The First Amendment is a marvelous thing. It is what stands between us as citizens and an authoritarian regime. It affirms our right to freedom of speech, freedom of the media, freedom of religion and the right to assemble and protest — in other words, that we not only have the right to be difficult but different, as well, and cannot be discriminated against for being either.
Unfortunately, caught up in our politically correct sensibilities, we have largely lost our appreciation for those rabble rousers who exercise their First Amendment rights. Nowhere is this more evident than in society’s increasing intolerance for religious freedom — religion tending to breed followers who, oftentimes at odds with society’s mores, are both difficult and different. This tension between political correctness and religious freedom is heightened in such cases as Phelps v. Snyder and Christian Legal Society (CLS) v. Martinez, which present scenarios that test our tolerance for expressive yet politically incorrect First Amendment activities.
In Phelps v. Snyder, which will be argued before the U.S. Supreme Court this fall, the justices will be asked to decide whether the First Amendment protects the right of a rabidly anti-homosexual Christian church to protest at high-profile funerals and spout hateful rhetoric.
CLS v. Martinez, which is far less colorful yet also involves what critics perceive to be religiously based, anti-homosexual sentiment, was recently decided by the Supreme Court. At issue was whether the CLS student group at the University of California Hastings Law School could restrict its membership to individuals who share their Christian beliefs, particularly as they relate to sexual conduct, and still be granted access to campus resources and forums.
The court’s 5-4 ruling against CLS reeked of anti-religious prejudice. In concurring with the majority, Justice Stevens declared, “Although the First Amendment may protect CLS’ discriminatory practices off campus, it does not require a public university to validate or support them.” That’s where the Supreme Court got it wrong: There’s no “may” about it. The First Amendment clearly protects CLS’ right to exclude those whom they believe violate the tenets of their religion, on or off campus. To put it another way, whether or not one approves or agrees with CLS’ point of view, they have a First Amendment right to be different and stand apart from the crowd. Yet in ruling as it did, thereby imposing a forced integration upon the Christian student group, the Supreme Court succeeded in enshrining an oppressive political correctness as a central tenet in American society and in American university life and undermining not only the freedom of association but the freedom of religion, as well.
The expressive freedoms enshrined in the First Amendment were not grouped together by chance — they are interconnected and, thus, will rise and fall together. As historian Roland Barton recognizes: “All freedoms hang together. Civil liberties scarcely thrive when religious liberties are disregarded, and the reverse is equally true.” That is why governmental attempts to diminish religious freedom are so dangerous: if religious believers lose their rights, we all lose our rights.
Frankly, all Americans, whether or not they subscribe to a particular religious belief, should be worried that the expansive right to “freedom of religion,” the bedrock of the First Amendment, is systematically being dismantled by the courts. Indeed, in recent years, the federal courts have chipped away at religious freedom to such an extent that even non-verbal forms of expression in public have been deemed to be illegal (a coach bowing his head out of respect while student athletes offer a pre-game prayer; a student wind ensemble’s choice of an instrumental arrangement of “Ave Maria” at their high school graduation ceremony, etc.). Consequently, we have gone from a nation where religious freedom was highly prized to one in which religion is being privatized and forced out of public institutions and public life.
The separation of church and state, nowadays interpreted as prohibiting any public recognition of religion at all, is more deeply entrenched in America than anywhere else. Religion has been relegated to the sidelines of public debate. Among elites it is held in low esteem — something useful for weddings and funerals but otherwise dispensable. A skeptical, iconoclastic state of mind is one of the distinguishing characteristics of the knowledge classes. Their commitment to the culture of criticism is understood to rule out religious commitments. The elites’ attitude to religion ranges from indifference to active hostility.
Those who have adopted this secular outlook frequently cite the “wall of separation between church and state” as justification for censoring, silencing and discriminating against religious individuals, especially in the public schools. The threat posed by this extreme secularism is that religion and religious people are not merely kept separate from the school system but are instead forced into a position of utter subservience.
Rest assured, if this trend continues unchecked, it will not be long before “freedom of religion” is done away with altogether and replaced with a more restrictive, government-sanctioned “freedom of worship” that limits people of faith to worshipping in the privacy of their church, synagogue or home.
If we do not maintain the ideal of religious freedom, then the only alternative is a form of secular society and government that respects no one’s freedom or opinions at all. After all, as history illustrates, a long secular trend always leads to authoritarian government and, in some extreme examples, to despotism.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at johnw@rutherford.org. Information about The Rutherford Institute is available at www.rutherford.org.
