Religious Liberty—the Freedom to Rule and the Freedom to be an Individual: The Letter and the Spirit

I note in my constitutional law class that the generation that founded the American Constitution could frequently use the word “liberty” ambiguously.   Sometimes speaking of “liberty” was a way of referring to the sovereignty of the people; their “right” to govern themselves.   Even now when we say we are a “free” people, we often mean that no other nation, force, or individual exercises control over the United States of America.  We are “free” to govern ourselves.  Modern republicans often use freedom the same way, to refer as much to the “liberty” of the collective people of particular states to decide the direction their government will take as to the liberty of individual citizens to decide things in their own lives.  This is why it made perfect sense to Rick Perry and his campaign people to put in an Iowa political commercial the complaint that the federal government had tyrannically robbed Texas of the liberty of self-government when the federal Supreme Court ruled that public schools could not initiate a public prayer at the beginning of every school day.  In his book, Fed Up!:  Our Fight to Save America From Washington (2010), Perry complained that Americans “face unprecedented federal intrusion into numerous facets of our lives,” including “the education of our children.”  (Loc. 22 of 3637)  Hence Perry is an advocate of amending the Constitution to allow school prayer programs.

That Perry was equating freedom with local self-government is confirmed by the Iowa political ad’s choice to underscore the claim that, thanks to federal rule, “our kids can’t openly celebrate Christmas or pray in school.”  The same ad also complained that not only could kids no longer “pray in school,” but now “gays can serve openly in the military.” Some have offered the counter-observation that nothing forbids kids to pray in school—but if local self-rule is the real issue, it hardly matters; local school districts, it is true, are forbidden by federal judicial decisions to institute a daily school prayer.  The real anomaly of the Perry ad is that the complaint that “gays can serve openly in the military” advocates against freedom in both senses.  It was Congress that repealed the don’t ask, don’t tell policy that it had enacted—it would be hard to more clearly manifest the liberty of self-government than to have the representatives of the people legislate the policy preferred by the nation’s people.  There is not even a plausible argument that the identity of those who can serve in the military is a decision to be made by state or local governments or peoples.  And, of course, if there is any thought of referring to, let alone securing, personal liberty, repealing don’t ask, don’t tell was unequivocally the decision that promoted liberty.

If our focus becomes personal liberty, and not collective self-government, the judicial ban on daily school prayer programs, is also the one that most effectively secures liberty. As to personal liberty, Perry’s campaign ad clearly portrays him as a states’ rights advocate who is anything but a libertarian.  If you take seriously the religious pluralism that the religion clauses of the First Amendment were intended to embody, it is hard not to see a program that effectively “drafts” Buddhists, Hindus, and atheists to join in a daily prayer ritual as the one that advances the heritage of religious freedom.  This suggests that it is odd, indeed, to have Perry refer to “Obama’s war on religion,” and to speak of “liberal attacks on our religious heritage.” If it is the heritage of religious freedom that we should be proud of—a heritage often enough honored in the breach—respecting the private right to decide on whether to pray in school preserves our religious heritage rather than constituting a “war on religion.”

More recent developments in Texas simply confirm that Perry’s attitude is the prevailing one there.  This past week saw Texas put on sale a license plate that says, “One State Under God.”  The plate has generated controversy, as some contend that state governments should not “be endorsing religion.” The group known as the Texas Freedom Network suggested that it has “become pretty clear that our governor is dismissive of religious beliefs other than his own.”  It is quite clear that Christian groups that lent strong support to Perry’s presidential campaign have a serious problem with Governor Romney’s Mormon faith, with one article stating they considered it a “social scourge.” The Supreme Court’s standards for determining when and whether government use of religious symbolic expression violates the Establishment Clause is sufficiently jumbled that there are plausible arguments in both directions.  So the “letter of the law,” at least as currently established, is not crystal clear.  But if “religious freedom” is what we’re really talking about, and we are speaking of the rights and interests of individuals—rather than the collective right of self-government—it is difficult to see how the individual right of religious freedom is enhanced by this Texas practice and policy.  The spirit of the religion clauses may be clearer than the letter, and if there is a “war on religion” it would appear to be fostered by a single strand of religionists more than advocates of secularism.

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