Religious Freedom Is a Line of Defense We Can Hold

COMMENTARY: Our first freedoms are under attack. But instead of pursuing a ‘new order’ or promoting regime change, we need to double down and demand a return to the founding principles of the republic.

The framers of the Constitution understood the critical importance of religious freedom
The framers of the Constitution understood the critical importance of religious freedom (photo: Unsplash)

The right to think and act in accordance with our beliefs is under sustained attack these days. There really is no precedent in American history for what’s happening. So-called progressives are trying to police our behavior, manipulate our thoughts and indoctrinate children.

Courageous figures are successfully fighting, though, to protect our constitutional freedoms of free speech and the free exercise of religion. 

Jack Phillips, the baker, and Lorie Smith, the website designer, were told they must create art inconsistent with their beliefs. Gerald Groff, the mailman, was told he must work on Sundays, even though his employers had previously promised to respect his reverence for the Sabbath. Joseph Kennedy, the high-school football coach, was ordered to stop praying publicly after games. 

In each case, progressive employers, officials and judges thought they could force them to go along with their agenda. But in each case freedom triumphed over secular ideology, thanks to the First Amendment. In addition to guaranteeing free speech, it also specifically safeguards religion in America. This double protection, and federal laws such as the Religious Freedom Restoration Act, together with various religious protections in civil-rights laws, make it clear that the government can’t discriminate based on religion and should accommodate religious exercise. 

Religious freedom is our last line of defense. And it’s a line we can hold. 

But opponents of these efforts are nothing if not ambitious, and in addition to campaigns against individual people of faith, they are also targeting the autonomy of churches and faith-inspired institutions. 

Fortunately, the Constitution can once again come to the rescue by offering a proper understanding of the relationship between church and state. 

The framers of the Constitution understood the critical importance of religious freedom, guaranteeing that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” 

One thing this means is that the government can’t treat religion less favorably than secular activities or institutions. This Supreme Court continues to reinforce the principle. 

The pandemic gave us a classic example of this. The states of New York and California drew up rules that severely restricted religious gatherings — but, in a jaw-dropping display of double standards, allowed people to shop freely. 

The Supreme Court put a stop to that. As it noted in the New York case, “Even in a pandemic, the Constitution cannot be put away and forgotten.” 

The law also makes it clear that the government can’t stick its nose into the business of churches and religious schools when it comes to hiring those who are educating young people in the faith. While the Supreme Court has reaffirmed this “ministerial exception,” insisting that churches, church-run institutions and religious schools can operate consistent with their mission is an urgent challenge for defenders of religious liberty — because once the government starts encroaching on religious autonomy, it won’t stop.

Defenders of freedom also need to be aware of the particularly sinister push to redefine sex to in terms of “gender identity” in all government regulations. This began during the Obama administration and has become an all-consuming obsession under the Biden administration. 

Health and Human Services’ regulations that forbid discrimination on the basis of sex, for example, have been weaponized to force Christian hospitals and doctors to prescribe hormone therapies or perform “gender-transition” procedures — and force insurance companies to pay for it. Lawsuits brought by religious hospitals, doctors and benefit plans have stopped this for now, but this attempt to pervert health care is far from over. 

And ignoring constitutional prohibitions against government-compelled speech, the Equal Employment Opportunities Commission has proposed enforcement guidance that “misgendering” is a form of workplace sexual harassment. And just this past month, HHS informed its employees of a new speech code whereby their co-workers must be referred to by their preferred pronouns. 

Also — and this is profoundly disturbing — the department has proposed a new rule to limit the placement of foster children to those agencies whose families affirm the chosen “gender identity” of children in need of fostering, threatening foster families who faithfully follow pastoral guidance against perpetuating gender confusion and mutilation.

Another attack on the primacy of the family is happening in schools across the country, as parents are fighting to protect their children from the twisting of curricula to fit the soul-destroying, brain-rotting dogma of cultural Marxism. This dystopian madness includes persuading young children that they can change their sex on a whim and, in some cases, butcher their bodies.

The good news is that brave parents are equipped to win those battles. Lawmakers across the country are backing school-choice initiatives that give parents and children an escape from this ideology. Once again, progressives are throwing a fit — especially when parents and lawmakers invoke our Constitution’s protection of religious freedom. 

Christian parents in Maine recently forced the state to extend its voucher program — for students in rural areas with no public schools — to private religious schools. The state took it badly and is now trying to weaponize its antidiscrimination laws to target religious schools. 

In California, Orthodox Jewish parents whose children have special-educational needs are challenging the state's bigoted rule that specifically excludes religious schools from the federal funding it distributes.

In Montgomery County, Maryland, preschool and elementary-school parents — Muslims as well as Christians — don’t want books that brazenly introduce their youngsters to gruesome gender ideology forced on their children. But their school board refuses to respect their right to opt their kids out of this teaching. These parents sued and are willing to go all the way to the Supreme Court to defend their children. 

Fighting the cultural onslaught can be done successfully. We just need to do so smartly and effectively. We can’t be distracted — or we’ll cede the very ground that guarantees our rights in the first place.

One current distraction comes from a small group of our fellow Christians. They call themselves post-liberals and promote an idea so far-fetched that it amounts to reinventing America. Their plans — conveniently fuzzy on details — involve growing the power of the government through the administrative state, promoting activist judges to advance what they think is the common good, and trashing our free-market system. Some of these radical ideologues masquerading as conservatives have even suggested abandoning our historic commitment to religious freedom and other crucial rights. 

Instead of pursuing a “new order” for our country or promoting regime change, we need to double down and demand a return to the founding principles of the republic. These principles, enshrined in the Constitution and protected by a majority of the justices on this Supreme Court, are still working. 

And none of these victories that so infuriate the left came by following crazy blueprints for an imaginary “post-liberal” America. Instead, we’ve secured these victories by taking practical steps and drawing on the right legal expertise that respects and understands the rule of law and the first principles of the American founding.

The Conscience Project has a video series that explores these issues to better prepare Americans of faith. We believe that with a firm commitment to these legal principles — and with the necessary courage — we can protect our rights and safeguard the next generation against fundamentalist social engineers who, left unchecked, will turn the United States into an authoritarian progressive dystopia.