Religious Liberty and Civil Rights in Peril

Last week the Supreme Court dealt a stunning blow to religious liberty and the separation of church and state.  In a predictable 5-4 division, they voted to deny a death row inmate access to an Imam prior to his execution in Alabama.  The Alabama prison would only allow a Christian chaplain to offer solace from inside the execution chamber, citing a security risk to let someone into the room who was not an employee of the corrections department. The Inmate, Domenique Ray, declined the Christian chaplain.

Ray’s attorney then challenged the denial of his right to spiritual care. A federal court granted a stay of execution until it was determined whether the prison had violated the Establishment Clause of the First Amendment, which states:

               “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of their grievances.”

The Supreme Court vacated the stay of execution and allowed it to proceed. The court tried to hide behind a technicality, stating that the appeal for spiritual counsel for Mr. Ray was not filed in a timely fashion and was therefore not relevant.  The dissenting Justices, Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotamayor called the decision “profoundly wrong.”

Prison officials cited the special training Christian chaplains (the only chaplains) at the prison receive.  There was nothing to prohibit the Imam from receiving the same training the Christian chaplains received, except he was not given the option. Instead the Imam was only allowed to witness the execution from the viewing room, behind glass.

Anyone concerned about the separation of church and state has reason to be alarmed.  Alabama state law explicitly states that the inmate’s spiritual adviser of choice may be present at an execution. It does not elaborate what “present” means. Priests are allowed to administer the Sacrament of the Sick, formerly known as Last Rights, in the execution chamber.  Since all the chaplains are Christian, there is already a violation of the Establishment Clause in the prison’s failure to provide appropriately trained clergy of all traditions to meet the spiritual needs of their population. In this failure they favor Christianity over all other religious traditions.

A second blow to the separation of church and state was dealt by the occupant in a May 2018 executive order, cloyingly called The Religious Freedom Act. It flew in under the radar.  It establishes a White House Faith and Opportunity initiative in order to provide recommendations on the administration’s policy agenda. Given the occupant’s connection to conservative white evangelicals this does not bode well for anyone.

Beneath the thin veneer of language appearing to support religious liberty is a clear diminishment of the separation between church and state.  It allows churches to advocate for political candidates.  This effectively makes the church a campaign arm of whatever party they support. When church and state are muddled together, the gospel always loses.

The Johnson Amendment, as the 1954 law is often called, is a U.S. tax code rule preventing tax-exempt organizations, such as churches and educational institutions, from endorsing political candidates. Opponents have argued the amendment served to stop black churches from organizing in the civil rights movement. However, endorsing political candidates and advocating/organizing for social justice issues are two different things.  The church has always had a prophetic ministry, pointing out injustice and working to redress it. 

The occupant said, “The Religious Freedom act will help ensure that faith based organizations have equal access to government funding and equal right to exercise their deeply held beliefs.” It’s those last three words that are problematic.  They are often used to justify anti LGBTQ legislation in the name of “religious freedom.”  The case of a Colorado baker refusing to bake a wedding cake for a gay couple was settled by the Supreme Court in a 7-2 vote in favor of the baker.  The court voted that the Colorado Civil Rights Commission violated the baker’s rights under the first Amendment. Colorado’s anti-discrimination law was trumped by a business owner’s religious conviction.  What will happen when healthcare providers refuse to treat LGBTQ persons, Muslims, Buddhists and any other religious community based on “religious conviction”? It is a frightening and slippery slope.

The Religious Freedom Act will open the door to legalized discrimination in the name of religious conviction, inappropriate endorsement of political candidates and a muddling of civil rights.  We have only begun to see the nightmare this will create.  We can expect to see social norms replaced by religious “piety”.  We will see women’s rights rolled back and a possible overturn of Roe v. Wade, or at the very least, the severe limiting of reproductive services especially to poor women.

Events such as these two are the canary in the coal mine of our religious freedom and the separation of church and state.  Rachel Laser, president of Americans United for Separation of Church and State, said in a press release that the order was “one more attempt by Trump, cheered by his Evangelical Advisory Board, to redefine religious freedom to mean the freedom to discriminate against those who do not share your religious beliefs.” 

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