Religious Freedom today.
Random musings and rants about the current conundrum pased by an activist judiciary and religious freedom
I heard it said just the other day that none of us had ever faced
real religious persecution. Well, I suspect we'd better get ready
for it.
I would have to point out that while religious persecution is
not yet matter of policy, individual Christian testimony reveals
that it is not the case that persecution does not exist here.
Persecutions are not unheard of in this country, and they are
not so different from how persecution has taken root worldwide.
Christians are easy prey if they are seen to upset the prevailing
status quo. Persecution is not perceived to exist in a grand scale
only because most Christians remain quiet and do not rock the
boat. At this point in time, it is not our Christianity specifically,
but anyone who takes any sort of moral stance based on a guiding
moral principle is seen as bigoted and intolerant. Yet this is
not the biggest and most immediate danger we face today. What
is different about the day's stage that differeentiates the situation
from that our predecesors faced is an official and legal all out
attack on Christian religious freedom by an activist Judiciary.
Conservative Supreme Court justice Antonin Scalia in 1998 argued in an unpublished speech at Georgetown University that moral law had no place in formulating court opinions. In a democracy, the majority rules, "and the minority loses except to the degree that the majority has agreed to accord the majority rights." This literalist approach to legal theory has helped erase a Christian voice in law and policy. In 1990 Scalia used this philosophy to abrogate religious freedom in his majority writings for the Smith vs. Employment Division case that upheld an Oregon law that banned sacramental use of peyote by Native Americans.
When the Religious Freedom Restoration Act was legislated into existence in 1993, it was partly as an attempt to restore the historic test for religious liberties, and partly in response to the tendencies of the court to demand that people must write morality into the civil law through the legislative means at their disposal. Then in 1997 the Supreme Court struck THAT legislation down in the case "Flores versus Boerne". The effect of Boerne is to prevent the majority from enacting moral convictions about religious liberty. The logicus terminus of the decision is that we must conclude that any law that parallels a biblical teaching is considered invalid no matter how beneficial. Charles Colson has called the overturning of the RFRA (which was originally passed with unanimous support) the greatest blow to religious freedom in this century.
In declaring the RFRA unconstitutional, the Court made a radical change in what John Locke called the "social contract". The ruling guts the first amendment, telling Congress in effect- you cannot write this kind of law- we decide what is constitutional, not the Congress. Most Americans, the press and even most congressmen have accepted this. This is not the way it used to be!
Jefferson and Hamilton were terrified at the possibility of a judicial oligarchy taking away self government. It was in 1803 in Marbury vs. Madison that the Court took on this power- Jefferson opposed the ruling. Andrew Jackson just decided to ignore a ruling the court enacted against him. In the Dred Scott decision, Lincoln pointedly did the same thing. It has only been in recent years that the accepted procedure is to let the Court have the final say on constitutional issues. The Court in effect has declared that the Congress cannot decide what the First Amendment means.
In 1992, Justice Kennedy wrote in Lee vs. Wiseman that it is impermissible not only for religion to inform the law but also for any "ethic and morality which transcends human invention" to do so. In Romer vs. Evans, he decreed that a law banning special civil rights for sexual orientation implied an "animus" against homosexuals. Therefore any law informed by a religious principle or transcendent morality constitutes an ugly prejudice and must be abrogated. More on this landmark case follows below.
Blackstone wrote, "The law of nature dictated by God Himself
is binding in all countries at all times." This is what has
drastically changed. Scalia says the people must encode morality
legislatively and then the court turns around and strikes down
such legislation. Justice Brennan says that Christian efforts
to shape a just social order is a "sham. "
If an activist judiciary is dedicated to the proposition that
moral law has no place in formulating court opinions, is there
any hope for a legislative solution to prevail?
This informed my second question of the and A session- Do you
think there is any progress in the years since the RFRA strikedown
towards reviving a comprehensive and coherent philosophy of the
law that articulates the role of religious or moral law in the
public arena- or is the Christian community still looking on individual
issues of public policy? What are the non negotiable issues the
Christian community must become activist over with co- belligerents?
Romer vs. Evans, 1996 struck down Colorado's attempt to overturn anti discrimination legislation based on so called sexual discrimination. This has been called the unraveling of Lex Rex in America. Any objective standard may now be considered prejudicial. Justice Kennedy said that Colorado voters were motivated by their religious convictions and therefore the law they ratified was nullified. Romer vs. Evans makes it impossible for the Supreme NOT to approve same sex marriages if you follow it to the logical conclusion. If you take with it Compassion in Dying v. Washington and Casey v. Planned Parenthood, the slippery slope becomes an avalanche of rulings that in the end will give freedoms to all types of moral perversions, while curtailing moral imperatives. The legal reasoning behind these rulings is the clear and present danger, for it represents the CONSERVATIVE opinion! Court decisions like this have ended the culture wars in effect by judicial fiat and we lose. No other case can be won in the court with Romer v. Evans in effect. The future of the battle (which in the end is the Lord's) is in question in this present reality. One hope is a constitutional amendment that would define marriage as being heterosexual in nature.
On one last note I would argue that another reality that is drastically different today is the horror of the level of Christian persecution worldwide. Christian slavery in the Sudan, persecution in China and elsewhere is at a proportion that is unparalleled in history and American Christians are all but oblivious to it. In Saudi Arabia, Vietnam, Iran, Pakistan, Ethiopia, Cuba and elsewhere, Christians are being imprisoned, tortured and executed. The U. S. Government has helped repatriate some of the refugees into a situation that will most certainly spell their doom unless the Lord intervenes. Michael Horowitz, a Jew, has become a leading advocate for Christian rights worldwide. A session on C-Span a year or so ago highlighted these issues for me after hearing from Horowitz, William Bennett, Nina Shea and Richard John Neuhaus and others. After reading Shea's In the Lion's Den, I was shocked and appalled at my own lack of knowledge. Hindu fundamentalism is a new purveyor of persecution. More Christians have died for their faith in this century than in the other nineteen centuries combined. Another paper could be devoted to the subject but I felt compelled to include it here as well.