In the aftermath of the Orlando shooting there are already people claiming this event as justification to set aside American religious liberty. Some of this is demagoguery; some of it is a well-meaning attempt to sort out feasible options in the face of terror. Much of the latter portion proceeds from misunderstandings about the nature of religious liberty.
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Religious liberty simply means that people are treated equally regardless of their religious beliefs. Government does not take notice of a person’s religious affiliation when applying the law to them. That’s all that religious liberty really means. A Muslim who shoots somebody faces the same treatment as a Baptist who shoots somebody. THAT’S religious liberty. And the inverse is likewise true: A Muslim who doesn’t shoot anybody faces the same treatment as a Baptist who doesn’t shoot anybody.
Evidence that someone is in a criminal conspiracy ought to be more than just his religious affiliation.
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Your religious liberty may legally be restricted in some situations when it runs afoul of other laws, and pretty much all of us are OK with that. In American law, constitutional liberties like religious liberty get the benefit of a standard called “strict scrutiny.” This doesn’t mean that religious liberties cannot be restricted; rather, it simply means that government may only restrict religious liberties when it (a) has a compelling interest in doing so, (b) has narrowly tailored the law solely to accomplish its compelling interest, and (c) has used the least-restrictive means to accomplish its compelling interest.
For example, there are religions that kill things and offer them as sacrifices. Imagine that someone were to come to the United States from a country where they were animists and were accustomed to offering human sacrifices to appease their gods. Although that person has a legitimate religious interest in killing another person, the government has a compelling interest in preventing people from killing one another. Therefore, the government can arrest such a person for killing someone else.
For the government to outlaw all sacrifices would not pass constitutional muster. In the (best-named EVER!) Supreme Court case City of Hialeah v Church of the Lukumi Babalu Aye, the United States Supreme Court has declared as constitutionally protected the right of adherents of Santeria to sacrifice chickens (we Southern Baptists have a role for dead chickens in our faith, too). An act outlawing all religious sacrifices would not be the least restrictive means to accomplish the government’s compelling interest to prevent homicide. It takes in too much. It could have outlawed only HUMAN sacrifices, accomplishing its goal without preventing other forms of religious worship that do not require the murder of anyone.
For the government to outlaw animism would also fail at the court. That’s not narrowly tailored (and frankly, I and quite a few constitutional lawyers get a little fuzzy on the difference between “narrowly tailored” and “least restrictive means”). Even though human sacrifice has long been a part of this particular form of animism, the court leaves open to the adherents the possibility of adapting their religious faith to American law. They may claim to be animists, hold to animist beliefs (including the belief that human sacrifice is good!), meet as animists, and teach animism. They may not, however, offer any human sacrifices. The least restrictive thing to do is to prevent the act of human sacrifice or conspiracy to commit the act of human sacrifice without restricting animist beliefs in general.
This system works really well and has stood the test of time. To argue for universal religious liberty is not to argue that anyone can be exempt from the law. Rather, it is to argue that government must restrict a person’s religious liberty only when the needs are grave and the means are circumspect.
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Religious liberty is in many ways simply an extension of the Golden Rule. Indeed, I think it is impossible to live out the Golden Rule while trying to curtail anyone’s religious liberty.
Consider what has happened in Orlando. A terrorist has murdered 50 people and injured a like number. Why did he do so? There are two overlapping answers that are on the table so far. He declared his allegiance to ISIS, so he did it because he’s a Muslim. He apparently also chose the site because he believed that homosexual sex is sinful, so it appears that he may have done it because he is against same-sex marriage.
He is unlike me in that he is Muslim. He is like me in that he believes homosexual activity is sinful.
With regard to his moral objection against homosexuality, I hope that our nation will see the difference between murderous religious kooks like the shooter (whose name I am avoiding in order to deny him fame) and people like me who share BOTH a moral objection to sex between two men or two women AND a moral objection to shooting up nightclubs.
That’s EXACTLY what the Muslim cardiologist in the next town over is hoping. He’s hoping that our nation will see (and respect in law) the difference between murderous religious kooks like the shooter and people like him who are Muslims but who save people’s lives rather than ending them.
Do unto others as you would have them do unto you. Treat Muslims the way you want people who oppose same-sex marriage to be treated—Differentiating between people of good faith who just disagree with one another on the one hand and people who are violent kooks on the other hand.
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Religious liberty admittedly provides something less than 100% security. In fact to enjoy ANY liberty will provide you with something less than 100% security. He who will trade liberty for security deserves neither, you may have heard. We cannot achieve 100% safety from Islamic violence without banning Islam. But what if we ban Islam? Will you be 100% safe then? No, you will not.
People die from religious zealots in countries without religious liberty, too, you know. Look at how many people have died from religious extremism in the Middle East, the area with the least religious liberty! Outlawing ISIS hasn’t made Syria safer, now has it!? What do you think, when you pass a law against being Muslim the fall of a congressional gavel will suddenly make American Muslims something else? That they’ll all suddenly become Presbyterian in their hearts? That banning Muslim immigration will actually keep ISIS from sending people here? That people who really want to come to the United States for bad reasons will admit to the consular officers that they are Muslims when they know that prevents them from immigrating? We’ll do a great job at keeping out all of the honest Muslims who are unwilling to lie. The terrorists will all suddenly become dishonest Buddhists or Christian “converts.” Abrogate religious liberty in the United States and we’ll still be in danger in this fallen, sinful, violent world.
We’ll just be in danger without religious liberty rather than with it.
You see, there are prices to be paid on both sides of the question. Dozens of people have died because someone’s false religious views led him to commit murder. Thousands die just as dead in places that do not have religious liberty. Hundreds of thousands of American soldiers have died that we might keep religious liberty. Do we make the sacrifices of these hundreds of thousands meaningless in order to avoid dozens of casualties from Islamic terrorists today? That seems to me like a bad trade.
Religious wars are wars. Our nation can prosecute them like any other war, discriminating between combattants and noncombatants as best as we can. We can do so without sacrificing our constitutional liberties.
Religious crimes are crimes. Our nation can investigate and punish them like we do any other crime, amassing evidence, achieving probable cause, holding people as guilty until proven innocent, and practicing our justice system. We can do so without sacrificing our constitutional liberties.
Holding to religious liberty does not prevent us from fighting a war to the fullest degree and achieving victory. It merely requires that those who fight the war promise to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” That includes supporting and defending the First Amendment guarantees of religious liberty for all people, as it always has in our country.
