The promise of religious liberty in the United States continues to face challenges—particularly in regard to the accommodation of religious practices, Baylor University President Ken Starr told an international conference on Christianity and freedom.
Starr focused on the U.S. Supreme Court’s role in addressing religious liberty when he addressed the conference in Rome, cosponsored by Baylor’s Institute for Studies of Religion and Georgetown University’s Religious Freedom Project.
“For much of the American constitutional experience, the United States Supreme Court had surprisingly little to say about religious liberty,” he said.
That changed when the 14th amendment to the U.S. Constitution passed after the Civil War, guaranteeing due process and equal protection, and when the court determined it made the Bill of Rights generally applicable to states, he observed.
“Once planted, the equality guarantee was like the biblical mustard seed in the hands of the 20th century Supreme Court,” Starr said. “In short order, the court effected a constitutional revolution with the determination that the 14th amendment demanded that the states—not the national or federal government—abide by most, but not all, of the original Bill of Rights, including the religion clauses.
“The second American revolution had begun—a peaceable one, carried out in the courthouses.”
Three “bedrock principles of religious liberty” emerged, he noted—freedom of conscience, equality and accommodation of religious practices.
Starr applauded the “soaring language” of the Supreme Court’s ruling in West Virginia State Board of Education v. Barnette. In that decision, the court defended the rights of two Jehovah’s Witnesses schoolchildren who were expelled for refusing to participate in their school’s flag-salute ceremony.
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein,” Justice Robert Jackson wrote.
Starr pointed to the ruling on freedom of conscience as “language not only for lawyers and judges but for the American people. It was a cultural statement of what America should be.”
Likewise, the Supreme Court defended the principle of equality when it upheld the Equal Access Act of 1984, which required that if a school allowed other extracurricular student groups to meet on campus, it could not discriminate against student Bible clubs or religious groups.
Principle of accomodation
The principle of accommodation, however, continues to provoke controversy, he noted. From employment disputes involving a Seventh-Day Adventist to the ceremonial use of peyote in Native American religions, courts have wrestled with the principle.
In 1993, Congress passed the Religious Freedom Restoration Act to prevent laws that substantially burden the free exercise of religion. The Supreme Court subsequently ruled in the 1997 City of Boerne v. Flores decision that RFRA overstepped the power of Congress to the degree that it sought to apply the law at state and local levels. However, RFRA continues to apply to the federal government.
Starr pointed to the pending case involving Hobby Lobby and mandates regarding contraception coverage in the Affordable Care Act as a crucial test of how the Supreme Court will apply the principle of accommodation.
Hobby Lobby founder David Green, a member of Council Road Baptist Church in Bethany, Okla., and members of his family say emergency contraception that terminates a pregnancy after fertilization occurs runs contrary to their deeply held religious beliefs regarding the sanctity of human life.
“The question for the court is whether or not RFRA allows a for-profit corporation to refuse to provide what is required to be provided to their employees by federal law, solely because of the owners’ religious beliefs. This will be closely watched in the months ahead—an enormous test of RFRA and, more broadly, the principle of accommodation,” Starr said.
The Supreme Court operates in a context of tension between idealism and reality, he noted.
Search for liberty under law
“In large measure, the American political and cultural experience has been a search for liberty under law—what the United States Supreme Court has called ‘ordered liberty.’ Inextricably intertwined with that search is the political and cultural demand for equality under law. That is, government is to have as its legal and constitutional polestar equality of all persons under law,” Starr said.
“That is an ideal. But achieving this ideal—liberty and equality under law—is illusive in a fallen world. … Actual practice revealed by historical experience demonstrates a continual, seemingly inevitable tension between widely accepted political and cultural ideals and the harsh reality of curtailments of both liberty and equality.”
Starr traced the historical development of the American commitment to religious liberty and separation of church and state. He cited Roger Williams’ call for a hedge to separate the “garden of the church” and “the wilderness of the world,” and Thomas Jefferson’s image of a wall of separation between church and state.
He noted particularly the role of Baptist Pastor John Leland in calling for a Bill of Rights that would include protection of religious liberty—a cause James Madison championed.
“Freedom of religion—including freedom of conscience—had triumphed. The American constitutional framework had been constructed,” Starr said.
“But as the Hobby Lobby case now pending before the Supreme Court demonstrates, the contours of the constitutional provisions remain subject to vigorous debate. … The promise of religious liberty remains under challenge.”