The difference between then and now? Many of the ideas currently being protected by free speech rights run contrary to progressive ideology. Over the last 13 years, the Supreme Court “has been far more likely to embrace free-speech arguments concerning conservative speech than liberal speech,” the Times said.
What is religious freedom? Among our First Amendment rights are freedom of religion, freedom of speech, freedom of the press, and freedom of assembly. Religious freedom means more than just freedom to believe what you want. It is also freedom to talk about and act on your beliefs without coercion or interference, subject to certain narrow limitations.
What is the public square? The “public square” refers to all settings outside private homes and houses of worship. These include public parks and sidewalks, government buildings and meetings, public schools and universities, private property that the owner opens to the general public and many other similar settings. The public square may also include media—books, newspapers, magazines, the Internet—and, in general, anything that is accessible and open to the public.
What laws protect religious freedom? The First Amendment to the U.S. Constitution protects religious freedom in two ways: The “Establishment Clause” prohibits the government from adopting an official religion, and The “Free Exercise Clause” prohibits the government from interfering with people’s practice of religion. The First Amendment applies to all levels of government: federal, state, and local. The government must provide at least as much protection for religious liberty as the Constitution requires, but they can choose to provide more. In fact, state constitutions and laws often provide greater protection for religious freedom than does the U.S. Constitution.
What is “separation of church and state”? “Separation of church and state” does not appear in the Constitution, nor is it a legal term. Thomas Jefferson coined the phrase to describe religious freedom as including a healthy independence between government and religious organizations to protect the interests of both. However, the phrase is sometimes used to claim, incorrectly, that the Constitution requires government to be religion-free. In reality, government may actively cooperate with religious organizations in common causes, such as public heal or social welfare. The government also has a duty to accommodate religion when necessary to guarantee the right to free exercise of religion. For example, police must protect religious communities or speakers from harassment or persecution, religious organizations must be allowed to use public facilities and government employees must generally be allowed to wear religiously required clothing to work.
Is protecting religious freedom important? Yes. Religious freedom is an essential protection allowing people with strong differences of opinion and belief to live together in peace. The people who wrote the Constitution knew that violent conflicts about religion had plagued Europe for hundreds of years, as rulers tried to control the religion of their subjects. Some of the early colonies also tried to regulate religion and experienced similar problems. The Founders sought to avoid these conflicts in the new nation by forbidding official religions and by protecting all religions from government interference. The Founders also believed that government interference in religion was an assault on human rights. The Constitution protects people from government attempts to deny people’s basic human rights, including the right to have and exercise one’s own religious beliefs.
How do we know what is constitutional in specific situations? The U.S. Supreme Court and other courts decide cases in which someone claims that a government action is unconstitutional.
Does religious freedom include more than belief? Yes. The Constitution protects not only people’s right to believe as they choose, but also to worship, to share their beliefs, and to act according to their beliefs. All these rights apply to both individuals and groups.
Does religion have to be a private matter? No. The Constitution protects religious liberty both in private and in the public square. The right to religious freedom does not disappear when a person enters a public setting such as a school or a government buildings, when he or she accepts government office or employment, or when he or she operates a business open to the public. In fact, the government is obliged to protect religious liberty in all these settings, with only very limited exceptions.
Are there limits on the free exercise of religion? Yes. As with any right, religious freedom is not absolute. While the government may never tell people or communities what to believe, in a few circumstances it may restrict the way they exercise those beliefs, such as to protect public safety or the fundamental rights of others. To take an obvious example, the government could forbid human sacrifice even if a religion’s teaching approved of or required it. The Supreme Court has developed a test for when the government is allowed to restrict religious practices under the Constitution.
May religious groups and people of faith participate in politics? Yes. Religious groups and individuals have the right to take positions and influence public opinion on all public and political matters. Religious leaders and organizations frequently do so. Some types of political involvement, while constitutional, may affect a religious organization’s ability to keep its federal tax-exempt status.
May religious beliefs influence public policy? Yes. All kinds of beliefs influence the policy preferences of voters and legislators, including religious ones. The simple fact that a policy coincides with a religious teaching or grows out of religious values concerning right and wrong does not make it unconstitutional so long as the policy itself has a secular purpose, does not advance or inhibit religion, and avoids excessive government involvement with religion. For example, just because many religious teachings oppose violence does not mean that laws prohibiting assault are unconstitutional. To take a more controversial example, some types of laws restricting abortion are constitutional even though they coincide with certain religious beliefs, because they have secular justifications, are neutral regarding religion, and don’t unduly involve the government in religion.
May elected officials speak about God? Yes. Elected officials have a First Amendment right to express their religious beliefs. However, they may not use their official capacity to establish religion, such as by favoring, promoting, or discriminating against a particular religion.
May government meetings open with prayer? Yes. So long as the prayers are not used to proselytize or advance any particular faith or belief. Good practice is to invite chaplains or representatives of various faiths, including non-Christian denominations, to take turns offering prayers and to make the prayers generic in content.
May the government require that government officials or employees belong to a certain religion or believe in God? No. The government cannot require any kind of religious test as a condition for public office or employment. The government may require people to take an oath of office or make a similar affirmation, but it may not require them to place their hand on the Bible or any other religious book or to use the phrase “so help me God,” although the person can do these things if they wish
May local governments use zoning laws or other means to keep religious groups out of their communities? No. Local land use laws, such as zoning ordinances, may not target religious organizations for exclusion, discriminate against them, or place unreasonable burdens on them. An example of a government action that would not be allowed is a zoning ordinance that prohibits places of worship, while allowing non-religious places of assembly for clubs or other associations.
Do tax exemptions for religious organizations violate the Constitution? No. Religious organizations are tax-exempt under all state and federal tax codes, Ub fact, the Constitution may require this, as the Supreme Court has suggested that taxing churches would cause excessive involvement between church and state.
May the government favor on religion over another? No. The government may not give special privileges or place special penalties on any specific religion or religious group, or show preference for one religion or religious group, or show preference for one religion over another or for atheism.
Does government property have to religion-free? No. Government property need no be free of religious references, symbols, or messages, so long as the government does not appear to endorse any specific religion. Whether a particular display is constitutional depends heavily on the particular circumstances. Temporary displays (such as holiday displays), may contain religious elements if the display, taken as a whole, does not promote a religious message or indicate government endorsement of religion. For example, a Nativity scene together with non-religious holiday symbols, such as Santa Claus and candy canes, would probably be allowed, but not a Nativity scene standing alone would not be. Permanent displays (such as monuments) may contain religious element if the purpose and primary effects of the display are secular—in other words, if a reasonable observer would not believe the government means to endorse a particular religion.
May individuals and religious organizations use government property for religious expressions and activities? Yes. In general, the government must provide religious groups the same access to public facilities that it provides for other types of groups. For example, a state university that hosts a variety of student activities may not exclude a religious student group simply because it is religious, although certain other restrictions may apply.
May government employees wear religious dress or symbols to work? Yes. All employees generally have the ability believe and act consistently with deeply-held religious beliefs while in the workplace, subject to some narrow limitations. Government employees may enjoy these rights as well.
Do public schools have to religion free? No. Public schools and universities must be neutral toward religion; they can’t favor it or be hostile to it. Schools have a duty to accommodate a student’s exercise of religion, unless it is disruptive to discipline or interferes with the rights of others. Schools may teach about religion in an academic, neutral, non-denominational way. Schools may not sponsor “religious speech.” For example, school-sponsored prayers or devotional scripture readings during the school day or at school events are inappropriate.
What laws protect religious speech? The First Amendment provides extremely broad protection for freedom of speech of all kinds, including religious speech. The government cannot forbid speech because of its content, religious or otherwise, even it if is extremely offensive to others. This is subject only to very narrow exceptions, such as speech that poses a clear and present danger by inciting imminent violence. This strong protection of speech safeguards the free public exchange of ideas that is essential in a democracy.
Does freedom of speech include more than speaking? Yes. Freedom of speech, religious or otherwise includes not only speech, but other forms of expression such as displaying, publishing and distributing signs, banners, pamphlets, books, magazines, websites, or other materials. The government may regulate some aspects of these activities, such as solicitation of donations or commercial agreements between religious groups and publishers or distributors, but it may not control the content.
May privately owned newspapers, magazines, television stations, and other media outlets publish religious (or anti-religious) speech? Yes. The First Amendment guarantees the right to freedom of the press. With very limited exceptions, people and groups have the right to publish any views in any media available to them. These views may be religious, non-religious, or even anti-religious. For example, laws against blasphemy would be unconstitutional. However, the government does not have to provide the means for publishing these messages.
May a privately owned media outlet such as a newspaper, magazine, or television station refuse to publish religious speech? Yes. Private media outlets have the right to decide whether to publish or broadcast any materials. Individuals or groups may not demand that a private media outlet publish or broadcast their speech, religious or otherwise.
May the government forbid religious speech or expression on government property? No. The government may not forbid or restrict speech on government property simply because it is religious or because of its particular religious content. In fact the government has a duty to accommodate such speech, for example by providing police protection, if needed.
May the government prohibit religious speech because if offends others? No. The government cannot restrict speech because it is unpopular or offensive, even if it is extremely offensive or likely to provoke protests. On the contrary, police have a duty to protect speakers by controlling crowds and hecklers.
May the government prohibit religious speech on private property? No. Individuals and organizations have the right to express their religious faith or views on their own property, including displaying religious symbols or messages. Certain land use or zoning restrictions may limit religious and non-religious displays alike, but they may not single out religious speech or unreasonably limit it.
Is there a constitutional right to religious speech on the private property of others? No. Even if the private property is open to the public, such as retails stores or shopping centers, permission must be obtained from the owner.
Can the government require permits for door-to-door proselytizing or advocacy? No. However, the government may impose reasonable regulations on the time, place, and manner of door-to-door advocacy, so long as they apply equally to everyone who engages in kind of activity.
May the government control the content of religious sermons? No. Even if anti-discrimination laws were to prohibit messages that might offend certain groups of people, applying these laws to church sermons, would be unconstitutional, as would any law prohibiting churches from preaching their own views on social and moral issues.
Can professionals (such as bakers, florists, and doctors) refuse to provide services that violate their conscience or religious beliefs? It depends. Each state has its own anti-discrimination laws applying to businesses and professionals providing goods or services to the public. Some of these explicitly allow exemptions when providing a service that would violate a provider’s religious beliefs. Others do not. Similarly, some states have conscience laws that affirm the right of doctors or other professionals to refuse to provide services they oppose. While it is clear that government enforcement of anti-discrimination laws must not be hostile to religion or to religious believers, this area of the law is still in development. Cases will depend on the law in question and a variety of other circumstances. When considering the constitutionality of such laws, courts may seek to balance the government’s interest in limiting discrimination against individual freedoms of speech and religion.
Can a religious organization that rents its facilities to the public for events refuse certain types of events? It depends. Some states have laws that specifically protect religious organizations’ right to refuse to rent their facilities for events contrary to their beliefs. But as with the issue of businesses or professionals refusing to provide services, the answer is not always clear.
Can employers discriminate based on religion? Generally, no. Most employers may not hire or fire employees on the basis of their religion or their need for religious accommodations in the workplace (such as an exception to a dress code for a religious head covering, or reasonable excuse for religious holiday observances), and must general accommodate their employees’ religious practices, unless doing so would place an undue burden on the business or other employees. One major exception is that a religious organization has the right to require its ministers and many other kinds of employees to be members of that religion and to live by the religion’s standards of conduct even outside the workplace.
May religious organizations receive federal funding for social programs and services, such as health care or education? Yes. Religious organizations may apply for and receive federal funding for such programs on the same basis as non-religious organizations, and often do so.
One law professor at Georgetown, Louis Michael Seidman, who used to defend free speech now sees his prior position as a mistake. “When I was younger, I had more of the standard liberal view of civil liberties,” Seidman said. “And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”
Catharine A. MacKinnon, a law professor at the University of Michigan, goes further still, declaring that free speech reinforces and amplifies injustice because it is now being used to defend ideas she finds distressing. “Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” writes MacKinnon, who teaches such courses as “Evolution of Gender Crimes” and “Sex Equality.”
Speech does not need to be intelligent or compelling to be worthy of protection.
In reading through the New York Times piece it becomes abundantly clear that many liberals really never cared about “free speech” as such, but rather sought protection specifically for progressive ideas and behaviors. As soon as conservatives started demanding the same protections for their speech, it no longer seemed like such a good idea.
The difference between then and now? Many of the ideas currently being protected by free speech rights run contrary to progressive ideology. Over the last 13 years, the Supreme Court “has been far more likely to embrace free-speech arguments concerning conservative speech than liberal speech,” the Times said.