Religious Freedom: Our first and most cherished liberty

Freedom is widely regarded as the quintessential American virtue. Religious freedom in particular has been fundamental to the American way of life from the start and is sometimes referred to as our nation’s “first and most cherished liberty.”

What is religious freedom? Religious freedom refers to the fundamental right of every person to hold religious beliefs and engage in religious practices, whether in private or in public, alone or in association with others, within due limits. In short, religious freedom is the right to be free from coercion in religious matters. 

The Founding Founders of our country were convinced that religious freedom is a God-given natural right and an essential element of a free and democratic society. For instance, James Madison, the main drafter of the Constitution, wrote in his famous 1785 essay in favor of religious liberty, Memorial and Remonstrance against Religious Assessments, that religious freedom is a basic human right: “The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” 

The Founders sought to protect religious freedom by enumerating it as the very first right in the First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The two parts of this right to religious freedom are known as the Establishment Clause and the Free Exercise Clause. 

The Establishment Clause is meant to prevent the government from establishing an official religion or a national Church that receives special recognition, protection, or privilege in law, and the Free Exercise Clause aims to protect the rights of all American citizens to freely practice their faith without undue interference. The two clauses work together to strike an important balance that allows for people to freely practice their faith, while at the same time preventing anyone from imposing their faith on others by force of law. 

Where are the threats to religious freedom coming from today? In a broad sense the most potent threat to religious freedom comes from the culture itself. Religion has been under increasing attack over the past half century in our country. An aggressive secularism dominates our culture and now controls most of the mass media, academia, entertainment, and pop culture. Secular progressives no longer take a “live and let live” approach but all too frequently engage in an unremitting assault on religion and traditional moral values, and attack viciously any dissidents from progressive orthodoxy. Often, the focus is on advancing progressive positions on abortion, sexual orientation, and gender identity. These issues are no longer just private matters, but rather public causes pushed for with a kind of secular evangelical fervor.

The attacks on religious freedom sometimes come from the government itself. In recent decades, there have been many challenges to the free exercise rights of people of faith that have gone all the way to the United States Supreme Court, and in most cases the Court has ruled in favor of religious freedom. In the 2016 Little Sisters of the Poor v. Azar case, for example, the Supreme Court held that the U.S. Department of Health and Human Services could not force the Little Sisters of the Poor, a Catholic order of nuns that run homes for the elderly poor across the country, to violate their religious convictions and provide contraceptive coverage in their insurance plans under the Affordable Care Act. In the 2018 Masterpiece Cake Shop case, the Supreme Court ruled against a Colorado Civil Rights Commission’s finding of discrimination and in favor of a cake shop owner who refused to make a wedding cake for a same-sex couple due to his Christian conviction that marriage is between a man and a woman. A third example is the 2022 Fulton v. City of Philadelphia case, where the Supreme Court held that the refusal of Philadelphia to contract with Catholic Social Services to provide foster care services unless it agreed to certify same-sex couples as foster parents violated the Free Exercise Clause of the Constitution. Many other examples like these could be given. 

While on the one hand it is good news the Supreme Court has frequently ruled in favor of religious freedom, it is unfortunate that people of faith are required to file costly and time-intensive lawsuits to defend their rights.    

Today some of the biggest threats to religious freedom are coming from the executive branch of the federal government. Time and again, federal agencies have issued regulations that surpass the agency’s rule-making authority, assert secular policies at odds with the intent of the statue passed by Congress, and violate religious believers’ religious and conscience rights. This has become so pervasive that last year, two legal scholars from Notre Dame Law School warned in an Op-Ed piece in the Wall Street Journal, entitled “Biden Boils the Religious Liberty Frog” (April 2023), that the current administration has engaged in a “regulatory war on religion.” 

To take one example, Congress passed the Pregnant Workers Act (PWFA) in 2022 to protect pregnant women by granting them reasonable workplace accommodations for pregnancy, childbirth, or related medical conditions, like granting time off from work, allowing work from home, and restructuring work duties. After passing PWFA, Congress directed the Equal Employment Opportunity Commission (EEOC) to issue regulations for carrying it out, which it did in April 2024. The EEOC in its rule not only issued regulations to support pregnant women and childbirth, but it also defined “related medical conditions” to include abortion and in vitro fertilizations, so that even employers who object to these procedures on moral and religious grounds would be required to accommodate them. The PWFA says nothing about abortion or IVF. The regulation mandating accommodations for abortion and IVF flies in the face of Congress’s intent expressed in the debates over the PWFA, where both the lead Senate Democrat and Republican co-sponsors of the bill said that it could not be construed to cover abortion. The Diocese of Bismarck and its insurer, the Catholic Benefits Association, are currently fighting this in federal court.

There are many places in the world today that do not have the freedoms we enjoy in America. Religious freedom is a precious right that we cannot take for granted. It is our first and most cherished liberty. As Catholics and as Americans, we must be willing to stand up for our right to freely live our faith, or we will lose it.