Republicans get American religious history wrong

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Religious Freedom Stamp

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Religious Freedom Stamp

Religious Freedom Stamp

Religious Freedom Stamp

Running for the Republican presidential nomination three years ago, Newt Gingrich called the Affordable Care Act’s contraception mandate “the most outrageous assault on religious freedom in American history,” adding, “Every time you turn around the secular government is shrinking the rights of religious institutions in America.”

As Supreme Court prepares to hear oral arguments tomorrow on whether there is a constitutional right to same-sex marriage, this claim of unprecedented assault on religion in America has become GOP boilerplate.

Writing in the New York Times last week, Louisiana governor Bobby Jindal put it this way:

Our country was founded on the principle of religious liberty, enshrined in the Bill of Rights. Why shouldn’t an individual or business have the right to cite, in a court proceeding, religious liberty as a reason for not participating in a same-sex marriage ceremony that violates a sincerely held religious belief?

On Saturday, Sen. Ted Cruz (R-TX) denounced “a liberal fascism that is going after Christian believers” in a speech to the Iowa Faith and Freedom Coalition. “Today’s Democratic Party has become so radicalized for legalizing gay marriage in all 50 states that there is no longer any room for religious liberty,” he said.

The GOP would do well to bone up on its history. And I’m not only referring to laws directed against Catholics and Mormons in the later 19th century. From the beginning of the Republic, the disestablishment of religion led to legal regimes throughout the country that involved a high degree of government control over what religious bodies could do.

In an examination of laws and court decisions largely overlooked by other scholars, University of Pennsylvania law professor Sarah Barringer Gordon has discovered up to the Civil War states used their incorporation statutes to strictly limit how much property religious institutions could own. In the South, courts stepped in to prevent anti-slavery churches from buying slaves in order to free them.

States also set up trustee governance that took control out of the hands of the clergy. “By passing general incorporation statutes for religious societies, states forcibly democratized and laicized church governance,” Gordon wrote in a University of Pennsylvania Law Review article last year. That went even for strictly hierarchical bodies like the Catholic Church.

In more recent times, courts and legislatures have taken a dim view of the assertion of religious rights that directly affect the conduct of citizens outside the faith community — such as claims for exemption from the ACA’s contraception mandate or from anti-discrimination laws when asked to provide goods or services for same-sex weddings. Discussing these “complicity-based conscience claims” in a recent Yale Law Journal article, Douglas NeJaime and Reva Segal, law professors at U.C. Irvine and Yale respectively, point out: “In adjudicated religious liberties law, when accommodation has threatened to impose significant burdens on other citizens, courts have repeatedly rejected the exemption claims.”

What we are seeing in Republican culture war rhetoric is a spiritual libertarianism that asserts a general right to ignore laws that one objects to on religious grounds, no matter what the effect on others. This not only ignores the actual history of law governing religion in America but it’s asking for trouble.

  • Larry

    Ben From Oakland pretty much has this crowd clamoring for “religious freedom” down pat in a prior thread

    All that these calls for “religious freedom” mean are:

    1) Religious exceptionalism. We don’t have to abide by any laws which mean we’re not special because we are bible believing Christians.

    2) conservative Christian exceptionalism: we don’t have to extend the same courtesy to gay people that we routinely extend to all of the people we believe are going to burn in hell forever. We must allow discrimination on the basis of religious belief in THIS ONE INSTANCE ONLY…

    This isn’t about faith. It’s about religious belief used as a cover for an ancient and vicious prejudice.

  • Chaplain Martin

    I agree it is often not about faith. Maybe if the laws were against Christians, (I am a Christian by faith) we would grow like the early church when culture and law were much against us.

  • Josh Decuir

    Yeah, because those culture warriors on the other side are always careful & accurate in their pronouncements (I look forward to Pres. Clinton lecturing Pope Franics of letting go of his deeply-held religious belief in the dignity of the unborn). It would at least be nice of you to pretend every once in a while to think there is another point of view worthy of a hearing.

  • Chaplain Martin

    Actually Mark, the Bill of Rights, did not apply to the various States until after the passage of the 14th amendment which the federal courts began to apply in certain cases. Beginning in the 1920’s through the 1940’s the federal Bill of Rights began to apply more and more to the states. Before that the states had mostly enacted there own Bill of Rights, many were lacking the wording of the Federal Bill of Rights.

    You may remember the letter Thomas Jefferson sent to the Danville Baptist Association. He commiserated with their lack of religious freedom. As president he had no authority over the states in regard to the First Amendment. It was not until 1838 that Connecticut allow religious freedom.

    As a devout but flawed Christian, my opinion is one of the worst thing that has happened to Christianity in the United States, is the hijacking of the Church by the Republicans. Depending on a politician to endorse ones faith for creditably is really sad, “faith alone” is forgotten.

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