To Achieve Freedom Of or From Religion, Equal Protection is a Better Strategy Than Separation of Church and State

Generally, I’m a big fan of such organizations as the Freedom From Religion Foundation and Americans United for Separation of Church and State.

The former, founded in 1978, is headed by Annie Laurie Gaylor and Dan Barker, enthusiastic and principled atheists who believe that true religious freedom entails freedom from religious interference in matters of government or public goods. They carry out their mission in two main ways: through letter-writing and litigation when the establishment clause of the First Amendment to the Constitution (“Congress shall make no law respecting an establishment of religion…”) is violated, and through public awareness campaigns via social media, network news appearances, a radio show (also available as a podcast; I’m a regular listener), billboards, and ads.

The latter, founded in 1947, is headed by Reverend Barry Lynn, an ordained United Church of Christ minister. The AU pursues many of the same goals as the FFRF, also through legal and public awareness campaigns, and also with the stated mission of upholding the establishment clause. Lynn’s and the AU’s emphasis is more on freedom of religion, pointing out how the creation of a purposefully and innovatively secular government led to less religious persecution and greater freedom of conscience in the United States than had been achieved in any other Western society up to that point.

The FFRF and the AU have done a lot of good, especially when it comes to such matters as the misrepresentation of religion as science in the public school classroom, keeping government representatives from proselytizing in their official roles, and preventing religious views from infringing on certain civil rights. That’s because they do their work in a culture which strongly values religious liberty and within a system of laws that’s designed to protect it, and they do it well. However dominated by Christianity at its outset, our nation’s origins, rife with religious dissenters championing freedom of conscience, led to the United States largely abandoning its religious favoritism and oppression in favor of religious liberty.

Yet, though the religiously non-affiliated, atheists/agnostics, and those critical of political action by religious organizations are a rapidly growing demographic, it seems that the FFRF and the AU still aren’t achieving their goals as effectively as they might. For example, many government meetings still commence with sectarian prayers, private religious opinions can still trump those of the professional medical field when it comes to access to reproductive health care, organized religions can still get special tax breaks and other perks that non-religious organizations can’t get, religious charities (such as adoption agencies) can collect public money while discriminating against some citizens on religious grounds, and American officials still seem required to pepper their rhetoric with pious references to retain public favor.

How can this be? Why do the FFRF and AU fail to achieve many of their goals when our national legal and cultural commitment to religious liberty is so robust?

It’s because of the simple fact that it’s impossible to separate our core beliefs, be they philosophical, scientific, skeptical, religious, or otherwise, from our politics. Politics is how we go about organizing our lives as members of society, which is always composed of people with conflicting interests and beliefs, and the positions we take on how we go about doing this are based on what we believe about justice, fairness, and our purpose in life. It makes no more sense to demand that people keep their religious beliefs out of politics than it is to demand they keep their other beliefs out, because our beliefs, whatever the source, are the catalysts for our opinions and actions. Forcing people to artificially separate only religious belief from political action or speech, then, is a form of unjustified religious discrimination, because it prevents some people, and not others, from public expression of their true beliefs specifically on religious grounds. For those who might object that religiously motivated politics serve to oppress people of other religions or of no religion, I reply that this is no more or no less true than it is of other belief-motivated politics. You can just as well say that liberals are trying to oppress conservatives because they act on their liberal beliefs, or that conservationists are trying to oppress free-market proponents because they act on their conservationist beliefs, and so on.

Well, then, what do we make of the world history of actual religious oppression, when people of some religious beliefs were oppressed by people of other religious beliefs? This, sadly, is not just a part of world history: it continues to this day, though in this country more often by individuals than by government. But I would say the problem has not been caused just by people forcing their religious beliefs on others through law. It’s more that people tried to force everyone to act and believe according to the tenets of only one religion, or of a very few. It’s not religion, per se, that’s the problem. We can recognize this when considering the history of religiously committed people who were the original champions of religious liberty in the United States. It makes no sense to say that religion in politics is always oppressive when it’s often been the case that religion in politics is what led to expanding religious and other civil liberties in the first place. The problem is the exclusivity and favoritism that some religiously-motivated politics call for.

So how do we attain full religious liberty while allowing the free expression of religion in politics?

We start answering this when we consider what religious liberty and religious freedom is is the first place. Freedom both of and from religion requires that people be able to express their beliefs and live according to them except as it limits the freedom of others to do so, and vice versa. Those laws and practices which protect our ability to enjoy religious freedom without infringing on the rights of others determine our religious liberty. While the principle of separation of church and state, which the First Amendment is often interpreted to express, is meant to protect religious liberty, I find that attempt to put this principle into practice often defeats the purpose, which is to achieve real religious freedom. Too many of the efforts to keep religion out of politics cross over or tread too close to the line between separating church from state, and end up unfairly suppressing government workers’ and political candidates’ freedom to publicly express their beliefs in their public life. This not only tramples on their civil rights, it also prevents the public from being informed of the true motivations behind the politics of their representatives.

It seems to me that the equal protection clause of the Fourteenth Amendment (“No State shall…deny to any person within its jurisdiction the equal protection of the laws”) would do a much better job of systematically and effectively protecting religious freedom not only because it doesn’t make the impossible demand of segregating our core beliefs from our politics, but because it’s so straightforward. Does the proposed law take every religious consideration under account, or can it, within reason? If the answer is yes, then it does not infringe on religious freedom. If the answer is no, the law must be rejected, or it must be derived from universal principles only, such as those which all philosophies and religions can generally agree on: justice, fairness, beneficence, and so on.

In other words, the principle of equal protection can generate a clear decision procedure to determine whether a law or practice is commensurate with religious freedom, in a way that the principle of separation of church and state can’t. 

In sum: when it comes to equal protection, what’s good for the goose is good for the gander. If all religions can be represented in a generally applicable law, or receive tax breaks, or be represented by a public monument on public property, well and good. If they can’t all be represented, then none can. Equal protection means: all or none.

There’s a case still under way, in which the legality of a Ten Commandments monument erected on state property is being challenged on the grounds it violates the principle of church and state. While the ACLU is challenging the Ten Commandments monument on establishment clause grounds, Lucien Greaves of the Satanic Temple is making a different argument: the Ten Commandments monument should stay …if, of course, a seven foot bronze statue of Baphomet can go up next to it, along with all other religious monuments people want to erect. It doesn’t take much imagination to picture what a crowded mess public lawns and buildings would become if plaques, statues, engravings, and every other sort of representation of the religious beliefs of all Americans were to be represented in every one. Some argue that pride of place of religious monuments should be given to those that have a special significance in American history. If that case won out (though many of the founding Christians didn’t believe in graven images), public lawns could still become very crowded with Abrahams, Moseses, Virgin Marys, Martin Luthers, Joseph Smiths, crucifixes, angels, innumerable saints, and much, much more. But would that really represent what religious freedom means to us, to give favored and exclusive access to a few religions to the walls and lawns of our public spaces and to our laws? That looks like the bad old religiously oppressive Europe many of our forebears fled from in the first place. No, if the expression of belief is to find a place in the public sphere, it must be universal, representing the myriad disparate beliefs of all, or those which are universal to all.

Now imagine the equal protection principle applied to access to health care, to education, to adoption agencies, and so on. If certain religious individuals or organizations want to influence the outcome of regulations to reproductive health care, they can send lobbyists if representatives of all belief groups have the same opportunity to participate in the discussion (secondary to the relevant medical experts, of course). If these religious individuals and organizations don’t want other views to be represented, then it’s in their interests to prudently withdraw.

Many religious organizations seem to be in a bit of a panic today in the United States, especially those with a long and distinguished pedigree. If they aren’t in a favored position to promote their views in the public square, they seem to think, their very survival is threatened. I think they’re shooting themselves in the foot with these tactics. For one thing, they appear a bit bullying, a bit usurping, and more than a bit desperate, and serve more to alienate people than otherwise. Secondly and most importantly, there’s that overall deep cultural American attachment to religious freedom. So although a number of the more zealous advocate for more government support of their own religion, it appears that most Americans see this as a betrayal of core religious principles (“Give to Caesar that which is Caesar’s…”, “My kingdom is not of this world…”, “But when you pray…pray in secret…”) and of our heritage of ever-more-vigorous religious tolerance.

So while the ‘wall of separation’ might appear a lovely fiction to many, it’s no more realistically or navigably erectable than a gaggle of religious monuments in a town square, not in a nation that believes so strongly in the freedom to think and act on one’s conscience in every sphere of private and public life. It’s best to stick more closely with our more laudable pluralistic tradition and proclaim: as a people, we can either favor everyone’s right to believe, or no-one’s. That’s why all religiously motivated people should freely participate in voting, running for office, and making laws, so long as the laws are applicable to everyone and safeguard the rights of all individuals equally, and they should feel at liberty to say what beliefs motivate them. In fact, that’s invaluable information the electorate shouldn’t be deprived of by contrived, impossible to enforce separation of belief laws.

In the end, forcible separation of the people into a nation of “our beliefs vs. theirs” won’t lead to more freedom of or from religion, but the principle of equality will.

Ordinary Philosophy and its Traveling Philosophy / History of Ideas series is a labor of love and ad-free, supported by patrons and readers like you. Please offer your support today!


Sources and Inspiration:

‘About Americans United for the Separation of Church and State’. AU website. ‘About FFRF: Welcome to the Freedom from Religion Foundation’. FFRF website.

Baker, John. ‘Establishment of Religion’, The Heritage Guide to the Constitution.!/amendments/1/essays/138/establishment-of-religion

Christian, Carol. ‘Satanic Temple’s statue of Satanic figure under way for Oklahoma capitol’, Houston, May 6, 2014.….

‘“Nones” on the Rise’, Pew Research Center: Religion and Public Life. Oct 9th, 2012

Nussbaum, Martha. “Equal Respect for Conscience: The Roots of a Moral and Legal Tradition”