Much Ado About Religious Liberty

By Jeffrey Weiss

An interesting report was released last week that offers strong evidence that serious institutional hostility toward religion in this county is exceedingly rare. And when it does crop up, if it crosses a legal line, the system deals with it.

Oddly, that's not how the organizations that produced the report billed it. The headline on the news release says "Pervasive Religious Hostility in U.S. Irrefutable According to New, Extensive Survey." Which got my attention. And then I read this line in the release:

"Liberty Institute and the Family Research Council, two organizations committed to protecting and advancing religious liberty rights in the U.S., have joined to release The Survey of Religious Hostility in America -- a compilation of more than 600 documented incidents of hostility to religion that have occurred in the United States most of them over the last 10 years."

Leave aside their examples that happened before the first Lord of the Rings movie was released. Say all 600 happened in the past decade. That's 60 per year in a nation of 300 million people.

How unusual is that? According to the National Weather Service, about 400 people get struck by lightning every year. So if this catalog is even close to being complete, you are about six times more likely to get zapped by an Act of God than to run into what this report counts as religious hostility.

So let's look at the actual report, shall we? What is the threat?

"[H]ostility against religious liberty has reached an all-time high. America's First Freedom -- the freedom of religion -- is being pushed out of public life, our schools, and even our churches."

With all due respect, horsepucky. I live in a town, for instance, where there are thousands of churches, many reasonably full on Sundays. Prayers are offered before many official meetings hereabouts. The annual and ongoing "See You At The Pole" prayer day at public schools was born here. Private, parochial schools flourish. Christmas displays and Santa Clauses clog our malls annually.

And by the way, religious life in my town is a lot broader than "churches." (To be fair, the report includes a handful of cases involving non-Christians.)

The unconstitutional imposition of religion by government? Not so common, I'm happy to say.

But let's see what this report came up with. Hm. The report says it is "by no means exhaustive." But the news release says it's "extensive." Let's split the difference and say it's as complete as the researchers could make it.

Me, I'm confident that this is a fairly complete list. The Liberty Institute and the Family Research Council are no pikers in identifying what they consider to be threats. Between Mr. Google's free search and various other databases, I can only imagine the researchers pulled out the equivalent of an electron microscope to find every significant example that might bolster their case.

Say they only found half. That still leaves getting hit by lightning three times as common.

Here is their first example:

Salazar v. Buono
Trunk v. City of San Diego
In these cases, the U.S. Court of Appeals for the Ninth Circuit held that two veterans' memorials containing crosses violated the Establishment Clause. Congress saved one of these memorials by transferring the land to private ownership, but the government required that a fence be built around the memorial. The Ninth Circuit held that the other memorial is unconstitutional.

For some reason, the report doesn't give the dates. The first case was decided in 2010, the second in 2011. The issue here was whether an official government memorial that honored only one religion of those followed by our veterans violated the Establishment Clause of the First Amendment. (The one that prohibits laws "respecting an establishment of religion.")

My dad mustered out of WWII a captain. I'm sure he wouldn't have minded a cross on any private or personal memorial one could imagine. I suspect he would have sighed about an enormous cross as the centerpiece of an official memorial, as was the case for both examples cited here.

For one of them, Congress figured out a way to square the circle and satisfy the law while preserving the cross. In the other, the courts have ruled and continue to rule that the law should be obeyed.

This is hostile to religion how?

Let's take the very next example:

Van Orden v. Perry
McCreary County v. ACLU
These cases both involved challenges to Ten Commandments displays, one at the Texas capitol and one in a courthouse in Kentucky. The Supreme Court heard both cases at the same time and held that the Texas display is permissible because there were other, secular monuments around it but the Kentucky display is impermissible because there were insufficient secular displays nearby.

Again, this is an Establishment Clause question. Both examples are from 2005 Supreme Court cases. (Again, the report doesn't give the dates.) In one case, the side of the Liberty Institute and Family Research Council prevailed. In the second, the courts ruled otherwise for a particular legally relevant reason.

Let's spin the wheel and take a random example from deep in the list.

Brooker v. Franks et al., No. 6:06-03432 (W.D. Mo. 2006)
A class assignment at Missouri State University required Emily Brooker to draft and sign a letter in support of same-sex adoptions that would be sent to state legislators. When she refused because of her Christian beliefs, Ms. Brooker was forced to sign a contract stating she would alter her beliefs to align with the social work department's ideological standards. After Ms. Brooker filed suit, the university cleared her record and revoked teaching privileges from the professor who had given the discriminatory assignment.

This is an interesting case. The courts didn't even need to make a ruling for the state university to realize that a huge snafu had taken place. Brooker ended up with $9,000 in cash, two years of fees for degree work toward a Master of Social Work degree and $3,000 per year in living expenses for two years of graduate education. The teacher lost his job.

Shouldn't have happened, obviously. But the wheels of justice turned.

One more example chosen randomly:

Freedom From Religion Foundation Attacks Mother Teresa Stamp
The United States Postal Service (USPS) honored Mother Teresa, a Noble [sic] Peace Prize recipient, with a memorial stamp for her humanitarian relief. The Freedom From Religion Foundation criticized the stamp as a violation of USPS regulations by honoring a religious figure and called on its members to boycott the stamp and begin a letter campaign to expose the "darker side" of Mother Teresa.

Couple of things: First, spellcheck is no replacement for actual editing. Whether or not Mother Teresa was noble, the prize is the "Nobel." And secondly, the First Amendment also protects the right of fringe folk to make their case, whatever that case might be. Even other atheist groups said this protest was out of line. And the stamp was issued on schedule in 2010. No harm, no foul.

Look, it should come as no surprise for organizations as Christian-oriented as the Liberty Institute and Family Research Council that all human institutions are flawed. Some are more flawed than others. So, yes, there will be examples where institutions overstep their bounds in trying to limit individual rights to religious expression.

And by the way, as the report makes unintentionally clear, there are also errors in the other direction, where government-backed institutions illegally support a particular religious point of view.

It's sad when either happens. People are hurt, time is lost, money wasted. In an impossibly perfect world, we wouldn't need to worry about it. But it's a particular glory to the American system that we do an unusually good job of self-correcting, compared with many other systems. Even if each of us may not agree with every decision finally reached.

I don't agree with every umpire's call. But I think Major League Baseball, in the main, does a good job of policing its rules.

When it comes to religious freedom, this report is convincing to me that Americans and our legal umpires are doing a remarkably good job.

Jeffrey Weiss is a RealClearReligion columnist from Dallas, Texas. Follow him on Twitter @JeffreyWeissRCR.

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