VI. How can we protect religious liberty?
Preservation of religious liberty is necessary to preserve our free republic. We must recognize the current war on religious liberty and take action to preserve it. We must act in four spheres.
First, in our personal lives, we must be committed to the Judeo- Christian values that made this country great. We must put these principles into practice in our own private lives so that our conduct can be a witness for these values. Only by transforming ourselves can we transform the world beyond ourselves.(150) We must remember the two greatest commandments. First, we must love God with all our hearts, all our souls, and all our minds. Second, we must love our neighbors as we love ourselves.(151) We must also remember Christ’s command to do unto others as we would have them do unto us.(152) This requires that we extend to others the same liberties we claim for ourselves.
Second, we must place greater emphasis on the moral education and the development of political virtue in our young people. As Attorney General Barr recently observed, education is not vocational training. It is leading our children to the recognition that there is truth. It is guiding our children to develop the faculties to discern and love the truth. It is helping our children to develop the discipline to live by the truth.(153)
Third, we must resist efforts by Progressives to drive religious viewpoints from the public square. As Thomas Jefferson said, all truth is great, and truth has nothing to fear from the contest of ideas. Errors are not dangerous when men are free to contradict them, and truth will prevail so long as it is publicly proclaimed. We must, however, be willing and able advocates of the truth in the public square.
Fourth, we must become courageous and able participants in the struggle being waged against religious liberty in the legal arena. The Becket Fund for Religious Liberty, the Alliance Defending Freedom, and the First Liberty Institute provide excellent legal representation, at no charge, to people of all faiths. We must also be mindful that when we find ourselves in the midst of wolves, we need to be as innocent as doves but as shrewd as serpents.(154)
Six legal strategies have proven their ability to protect religious liberty. First, the First Amendment requires federal and state governments to accommodate the religious practices of individuals. Governments must also recognize the right of individuals to avoid practices that they consider contrary to their faith.(155)
Second, government may not unduly burden the free exercise of religion by individuals, businesses, or religious organizations, including educational institutions. As explained above, the U.S. Supreme Court removed constitutional strict scrutiny protection from religious liberty in Employment Division v. Smith, 494 U.S. 872 (1990). Congress, however, established a statutory strict scrutiny protection for religious liberty the following year by passing the Religious Freedom Restoration Act of 1993 (RFRA).(156) RFRA provides that “Government shall not substantially burden a person’s free exercise of religion,” unless it “is in furtherance of a compelling governmental interest” and is the “least restrictive means of furthering that compelling governmental interest.”(157)
Third, government cannot engage in “viewpoint discrimination” against Christian activities. The First Amendment requires that federal, state, and local governments must afford the same treatment to religious activities as they afford to secular activities.
If a school board permits social, civic, and recreational uses of its school facilities outside of school hours, it must also permit religious groups equal use of those facilities. Once a government establishes an open forum, it must make that forum available to all.(158)
Fourth, government cannot limit the First Amendment free speech rights of Christians. Teachers and students do not shed their right to free speech at the schoolhouse gate.159 This includes the right to voluntary prayer, “in the cafeteria, or on the playing field, or on the campus.” School officials have no authority to approve, edit or censor student speech because it contains a religious component.(160) Government cannot prohibit religious speech in public forums, including streets and sidewalks.(161)
Fifth, Americans are free to honor traditions which have both historical and religious value. Americans are free to engage in public prayer in public proceedings, including city councils162 and state legislatures.(163) Americans may display the Ten Commandments(164) and war memorials with religious symbols on public lands, and maintain them at public expense.(165)
Sixth, the First Amendment guarantees the right of religious organizations and schools to choose their own ministers and teachers without government interference. Federal laws and regulations, such as the Americans with Disabilities Act, cannot govern the selection of religious leaders by religious organizations.(166)