By Rick Plasterer, Juicy Ecumenism
Traditional Christians do not need to despair about religious liberty or liberty of conscience in the future, but for religious freedom to prevail in the future will require a firm grasp of the legal doctrines available from court decisions, the perseverance of superior lawyers, and when possible, legislative action. This was the clear message of Kenneth Starr, President and Chancellor of Baylor University, former federal judge, and commentator on contemporary religious freedom at a Faith and Law forum lecture given at the U.S. Capitol building in Washington, D.C. on February 3.
Starr began by referring to the apostle Barnabas, the early fellow missionary of Paul. After serving with Paul, he went his own way in a disagreement, but his name, meaning “Son of Encouragement” could serve as a model for contemporary Christians in their struggle for religious liberty, Starr said. He noted that the Bill of Rights begins with the guarantee of no establishment of religion and the free exercise of religion, and after promulgating those “two values, the text then moves on.” The guarantees of freedom of speech, freedom of the press, freedom of assembly, freedom from unreasonable searches and seizures, etc., follow these first two freedoms, Starr pointed out. It is thus foundational to other freedoms and should inform those subsequent freedoms he seemed to indicate. Although the Constitution is surely an Enlightenment document, “the first freedoms are those which bring you to faith” Starr said. Similarly, he pointed out that the Northwest Ordinance, which provided for the settlement of the American Midwest east of the Mississippi river, and which was enacted about the time of the Bill of Rights, stated that “religion, morality, and knowledge … shall forever be encouraged,” and that these are “necessary” (not “helpful,” as Starr pointed out) “to good government and the happiness of mankind.” This is far different from today’s “strict separation” of church and state.
The intense hostility of secularists makes such religious ideals difficult to realize in contemporary American society, but Starr referred to victories for religious freedom in recent decades to prove that such victories are possible today. Lower federal court decisions had, for instance, said that religious clubs could not meet in public schools, while non-religious student groups, such as a chess club, could. Congress acted to ensure that religious groups had equal access through the Equal Access Act. Challenged in the courts, the challenge to the Equal Access Act lost in the Supreme Court 9 to 0, with only Justice John Paul Stevens disagreeing with the reasoning, but not the decision. Other victories for religious freedom were the Sherbert vs. Verner decision (1963) and Wisconsin vs. Yoder (1972). The first concerned a Seventh Day Adventist required by her employer to work on Saturday. Fired because she refused, she was unable to get unemployment benefits. “Free exercise of religion” means that her unemployment claim should not have been denied, the Supreme Court held. Basically the decision declared that state action could only “burden” (override) religious liberty if the law had a “compelling state interest” as its objective, and provided for its achievement by restricting religious liberty using the “least restrictive” means. The Yoder decision said that Amish school children could not be required to attend public or private school beyond the 8th grade, since their parents free exercise of religion mandated that parents direct the education of their children. This decision is the constitutional basis for homeschooling.