Author archives: Family Research Council

Apostasy, Blasphemy, and Anti-Conversion Laws Are Violating Religious Freedom

by Family Research Council

May 2, 2019

There is unprecedented religious persecution around the globe. In recent years, the Pew Research Center has found increasing governmental and social hostility toward religious believers worldwide. For the last ten years, Christians have been harassed in more countries, including the United States, than any other religious group, and in 2016, one or more religious groups were harassed in 187 countries globally.

While the specific threats to religious freedom vary in type and intensity, one common source is the legal and cultural support for apostasy, blasphemy, and/or anti-conversion laws, which often threaten the freedom to choose and/or change one’s faith.

  • Apostasy laws punish people who “apostasize” and convert away from Islam. Across much of the Muslim world, apostasy laws—backed by social pressure—are used to deter apostasy and sometimes punish even allegations of the crime. These laws prevent Muslims from freely choosing their faith— whether Christianity or anything else.
  • Blasphemy laws generally prohibit insults to religion and are the most widespread of these three types of laws. In many places, while still on the books, such laws are no longer enforced or even used. But in other places, again in many Muslim majority countries, they are often abused when allegations of blasphemy are made against religious minorities—often with no evidence—to settle unrelated disputes and vendettas.
  • Anti-conversion laws, quite simply, prohibit people from converting to another religion. Primarily in place in parts of the Hindu and Buddhist world, anti-conversion laws are used by governments to maintain a majority of the population within their preferred religion.

While threats to religious freedom arise from other sources, these three types of laws and the cultural support behind them are major threats to the freedom to choose one’s faith—and thus to religious freedom worldwide.

Punishment for those convicted of violating such laws can include marriage annulment, property confiscation, prison sentences, or death sentences. A number of countries can impose the death penalty for violations of such laws, including: Afghanistan, Brunei, Iran, Malaysia (in certain states), Maldives, Mauritania, Nigeria, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, the United Arab Emirates, and Yemen.

Additionally, a mere allegation of a violation often results in intense social hostility from one’s community and family members, who retaliate with anything from slight harassment all the way up to violence resulting in death.

Drafted out of the ashes of the Holocaust, the Universal Declaration of Human Rights (UDHR) proclaims in Article 18 that “[e]veryone 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” (emphasis added). The laws listed and described here, and the social acceptance behind them, are a direct threat to religious freedom as articulated in the UDHR.

FRC’s new publication Apostasy, Blasphemy, and Anti-Conversion Laws is a list of countries that have apostasy, blasphemy, and/or anti-conversion laws on the books, though not all such laws are still actively used. Moreover, some are not likely to be used or are effectively nullified by other legal measures or constitutional rights which take precedence. However, for purposes of understanding where these laws have been or are in place, they have been left in this publication.

Examples of enforcement and cultural impact are provided for some of the countries where these laws are still enforced or have influence. When we understand how these laws work, and how they serve as obstacles to religious freedom around the globe, we can better advocate for the freedom of all people worldwide.

Read the full report here.

Also, don’t miss a discussion on this new report with FRC President Tony Perkins and Travis Weber, the Director of FRC’s Center for Religious Liberty.

How to Protect Religious Minorities in the Public Square (Part 5 of 5)

by Family Research Council

March 28, 2019

Read Parts 1, 2, 3, and 4

Religious minorities, like all Americans, want the law to protect their right to the free exercise of religious beliefs in the public square. But the Lemon test and its related cases and doctrines have led to the scrubbing of religious practice from the public square and do not adequately protect them.

Instead, an Establishment Clause doctrine that, in Thomas Jefferson’s words, reflects the clause’s meaning at the “time when the Constitution was adopted” and “recollect[s] the spirit manifested in the debates” benefits everyone. This is the originalist approach. It ensures judicial objectivity and empowers the political branches to accommodate religious minorities.

Critics of the originalist approach argue that the Lemon test and related cases should stay in place. Yet they shouldn’t, for they are not faithful to the Constitution and fail to protect religious liberty, including for religious minorities. Moreover, the cases we have discussed and the laws and executive action we have highlighted show that the courts should not be the first stop in protecting religious freedom. In fact, they should be the last.

A historical approach for the courts and a reliance on the flexibility and responsiveness of the political branches is the best formula for a robust protection of religion—all religions—in the public square.

This blog series is based on an article in the Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”

The Political Branches Are Better Equipped to Protect Minority Religions (Part 4 of 5)

by Family Research Council

March 27, 2019

Read Parts 1, 2, and 3

The political branches have demonstrated that they are better equipped to protect religious minority rights and respond to America’s increasingly pluralistic society. In light of the court decisions discussed earlier, consider the following:

  • The Religious Freedom Restoration Act, signed into law by President Bill Clinton in 1993, created “very broad protection for religious liberty.” It received unanimous support in the U.S. House of Representatives and near-unanimous support in the U.S. Senate. It applies to all sincerely held religious beliefs. It came after the Supreme Court ruled against a Native American’s right to exercise his religious beliefs.
  • The Army guaranteed strong protection for religious practices, specifically the practices of observant Sikhs, through Army Directive 2017-03. It directs “Army uniform and grooming policy to provide wear and appearance standards for the most commonly requested religious accommodations.”
  • The Department of Veterans Affairs, recognizing the religious diversity of its servicemembers, has funeral guidelines to honor each fallen soldier’s religious convictions.
  • Based on Title VII of the Civil Rights Act of 1964, the Supreme Court upheld a Muslim teenage girl’s right to wear a hijab—a headscarf worn for religious reasons—without discrimination in the hiring process.
  • The Department of Defense issued Instruction 1300.17(4)(a), which states that “[t]he DOD places a high value on the rights of members of the Military Services to observe the tenets of their respective religions.” The Instruction directs that “[r]equests for religious accommodation will be resolved in a timely manner and will be approved,” so long as they do not “adversely affect mission accomplishment.”
  • Congress passed the National Defense Authorization Acts for fiscal years 2013 and 2014, which provides for the “[e]nhancement” and “protection of rights of conscience.”
  • The Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 permits the placement of commemorative monuments in memory of “service in the Armed Forces” in Arlington National Cemetery, and it does not prohibit the inclusion of religious symbols on those monuments.
  • In 2011, the executive branch accommodated Amish religious beliefs regarding the issuance of Social Security numbers.
  • Federal law allows religious objectors to Social Security taxes—notably including the Amish, one of whom lost a Free Exercise Clause challenge to such taxes in 1982—to apply for exemptions for themselves and their employees.

Some argue that an originalist approach would allow a government to “endorse its preferred religious teachings and be candid about what it was doing.” Others argue that an originalist approach would not “address the danger that the majority will, through government endorsements of its own faith, marginalize minority groups.”

The facts do not bear this out. Moreover, as Establishment Clause expert Professor Michael McConnell states, “the Court’s intervention over the last forty years has made things worse, not better.” Of course, courts have an important role in protecting religious minorities. But as Professor Hillel Y. Levin argues, the need for judicial intervention is the exception and not the rule.

No government institution—including the judiciary—can perfectly protect against the human rivalry and selfishness that critics fear would take hold under an originalist approach. But as a matter of structure, the political branches have greater capacity to protect the rights of religious minorities and to respond to bad policy.

This blog series is based on an article in the Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”

An Originalist Approach Protects Religion in the Public Square (Part 3 of 5)

by Family Research Council

March 26, 2019

Read Parts 1 and 2

The answer to confusion over the Establishment Clause is an originalist understanding of the Constitution. This approach includes analyzing historical practices at the time of the founding and the ratification of the First Amendment. The Court has increasingly incorporated this reasoning in its decisions.

The benefit of an originalist understanding is, as one scholar notes, that “the judge tries to discover not what the text ought to mean but what it did mean to those who wrote the words and, more importantly, to those who voted for those words to become law.”

When we apply this reasoning, we find that government actions involving religious displays or practices are often constitutional. As one court of appeals judge observed, “There is, put simply, lots of history underlying the practice of placing and maintaining crosses on public land . . .” Though the judge spoke of crosses, a court applying a historical interpretation of the Establishment Clause would likely uphold displays inspired by minority religions, too.

Some argue that this would introduce a “narrower standard.” This is a problem because focusing “only on coercion would open the door to sectarian endorsements that will aggravate religious tensions and needlessly divide Americans.”

But an originalist approach sets clearer boundaries for which religious displays or practices are acceptable. This is fairer and more predictable than current law. It is difficult to say exactly how many more religious displays would be considered acceptable under an originalist interpretation, if applied consistently. But recent cases indicate that principled boundaries would be no less helpful to religious minorities than to members of majority faiths.

In Town of Greece v. Galloway (2014), in which the Court adopted an original understanding of the Establishment Clause with respect to legislative prayer, the Court said it was “virtually inconceivable that the First Congress, having appointed chaplains whose responsibilities prominently included the delivery of prayers at the beginning of each daily session, thought that this practice was inconsistent with the Establishment Clause.” As American society has grown more religiously diverse, figures including the Dalai Lama, Rabbi Joshua Gruenberg, Satguru Bodhinatha Veylanswami, and Imam Nayyar Imam have opened legislative sessions with statements expressly declaring their deeply held religious beliefs. As the Court said, Congress “acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds.”

Under Lemon and succeeding tests, courts often proscribe government support of an action or display simply because it is sectarian. But the purpose of the First Amendment was never to eviscerate religion from the public square. An originalist interpretation is the right approach to Establishment Clause challenges.

Applying an originalist approach likely means that the courts will have less say over whether a religious display can appear on public property. But this is an appropriate allocation of power, and our next post explains why.

This blog series is based on an article in the Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”

The Separation Between Church and State Does Not Protect Minority Religions (Part 2 of 5)

by Family Research Council

March 25, 2019

Read Part 1

Many years before courts began interpreting the Establishment Clause, Alexander Hamilton expressed his thoughts on the interpretation of the Constitution in a letter to George Washington:

[W]hatever may have been the intention of the framers of a constitution or of a law, that intention is to be sought for in the instrument itself, according to the usual and established rules of construction.

Unfortunately, when it comes to interpreting the Establishment Clause today, Hamilton’s centuries-old guidance is too often left by the wayside. Beginning in the mid-20th century, the Supreme Court turned to sources besides the framers’ intent in rendering its decisions about the Establishment Clause. This is the era that generated the doctrine of the so-called “separation between church and state.”

This doctrine underlies the decision of Lemon v. Kurtzman (1971). In that case, the Court said that a government action is unconstitutional if (1) there is no secular purpose for the action (2) it has the primary effect of advancing or inhibiting religion, or (3) it fosters an excessive government entanglement with religion.

Unfortunately, neither this test nor later cases modifying it effectively protects religious minorities. The reason is that these tests are malleable; courts are forced to make decisions without clear guidance from the law, which has so far failed to clearly articulate whether the prongs are met. There is no better example of this than cases involving the display of religious minority symbols or practices on public property. Consider the following cases that involve the Lemon test or some variation of it:

  • Allegheny County, Pa.: The Supreme Court fails to come to a consensus about whether a menorah situated next to a Christmas tree was too religious to appear on public property.
  • Westchester County, N.Y.: A trial court reasons that a menorah situated next to an unlit Christmas Tree is, indeed, too religious to appear on public property.
  • Queens, N.Y.: The state department of education reasons that for the purposes of classroom holiday displays, a nativity is a “religious symbol” and cannot appear in a classroom display, but a menorah and crescent moon and star can because they are “secular symbols.”
  • Southampton, N.Y.: A court reasons that a traditional Jewish religious practice involving affixing wires on telephone poles (an eruv) is more secular and is less likely to advance religion or foster church-state entanglement than (1) permitting a private Christian organization for children to have meetings at a public school after hours or (2) displaying a Christmas nativity scene display on public property because eruvs do not “contain any overtly religious features.”

Nativities are too religious to appear on public property. Menorahs are sometimes too religious. Crescent moons and stars are secular. Traditional Jewish religious practices are okay because they don’t look religious. Interpreting and applying the Establishment Clause should not be this disjointed. The Lemon standard perpetrates confusion and inconsistency. There is, however, a better way, which we cover in the next post.

This blog series is based on an article in the Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”

The Peace Cross, the Establishment Clause, and Why the Separation of Church and State Fails to Adequately Protect Minority Religions (Part 1 of 5)

by Family Research Council

March 21, 2019

In 1925, a committee including Gold Star mothers and local veterans dedicated a memorial in Bladensburg, Maryland in honor of 49 servicemembers from Prince George’s County who gave their lives in service to World War I. They chose a Latin Cross to be the symbol of their loved ones’ sacrifice, and today, residents call it the Peace Cross.

Almost to the very day of the centennial of the first World War, the U.S. Supreme Court agreed to review whether the Peace Cross is a violation of the First Amendment’s Establishment Clause—more popularly though less accurately referred to as the separation of church and state—because it is in the shape of a cross and maintained on public property. The case of American Legion v. American Humanist Association is an important one. First Liberty Institute is involved in defending the memorial in court, and FRC filed an amicus brief in the case. Oral argument was held just about one month ago, on February 27, 2019. The case is currently under consideration, and the Supreme Court will issue its decision on or before June 2019.

As part of this case, several groups representing religious minorities argue that the current court precedents on this issue—which have put the Peace Cross in jeopardy—should stay in place, even if that means that the Peace Cross or memorials like it have to go. They say that this state of the law shields minority religions like theirs from political and cultural forces that may use their power to push minority religions out of the public square.

Family Research Council argues that this is not the case. First, the vague, subjective approach of current Establishment Clause precedents actually harms minority religions. Applying an original meaning of the Constitution instead would provide clarity for all—including religious minorities. Second, avenues outside of the courts, like the executive and the legislature at the federal, state, and local level, are better equipped to respond to the needs of minority religions.

In the coming days, we will be rolling out a special blog series highlighting these key points from the article and discussing how they help us understand true religious liberty in this age of deep confusion on the issue. Stay tuned!

This blog series is based on an article in Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”

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