The authors of the United States Constitution were aware of the dangers presented by state infringement on religious liberty. The First Amendment provides two key protections for citizens. The first is the prohibition against making “law respecting the establishment of religion.” This protects citizens from the tyrannical imposition of a state-backed religion. The second is that congress is forbidden from making any law that prohibits the free exercise of religion.
I support both prohibitions. While many believe it would be a great if their religion was the one being established and imposed via the coercive power of the state, they would not want someone else’s religion imposed upon them. For example, Americans who want to use Christianity as foundation for laws express horror at the prospect of Sharia law being imposed on them. As always, it is wise to consider the actions of the state in accord with the spirit of the Golden Rule: impose laws on others as you would have them impose laws on you. So, just as I would not want to have Sharia law imposed on me, I should not impose faith based law on others.
While I am not particularly active in my exercise of religion (although I am religious in my exercise), I also support the freedom to exercise religion. On the extreme side, imposition on religious liberties are often the starting point of efforts to oppress religious minorities. This can, and has, lead to attempts at extermination. As such, it is wise to make it difficult to get the ball of hate rolling. On the less extreme side, the free exercise of religion is part of the broader moral rights of liberty of conscience, freedom of expression and freedom of belief (which I also support). The American experience has shown that the acceptance of religious freedom, as imperfect as it may be, has helped maintain the stability of the United States. While we have many sects and religions, we do not have sectarian or religious violence at any significant level. While there are, of course, other factors that contribute to this, the freedom of religion has contributed significantly.
In recent years, there have been claims that religious liberty is under attack in the United States. As a holiday tradition, Fox News runs its yearly absurd stories about an alleged war on Christmas. While rampant, soulless consumerism has largely defeated Christmas, there is obviously no war against it. There are also claims that Christians are persecuted in the United States. To support this, people point to the legality of abortion, the legalization of same-sex marriage, and laws protecting LGBT people from discrimination. These are taken by some as attacks on religious liberty. In response, several states have endeavored to roll back these alleged intrusions on liberty, although this has resulted in backlash from the public in some cases.
To appeal to certain evangelical voters (who are not a monolithic bloc) Trump claimed that he would act in accord with their view of religious liberty. As they see it, Trump will enforce the second prohibition and protect citizens in their free exercise of the religion. However, critics can argue that this would violate the first prohibition by imposing religion on others via the law. Since I have argued these issues in other essays, I will not undertake this battle here. Rather, I will hold the supporters of religious liberty to their rhetoric about freedom. To be specific, let it be assumed that religious freedom is something they think should be protected by the state—even when doing so can impose harms on others. To illustrate the harms, consider the impact of not protecting LGBT people from discrimination based on faith as well as the impact of the anti-abortion efforts on women’s health and freedom of choice.
While Trump made a great rhetorical effort to win evangelical voters, he also engaged in sustained attacks on Muslims. He proposed a complete ban on allowing Muslims into the United States, he has called for a registry of Muslims, and has consistently used anti-Muslim rhetoric. While the ban and registry can be taken to violate the prohibition against interfering with the free exercise of religion, this can be countered. It could be argued that banning Muslims from the United States does not prevent them from freely exercising their religion in the United States—they would simply be excluded from coming here because of their religion. It could also be argued that a registry would also not be a violation of this prohibition. While some Muslims might elect to keep their faith private to avoid being put on that list, the registry itself would not forbid the free exercise of religion. Those willing to identify themselves to the government and have their information in a database conveniently available for hate-group hacking would be free to exercise their religion.
Not surprisingly, some Christians dedicated to their own religious liberty support the registry and ban. However, they should consider the matter not just in terms of their own perceived self-interest, but in terms of their professed support for religious liberty as a principle. They should consider reversing the situation: what would be their view of a country that banned Christians and had a registry of Christians? They would presumably be rather critical of such a country and would most likely consider those acts persecution. This reflection should help suggest what is wrong with the ban and registry.
The principle of religious liberty would seem to prohibit the registry and ban—they seem to be clear impositions on the freedom of religion, broadly construed. This can be countered by defining religious freedom more narrowly—limiting it to, for example, the freedom to worship within a religious edifice. This narrow interpretation would, however, preclude using the religious liberty argument in regards to such matters as abortion, contraception and LGBT rights.
Another possible counter is based on the fact that rights do have limits. One basis for limiting rights is the principle of harm: liberty can be restricted to protect others from harm. Using the stock example, the freedom of expression does not grant the right to yell “fire” in a crowded theater. In the case of the Muslim registry and ban, it can be argued that the religious liberty of Muslims can be limited to protect others from harm. This would presumably be developed in terms of terrorism. However, if possible harms to others is used to warrant the Muslim ban and registry, then the same argument can be used in response to the religious liberty arguments about abortion, contraception, and LGBT rights based on the harms they will impose on others. This then becomes a matter of weighing the harms imposed by restricting or allowing religious liberties. Regardless of the specific evaluation, this involves recognizing that the ban and registry violate religious liberty and that religious liberty can be constrained on the grounds of harms.