Archive for March 1, 2010

The Latest Anti-Obama Conspiracy: Freedom to “Worship”?

OpinioJuris parrots a concern on the far right that Obama’s recent public reference to religious freedom as the “freedom to worship” somehow reduces the right. Emphasis and red numbering are mine:

Recently, both President Obama and Secretary of State Hillary Clinton have been caught using the phrase “freedom of worship” in prominent speeches, rather than the “freedom of religion” the President called for in Cairo. [. . . .]

To anyone who closely follows prominent discussion of religious freedom in the diplomatic and political arena, this linguistic shift is troubling.

The reason is simple. Any person of faith knows that religious exercise is about a lot more than freedom of worship. It’s about (1) the right to dress according to one’s religious dictates, (2) to preach openly, (3) to evangelize, (4) to engage in the public square. Everyone knows that (5) religious Jews keep kosher, (6) religious Quakers don’t go to war, and (7) religious Muslim women wear headscarves—yet “freedom of worship” would protect none of these acts of faith.

Those who would limit religious practice to the cathedral and the home are the very same people who would strip the public square of any religious presence. They are working to (8) tear down roadside memorial crosses built to commemorate fallen state troopers in Utah, (9) to strip “Under God” from the Pledge of Allegiance, and they recently (10) stopped a protester from entering an art gallery because she wore a pro-life pin.

Both of the central contentions of the article about the limited reach of “freedom of worship” — bolded above — are critically wrong, as are their supporting examples. First, as to the reach of “freedom of worship,” numbers 2, 3, and 4 are covered by the First Amendment right to freedom of religion only secondarily. Those rights are best asserted, and emphatically protected, under the free speech clause of the Amendment. Any one of a million Supreme Court cases would be on point for this proposition, but let’s start with Hague v. CIO, 307 U.S. 496 (1939):

Wherever the title of streets and parks may rest, they have immemoriably been held in trust for the public use and, time of out of mind, have been used for purposes of assembly, communicating thought between citizens, and discussing public questions.

Evangelists can rest easy: no-one is going to take away their right to bother the rest of us anytime soon. Further, as to numbers #1, 5, 6, and 7, the phrase “freedom of worship” is legally equivalent to the “freedom of religious expression”: Black’s Law Dictionary defines worship as “any form of religious devotion or service showing reverence for a divine being,” and the cases support that analysis. See Lee v. Weisman, 505 U.S. 577 (1992).

Our favorite new conspiracy theorists also go astray when reading the freedom of religious exercise too broadly. Questions about whether it’s right to “strip the public square of any religious presence” aren’t about “free exercise,” which refers to the individual’s right to practice his faith — they’re about the establishment of religion, which deal with the individual’s right to push his faith on the rest of us, through state-sponsored symbols, political acts, etcetera. I can’t help but think that this confusion is deliberate: for the far-far right, the right to free exercise should include the right to bring the rest of the world under their faith. But that’s not how a pluralistic society works. The First Amendment’s religion clauses delicately balance the individual’s right of worship against the rights of others to be unaffected by personal exercise. You can’t take one part of that compromise, and abandon the other. No matter where you come down on the questions presented by numbers #8 and 9, they’re not questions of freedom to worship — and, as to #10, federal authorities can freely enforce content-neutral rules of expression within federal buildings. Deal with it.

To add the expected note of hypocrisy, general practice, from Norman Rockwell (above, right) to today, shows that “freedom of worship” has always been treated as a more artful description of, not a lesser version of, free expression of religion. It’s clear that today’s right-wing Christian community only sees in Obama what they want to see. They want to see a vast conspiracy to destroy their religion, and so, even when Obama attempts to speak their language, that’s what they see.