Knocking Religious Liberty Off Balance

April 11, 2016

Religion, politics, democracy. 

Those are complex areas, ripe with challenges - especially when mixed. It's why the crafters of the U.S. Constitution carefully waded into the arena of religion. The only religious reference in the original Constitution comes in a prohibition of religious tests for office. The First Amendment includes two clauses on religion, the only freedom in that amendment to get two clauses. Those two clauses - the Establishment Clause and the Free Exercise Clause - sometimes compete with one another, thus requiring a delicate balance between the two.

While some people swing too far toward the Establishment Clause and seek to improperly excise any hint of religion from the public square, others prefer the Free Exercise Clause and seek to sneak in favoritism toward specific religious beliefs. Some people even seem to act as if their free exercise rights are being squashed unless they're allowed to establish their religion! This imbalanced philosophy seems to undergird some of the anti-LGBT bills masquerading as "religious liberty" legislation in Missouri, Mississippi, and elsewhere.

As I noted last week, I joined a recent rally at the Missouri Capitol to oppose a bill (SJR 39) that would enshrine discrimination against same-sex couples in the state Constitution. In addition to opposing discrimination, I'm also bothered that the proponents of the bill claim it's "religious liberty." In reality, the bill perverts religious liberty by transforming it from being a shield to protect people (usually minorities) to instead being a sword to discriminate against minorities. If we redefine religious liberty in such a manner, we might as well also tear down the statue of Thomas Jefferson as part of the renovations currently occurring at the Missouri Capitol.


The conception of SJR 39 actually came not in the halls of the statehouse, but a few blocks away in a religious building. Don Hinkle, director of public policy for the Missouri Baptist Convention (the largest religious body in the state), explained how the bill came to life.

"SJR 39 is the culmination of months of work by faith leaders, lawmakers and legal scholars from across Missouri and the nation," Hinkle wrote. "Much of the work was accomplished in a series of private meetings at the Baptist Building."

"In August, I began leading meetings at the Baptist Building with faith leaders, General Assembly staff, constitutional scholars and lawmakers," he previously bragged.

Legislation privately crafted in the building of the largest religious denomination and supported by the second largest (Catholics) just happens to privilege a religious belief of those two groups. This should raise serious questions about the neutrality of the bill and whether it's really balanced. Religious liberty protections generally are more needed for minority faiths and beliefs (to protect them from the ruling majority).

While religious accommodations are important and sometimes needed, we must also balance the rights of others. The Supreme Court previously ruled the Establishment Clause prevents legislation that favors religious accommodations that harm others, as SJR 39 would. As Holly Holllman of the Baptist Joint Committee for Religious Liberty recently argued, "How we protect religious liberty is just as important as why we protect it."

Baptists historically fought for religious liberty for all (as opposed to the more common argument by people who urged religious liberty for just their own people). Unfortunately, as Baptists in the U.S. moved from a persecuted minority to sizable part of society, some Baptists started looking for ways to establish their own beliefs instead of fighting for the religious rights of all.  As Dartmouth religion professor Randall Balmer once asked while noting this transition: "Where have all the Baptists gone?"

I see a problematic majoritarian attitude in the crafting of SJR 39. It's tempting to support efforts to legislate my own beliefs. However, that poisonous apple leads to insincerity since real faith must be freely chosen. As James Madison, the "father of the Constitution," believed, religious separation is not only good for government but also for religion. Amen!

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