by Andrew Rock
September 3, 2019
On the heels of the Trump administration’s successful second annual Ministerial to Advance Religious Freedom hosted at the State Department, and in the throes of planning for the upcoming UN General Assembly later this month in New York City, there is ample opportunity to consider how the United States might engage to promote religious freedom abroad. As it does so, perennial concerns about engaging anything to do with “religion” are sure to arise once again.
Religious freedom is a well-established facet of international human rights law. Yet, many U.S. government officials are hesitant to engage on the issue for fear of violating the Establishment Clause of the First Amendment. Not only are their fears groundless, but our failure to engage religion as a serious topic when over 80 percent of the world is religious (a percentage which is growing) seriously hampers our foreign policy efforts. If we don’t understand the world, how can we engage with it?
On the contrary, the United States’ promotion of religious liberty abroad does not violate the Establishment Clause. It is well within the law, and an important foreign policy priority which should be advanced through the various measures, including training American diplomats to address religious discrimination as they serve on the frontline of U.S. foreign policy.
The Establishment Clause does prohibit the government from creating an “establishment of religion.” The many court decisions surrounding it are complex and seemingly contradictory. However, a look at relevant legal decisions shows that promoting religious liberty abroad is perfectly acceptable under the Establishment Clause.
The only court case directly addressing how the Establishment Clause applies abroad is a 1991 case from the U.S. Court of Appeals for the Second Circuit, Lamont v. Woods. In Lamont, the court found that sending money to a religious school overseas did not violate the Establishment Clause, even if sending money to a similar school within the United States would. The court reasoned that although regular Establishment Clause doctrines apply abroad, there could be more flexibility overseas in order to accommodate a significant government interest.
Religious freedom abroad is in America’s national interest. Research shows that robust religious freedom protections allow countries to thrive economically. Religious freedom also mitigates regional security threats and is an essential aspect of a secure and stable society.
Religious liberty is also a key component of international human rights law. It is ensconced in documents such as the United Nations’ Universal Declaration of Human Rights, and treaties like the International Covenant on Civil and Political Rights. The United States specifically declared its interest in promoting religious liberty worldwide in the International Religious Freedom Act of 1998. This means that promoting religious freedom is a valid secular interest of the United States government. Thus, it is not a violation of the Establishment Clause to train diplomats to engage in religious liberty issues. Rather, it is an important way that the United States can advance its foreign policy interests, and promote human rights abroad, in accordance with its long-stated interest in doing so.
Thus, promoting religious liberty abroad is a legitimate government goal that is well rooted in First Amendment precedent. The United States can train its diplomats in religious freedom issues without running afoul of the Establishment Clause. Just this year, the State Department and USAID both introduced mandatory religious freedom training for Foreign Service Officers. As a part of this effort, they will be taught to cooperate with faith leaders from diverse communities and promote religious freedom in the context in which they serve. This is an important step in fully integrating international religious freedom into U.S. foreign policy. Such training will give American diplomats the tools they need to advance our foreign policy and engage with some of the most pressing human rights issues in the world today—which are completely legitimate, constitutional, and necessary governmental objectives.
Andrew Rock is a law student at the University of Mississippi School of Law, and a former intern at Family Research Council.