A Sacred Right

Religious Liberty in Crisis:
Exercising Your Faith in an Age of Uncertainty 
by ken starr
encounter, 234 pages, $26.99 

For many of America's founders, the right to religious liberty had a biblical basis, and was grounded upon the duty individuals have to worship God. Consider George Mason’s draft of Article XVI of Virginia’s 1776 Declaration of Rights: “That as religion, or the duty which we owe to our divine and omnipotent Creator, and the manner of discharging it, can be governed only by reason and conviction, not by force or violence; and therefore that all men should enjoy the fullest toleration in the exercise of religion...unpunished and unrestrained by the magistrate.”

Mason’s draft was reprinted throughout the states and influenced subsequent state constitutions and the federal Bill of Rights—although the language of “toleration” was later amended to make it clear that “the free exercise of religion” is a natural right, not a privilege granted by the government. By the end of the Revolutionary Era, every state had instituted significant protections for religious liberty. The Constitution of 1787 did not, but only because its drafters believed the national government did not have the power to pass laws interfering with religious belief or practice. After popular outcry, the first Congress proposed and the states ratified a constitutional amendment that begins: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” 

Today, political progressives are mounting a powerful assault on religious liberty. They have repudiated free-exercise accommodations for people and communities of faith for whom compliance with anti-discrimination laws and regulations would require violating their sincerely held religious beliefs. In February, the House of Representatives passed the so-called “Equality Act,” which would force many to choose between their religious convictions and their professions.  

Ken Starr's Religious Liberty in Crisis explores the legal history of religious liberty in America as well as contemporary threats to it. The author has served as solicitor general, as a circuit judge for the District of Columbia, and as independent counsel for five investigations. Starr has argued 36 cases before the United States Supreme Court, and he is intimately familiar with the Court’s religious liberty decisions. He approaches his subject by winsomely describing many of these cases, often adding details not presented in the justices’ opinions.  

For instance, Starr recounts the tale of Marie and Gathie Barnette. In 1942, the West Virginia Board of Education ordered the state’s public schools to conduct patriotic ceremonies that included having children salute and pledge allegiance to the American flag. The Barnette sisters were Jehovah’s Witnesses, a sect that considers saluting any flag to be the equivalent of worshipping an idol. Accordingly, the sisters refused to participate in these ceremonies, but offered to affirm that “I respect the flag of the United States and acknowledge that it is a symbol of freedom and justice to all.” This compromise was unacceptable to West Virginia. 

The case eventually made its way to the Supreme Court. In 1940, justices had ruled 8-1 that Pennsylvania could compel such practices, but in a stunning reversal they ruled 6-3 in West Virginia v. Barnette (1943) that it is constitutionally impermissible for a state to force citizens to violate their consciences. Justice Robert H. Jackson explained: “If 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.” 

Two decades later, in Sherbert v. Verner (1963), the liberal justice William J. Brennan Jr. articulated the rule that laws and policies that place a substantial burden on an individual’s ability to act on a sincerely held religious conviction must be justified by a compelling state interest. Later, the justices added the requirement that this interest must be pursued in the least restrictive manner possible. Collectively known as the Sherbert Test, this approach provided robust, although not perfect, protection for religious citizens. 

Alas, a majority of Supreme Court justices repudiated the Sherbert Test in Oregon v. Smith (1990). In the face of popular protest, Republicans and Democrats came together to enact the Religious Freedom Restoration Act of 1993 to restore the old test by statute. It is noteworthy that the bill was passed in the House without a dissenting vote, was approved 97-3 by the Senate, and was signed into law by President Bill Clinton. 

Starr recounts this history with lively prose. He also explores the freedom of communities to engage in public religious practices—such as opening city council meetings with prayer, maintaining religious symbols on public property, and holding Bible studies in public schools.  

Next December marks the fortieth anniversary of Widmar v. Vincent, the Supreme Court decision that requires public universities to permit religious groups to meet on campus on the same terms as non-religious groups. To secure this right for high school students, Congress passed the Equal Access Act in 1984 with bipartisan support. When the constitutionality of this law was challenged, Starr defended it before the Supreme Court. His position prevailed by a vote of 8-1. 

As evidenced by both the Equal Access Act and the Religious Freedom Restoration Act, there was a time when liberals and conservatives could come together to support religious freedom.  Unfortunately, those days are fading. Religious Liberty in Crisis offers a timely, passionate, and accessible defense of this fundamental right. Hopefully, it will encourage conservatives to fight for religious liberty, moderates to value it highly, and progressives to recommit themselves to protecting what America’s founders called “the sacred right of conscience.”

Mark David Hall is the author of Did America Have a Christian Founding?: Separating Modern Myth from Historical Truth.

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Image by Joseph Keppler via Wikimedia Commons. Image cropped.