Is religious liberty under threat in the United States? This is an interesting question and bears examination. The controversy over the passage of SB 1062 in Arizona and the decision by the Governor, Jan Brewer, to veto the legislation has many people insisting their religious liberty is threatened and determined to stiffen their resistance to this perceived threat. Regarding religious liberty in US society, the National Council of the Churches of Christ in the USA, in 1944 (then Federal Council of Churches of Christ), formed the following definition:

Religious liberty shall be interpreted to include freedom to worship according to conscience and to bring up children in the faith of their parents; freedom for the individual to change his religion; freedom to preach, educate, publish and carry on missionary activities; and freedom to organize with others, and to acquire and hold property, for these purposes. (as cited in Wikipedia)

At present, these are fundamental freedoms guaranteed in US law. Is there any reason to believe they are at risk?

Historically, religious liberty, particularly the free exercise of religion, is a concern for federal law makers in the United States. In drafting the Bill of Rights of the United States, which was ratified in 1791, the First Amendment addresses this question stating:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (as cited in the Charters of Freedom)

More recently, the Religious Freedom Restoration Act of 1993 (RFRA) was passed into law in a near unanimous vote in Congress. The intention of this legislation is noted below:

to protect religious individuals and organizations against government interference with the practice of their faith. One can bring a lawsuit against the federal, state, or local government if s/he belief that laws or other governmental action substantially burdened their religious practices. In such actions, the government must demonstrate that its actions served a compelling interest and that there were no less restrictive ways to accomplish its goals. (USLegal)

Following the passage of the RFRA into law at the federal level, several states added similar legislation to their state constitutions as is shown in the following map.

Religious liberty remains a fundamental freedom guaranteed in US law. This should provide relief to those who fear their religious liberty is at risk, but the fear persists. The difficulty stems from the perception that another fundamental freedom guaranteed in US law, notably Section 1 of the 14th Amendment to the Constitution of the United States (enacted in 1868), infringes on the constitutional guarantee of the free exercise of religion. Section 1 of the 14th Amendment states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (as cited in Our Documents)

What this means, in short, is that “all state legislation, and state action of any kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws is prohibited by the Fourteenth Amendment.” (USLegal)

Personal liberty, equality before the law and the pursuit of happiness, together with religious liberty are fundamental freedoms guaranteed in US law. It is crucial to note these fundamental freedoms apply to gay citizens also. SB 1062 was intended to clarify the Arizona Religious Freedom Amendment,  to allow discrimination against gay people in the public realm (particularly in the marketplace) on the basis of their free exercise of religion. However, as Barry Goldwater, the conservative Republican Senator from Arizona, stated on this topic in 1994 “it’s time America realized that there was no gay exemption in the right to life, liberty, and the pursuit of happiness in the Declaration of Independence.” (as cited in the Sun Sentinel). The controversy over SB 1062 in Arizona did make me recall occasions when Mika and I hired contractors to work on our house. I never stopped to worry about their religious beliefs or what they may think of gay people. It is not like we have decorated our house with rainbow flags or homoerotic artwork, but we are two men living under the same roof in Centretown Ottawa (the unofficial gay village). Contractors have come into our home and carried out work on the house for us. The only thing on their minds was to get on with the work and see that they collected payment when it was completed.

Just as we did not concern ourselves with the religious beliefs and attitudes toward gay people on the part of the contractors, they had no issue in working for two men living together. Why cannot this be the case in US society? Religious liberty is guaranteed in law in the United States, though what people believe and how they exercise their beliefs is a private matter. Discrimination on the basis of sexual orientation is no longer acceptable, even on the grounds of religious objection. No doubt this is difficult for those who harbour a religious objection to homosexuality to accept, especially as gay people in the US are finally being granted full civil rights, but they will have to adapt to the reality gay people only want to be treated as any other citizen as they exercise their right to life, liberty and the pursuit of happiness.

Posted by Geoffrey