under Lemon and succeeding tests, courts often proscribe government support of an action or display simply because it is sectarian. But the purpose of the First Amendment was never to eviscerate religion from the public square. An originalist interpretation is the right approach to Establishment Clause challenges.

Applying an originalist approach likely means that the courts will have less say over whether a religious display can appear on public property. But this is an appropriate allocation of power, and our next post explains why.

This blog series is based on an article in the Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”

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