Monday’s Church/State Battle

Monday’s Church/State Battle

On Monday, March 20th, federal Judge Neil Gorsuch, President Trump’s nominee to replace the late Antonin Scalia on the United States Supreme Court, is slated to face questioning from the U.S. Senate during his confirmation hearing. Among other topics, his views on religious liberty are certain to be challenged. No wonder. Not only is that issue an atom-splitter, dividing the political right from the political left down to their very core, but it’s an area where Gorsuch has already made his mark: he authored the Court of Appeals decision that upheld the religious rights of the faith-based business owners in the Hobby Lobby case, a decision applying the Religious Freedom Restoration Act [RFRA] that was ultimately affirmed by the Supreme Court.

Contrast that with another judicial opinion – namely, the ill-conceived reasoning of a Hawaii federal judge who just ruled that President Trump’s second Executive Order (EO) that temporarily suspends a flood tide of undocumented refugees from 6 terror-ridden states from entering the U.S. until a proper vetting system is in place, somehow violates the Establishment Clause. Why? Because the EO supposedly is hostile to the Muslim religion; even though the President’s written Order never mentions religion or Islam, leaves untouched the majority of nations where Islam rules, and the 6 nations specified were also on the disfavored list created by President Obama.

In light of that, I decided to post below the concluding remarks on the subject of religious liberty from my prepared testimony that I delivered a while back before the House of Representatives Subcommittee on the Constitution and Civil Justice, in my role as Special Counsel to the American Center for Law & Justice (ACLJ).

For someone like me, wearing the hats of lawyer as well as fiction writer, the comments I quoted below from law professor Cox about the relationship between spiritual freedom and creative expression were personally impacting. But even more importantly, Cox harkened back to the Founders in order to put religious freedom into context, a necessity if we are ever going to breathe reason and history, rather than social engineering and political correctness, into the Religion Clauses of the First Amendment. Religious liberty was meant to be a sturdy, logical structure of protection, not some faux decoration that serves only to satisfy political agendas.

So, here were my final remarks to the House Subcommittee:

Those of us who have ever attended a religious liberty rally, or visited a church function have benefited from freedom of religion protections under the First Amendment, as well as the Congressionally-enacted RFRA [Religious Freedom Restoration Act]. But in truth, we have also benefited from the remaining provisions of the First Amendment at the same time: free speech for the opinions voiced at such a rally or gathering; the free press rights of publicity and media coverage for the event, and freedom of assembly and freedom of association protecting the rights of like-minded persons to gather together for a common cause.

The Bill of Rights may have enumerated those First Amendment rights separately, thus causing our Supreme Court to analyze them individually, but they all pour out of a common well of liberty. As Law Professor and former Watergate Special Prosecutor Archibald Cox once noted, at the Founding, in order “[f]or the genius of American constitutionalism to develop, the [Supreme] Court had first to assert, and then win, the people’s support for the Court’s power of interpretation ‘according to law.’ ”

Our task today is similar: to “win the people’s support” for an understanding of the true value of fundamental rights, beginning with the cornerstone – religious liberty, whether the protection comes from Congress in the form of RFRA, or through the First Amendment decisions of the Supreme Court. If we accomplish that, our citizenry is bound to gain a greater understanding of the entire Bill of Rights as well as the principles of constitutional governance. Religious liberty was at the very core of the Bill of Rights, and bore a relationship to all other rights. As Professor Cox goes on to write:

“Concern for a broader spiritual liberty [at the Founding] expanded from the religious core. The thinking man or woman, the man or woman of feeling, the novelist, the poet or dramatist, the artist, like the evangelist, can experience no greater affront to his or her humanity than denial of freedom of expression.”

Religious freedom should not only be viewed as a preeminent right; it must also be viewed as part of an organic whole with other liberties. The first ten Amendments to our Constitution were drafted at the same time by the same men who, despite a diversity of political leanings, shared a similar vision of America’s new Republic, and of the various freedoms that needed to be secured to the people. Fortifying religious liberty, the “core” of America’s founding, will help us today fortify the whole of all those other rights and privileges envisioned by the Founders, while also reaping to our nation the blessings that accompany a wise respect for religious conscience.


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