Religious Freedom Day: An Important History, Given the Current Hostility
COMMENTARY: As our current government leaders move to pass the so-called Equality Act, a necessary lesson on what religious freedom in the United States really means and how we must combat the current war being waged upon it.
In addition to being the day in which we celebrate the birthday of civil-rights leader and Baptist minister Martin Luther King Jr., this Monday, Jan. 16, is National Religious Freedom Day.
And this year, shockingly, it may not be a celebration of this long-standing civil liberty that lies at the heart of the identity of the United States. Thanks to the Biden administration, it threatens to become merely symbolic – or worse: a hollow joke.
We must treat the day as an opportunity to rally the forces of freedom, to preserve the legacy of the Founding Fathers. I am sure you know the background. After the American colonies declared independence, the Virginia General Assembly recognized that many of the laws that operated in the colony of Virginia would not work for the newly independent state. The first General Assembly in 1776 appointed a committee of lawyers to review the existing laws and redraft them for an independent Virginia. That committee included Thomas Jefferson. He drafted the Virginia Statute for Religious Freedom in 1777, but it took another statesman, James Madison, to shepherd its adoption by the Virginia Legislature in 1786.
The statute importantly provided that:
“No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”
Jefferson learned of the statute’s passage while overseas serving as U.S. minister to France. He had it translated into French and Italian and hoped it would be distributed as widely as possible. Madison later wrote that the Virginia Statute for Religious Freedom “is a true standard of Religious liberty: its principle the great barrier against usurpations on the rights of conscience. As long as it is respected & no longer, these will be safe." And in the first Supreme Court case concerning the religion clauses of the First Amendment, the Court unanimously declared that the statute "defined" religious freedom.
A congressional decree directs the president to issue a yearly proclamation designating Jan. 16 as Religious Freedom Day. This has been done since 1993.
That year saw another victory for the cause of religious freedom, the passage by Congress of the Religious Freedom Restoration Act (RFRA). This mandates generally that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” While the Supreme Court has held that the RFRA does not apply to the individual states or local governments, this law continues to be an important check on the reach of the federal government. That is, unless the law specifically excludes RFRA from application.
Some of the names involved in the ultimate passage of the RFRA may surprise you. In 1990, then-Sen. Joseph Biden, D-Del., introduced an initial version of the legislation. Three years later, the RFRA was introduced in the House of Representatives by Chuck Schumer, D-N.Y., who was a congressman at the time. A companion bill was introduced by Sen. Ted Kennedy, D-Mass. A unanimous House and nearly unanimous Senate passed the bill. President Bill Clinton signed the RFRA into law. That such liberal politicians would have promoted a robust defense of religious freedom seems inconceivable today, in light of a new law being proposed: the Equality Act.
The Equality Act claims to address discrimination on the basis of sexual orientation or gender identity in a wide range of settings such as public accommodations, employment and education. It amends the Civil Rights Act of 1964, a comprehensive law that was enacted at a time of rampant racial discrimination. Since the Equal Protection Clause of the 14th Amendment prohibits only discriminatory governmental action, the Civil Rights Act was needed to eliminate the widespread discrimination by private actors.
Unlike the Civil Rights Act, the Equality Act expands the definition of “public accommodation” to include, among other things, “any establishment that provides a good, service, or program, including a store, shopping center, online retailer or service provider, salon, bank, gas station, food bank, service or care center, shelter, travel agency, or funeral parlor, or establishment that provides health care, accounting, or legal services,” and any “place of or establishment that provides exhibition, entertainment, recreation, exercise, amusement, public gathering, or public display.” The act also expressly provides that an individual cannot be “denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual’s gender identity.”
If that is not enough, the Equality Act’s treatment of religious-freedom protections should trigger widespread opposition from all civil libertarians. Specifically, Section 9 creates a provision stating that the RFRA “shall not provide a claim concerning, or a defense to a claim under ... or provide a basis for challenging the application or enforcement of” the laws the act amends. In other words, it erases the important protections of the RFRA in the context in which it is needed most today.
As a member of the Senate back in the early ’90s, Biden voted in favor of the RFRA. But that was a different Joe Biden. Thirty years later, President Biden endorses the Equality Act and has promised to sign it into law. He is not alone. Other supposedly civil-libertarian groups like the American Civil Liberties Union (ACLU) join him today in preferring “progressive” priorities like the Equality Act over their historic commitment to religious freedom. And both the Biden administration and groups like the ACLU that were formed to advance the cause of civil liberties have sided against religious freedom and religious expression in key cases recently before the Supreme Court.
Last year, President Biden issued the congressionally-mandated proclamation commemorating National Religious Freedom Day. He failed to exalt the primacy of religious freedom as a cherished civil liberty. Instead, religious freedom seemed to be a bit of an afterthought: “My Administration is committed to strengthening the federal workforce by ensuring that it resembles the full breadth of our people by promoting diversity, equity, inclusion, and accessibility, including on the basis of religion.” Given the Biden administration’s commitment to advancing the progressive agenda, religious freedom may be even less than an afterthought in the years to come.
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