Amid the current controversy over Indiana’s religious freedom law, it is important to understand just how important religious freedom has been in America’s legal history. By protecting religious beliefs and the free exercise of religion by its citizens, America has become a diverse society where people function successfully among others with whom we may not agree.
There are literally thousands of federal and state laws in the United States (and many more court precedents) that accommodate religious citizens’ practices and beliefs. In recent decades, this has included the federal Religious Freedom Restoration Act and similar state laws, like Indiana’s new law. The U.S. Supreme Court routinely embraces the constitutionality of such efforts.
And significantly, we don’t just accommodate religious beliefs when it’s convenient. The reason we’ve been successful in celebrating the diversity and tolerance of our country is precisely that we protect religious believers when it is difficult and inconvenient.
For example, when military service was compulsory, religious pacifists sought to be excused from service. Many countries, including England and Germany, refused to accommodate religious objectors because, they reasoned, raising armies to protect one’s national interests is a paramount consideration. Admittedly, it’s easier to have and enforce a one-size-fits-all rule for military service — everyone serves, no exceptions for religion. But is it right?
In America, we’ve determined that religious conscience is of paramount importance. This is why it is protected in the First Amendment, right alongside the freedom of speech and freedom of the press (other freedoms that set us apart as an exceptional nation). So, when it came to mandatory military service, we made an important and conscious choice that, even when it comes to our national security, nobody would be required to violate their religious beliefs.
And so, in the spirit of freedom, tolerance, and diversity, when Congress passed the Selective Draft Act of 1917, we exempted from combat anyone who is a member of “any well-recognized religious sect or organization at present organized and existing whose creed or principles forbid its members to participate in war in any form.” In the Selective Training and Service Act of 1940, Congress expanded this religious protection to include anyone “who, by reason of religious training and belief, is conscientiously opposed to participation to war in any form.”
Most Americans would agree that one of the greatest governmental interests, if not the greatest, is national security. And if we can find a way to protect and respect the freedoms and interests of religious adherents in the midst of such an important interest, we should be able to do the same when any other conflict arises.
This is why our Supreme Court has unequivocally declared that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” In other words, the government should never be able to strong-arm any American to act against his or her own conscience and religious beliefs.
During Prohibition, when the U.S. Constitution banned the “manufacture, sale, or transportation of intoxicating liquors,” Congress made it a point to exempt churches and bodies of faith that used wine for sacramental purposes or religious rites. In other words, churches that used actual wine for Communion were still allowed to exercise their faith. And this permission was granted during a time when banning all forms of alcohol was considered to be in the highest national interest.
If we continue to search the annals of our country’s history, we’ll see that we’ve always made room for the free exercise of religion, especially when it conflicted with very important governmental interests. Whether it pertains to national security, the administration of justice, medical treatment, education, or even pledging allegiance to the flag, we’ve always found a way to make room for everyone.
Today, as religious freedom is discussed and debated in a variety of contexts, let us not forget our history. We’ve protected religion when it’s convenient and when it’s not, and that protection has always been for the betterment of our country.
Austin R. Nimocks is senior counsel with Alliance Defending Freedom, which has provided legal counsel on religious freedom and conscience protection laws to federal and state legislators nationwide, including Indiana and Arkansas. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions for editorials, available at this link.
