September 7, 2011

Emergence as a Constitutional Principle

Forged in the Crucible of Persecution

Colonial Heroes Protecting Rights of Conscience:• Roger Williams

Discovery: “Soul Freedom” is for everyone• William Penn

It’s also good for business • Baptist Dissenters

Jailed for having their own church weddings

• Quaker Mary Dyer Hanged in Boston Common for Proselytizing,

1660

Religious Freedomin the American Constitution

Bill of Rights: “First Freedom” Innovative break from 13 centuries of

state-enforced religion Propelled thriving civil society Shaped culture of inter-religious

amity Model for international law and

norms

Timeless Ontological InsightsWho are we?

Innate quest for meaning Experience of transcendent obligations “Conscience has rights because it has

duties.” Denial of conscience felt as profound

violation of dignity Natural condition of faith is pluralism.

• Quran: “So vie one with another in Virtue.”

Timeless Political Insights Repressing religion ignites strife

• “God’s Century” - Toft, Philpott, Shah

Unless checked, state authorities WILL trample religious rights

Protecting religious liberty fosters citizen loyalty and thriving peaceful societies

Madison’s First Amendment Vision

Rights of conscience and religion never surrendered• “…duty towards the creator is precedent, both

in order of time and in degree of obligation, to the claims of civil society.” Thus “no man’s right is abridged by the Institution of Civil Society…”

Measure of free society• Extent to which people are not forced to

choose between transcendent obligations and citizenship privileges

First Amendment Heritage

Imperfect• Did not originally apply to the states• Inconsistent interpretation by courts

But Powerful Model• Has given leverage to religious minorities• Has ignited popular constitutionalism

Congressional and state legislative battles enhance protections when Court retreats

Needs reaffirmation/renewal in every age

Global Impact

American Model as a Global Influence

Experiment can work: Religion and Liberty can march together• “In France I had almost always seen the spirit of religion

and the spirit of freedom pursuing courses diametrically opposed to each other; but in America I found that they were intimately united, and that they reigned in common over the same country,”

-de Tocqueville

Churches can thrive without state support Protecting religious rights beneficial Inspiring to scholars and global activists

American Experience as a Global Influence

Catholic Church Transformation• Catholic immigrants anchored in pluralist

religious society• Initial Church condemnation of “Americanism”• John Courtney Murray’s invitation to Vatican II

• Dignitatis Humanae: Declaration on Religious Freedom

• Propelled wave of global democratization

American Experienceas a Global Influence, con’t

U.S. Muslim Immigrants • Thriving community

• Civically engaged

• Shunning militancy

• Developing pluralist Islamictheologies

• Championing rights abroadZainab Al-Suwaij, AIC

“I’m Proud to be a Muslim from Muskogee”

Nashala Hearn, age 12, suspended for wearing hijab in Benjamin Franklin School, Muskogee, OK in 2003

Represented by evangelical legal advocacy groups and backed by Bush Administration Justice Department

School changes policy, everybody wins

American Leadershipas a Global Influence

Eleanor Roosevelt

and Universal Declaration of Human Rights,1948

Everyone has the right to freedom of thought, conscience, and religion. This right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.”

American Leadership Growsas a Global Influence

Helsinki Accords leverage space for religious dissidents behind Iron Curtain, 1970s

International Religious Freedom Act, 1998 • Makes promotion of religious Freedom a “Basic Aim” of

American foreign policy

Religious Liberty Advocate Cole Durham, Central European University,

Budapest, Hungary

American Leadership Grows, con’t

Booming Advocacy Infrastructure• Exiles, religious

dissidents, human rights organizations, think tanks, international lawyers, and scholars

U.S. Role in Historic Convergence Unprecedented global documentary record - State

Department Annual Reports

Innovative research techniques measure “restrictions on religion” for every country on earth - Pew Forum on Religion and Public Life

Sophisticated quantitative methods show contribution of religious freedom to democracy, civil liberties, inter-religious peace, economic development, women’s status, and regional stability - Grim and Finke

Empirical validation of timeless ideal

Troubles in the Cradle of Religious Liberty

Challenges to Religious Exercise

Eroding Conscience Protections• Long tradition in American law and politics• Looming threat to health care providers

Reduced autonomy of religious institutions• Adoption agencies shuttered in Massachusetts

and DC• Religious foster care threatened in Illinois• Hiring rights challenged in Michigan • Faith affirmation for student law club struck

down in California

Challenges to Religious Exercise, con’t

Trumped by other values

• Christian Science and the Case of Brutalist architecture

• Maximizing tax revenues in Leon Texas

The Reason: Amnesia of Elites

If religion treated as trivial, then regulatory state will intrude into Madison’s zone of liberty

Some statist conservatives dismiss conscience claims and religious accommodations – Justice Scalia

Some aggressive liberals deploy equality laws against believers and religious bodies

Some hostile secularists invoke misunderstandings of the Establishment Clause to restrict religious exercise

Global Threat and Irony

Global Threat

Undermines the power of this constitutional principle, which has been a global agent of expanding liberty and democratization

• Harsh Indonesia Blasphemy law sold to avoid “American secularization”

• Accused of hypocrisy when we challenge infringements on religious rights abroad

Global Irony in the Making

International legal norms, inspired and led by the U.S., starting to be invoked to challenge these policy trends

Idealism of global struggles may shame U.S. policymakers• Imagine the headline: “Religious Restriction

Score Increases in U.S.”

Global Irony in the Making, con’t

Global campaigns for religious autonomy and conscience rights will inspire domestic activists

Historical precedent: Jehovah’s Witnesses Gobitas children were buoyed by Roosevelt’s Four Freedoms speech.

Hope for Preserving An Essential Constitutional Principle

Global struggles and popular constitutionalism can reclaim what the courts and the regulatory state have forgotten

Example of American Sikhs

• Adherents of a faith born in 16th Century Punjab• Intensely committed to religious freedom• Inspired by the American promise: “Here you

can be who you are”

A Portrait of the American Constitutional Heritage in

Religious Freedom

Signing ceremony ending Oregon’s 1923 KKK-backed law against religious attire in public schools, April 1, 2010.