No Right is an Island

Alan J. Reinach March/April 2002

No Right is an Island

By Alan J. Reinach

Post-September 11 polls show that Americans are all too willing to trade freedom for security. But what freedoms we will trade and what impact this will have on other freedoms remain an open question.

Among those clamoring for greater security, there is only dim recognition that fundamental rights are interrelated. If any right is undermined or abridged, all others are necessarily impacted as well.

This rethinking of basic liberties has clear implications for religious freedom. If the rights of habeas corpus, due process under the Fourteenth Amendment, Fifth Amendment rights against self-incrimination, or Fourth Amendment rights to be free of unreasonable searches and seizures give way to the antiterrorist imperative, the fundamental rights of conscience will not escape.

Let's first take a look at the interrelatedness of various fundamental rights to religious freedom and then examine why we cannot expect any fundamental rights to endure as islands in a sea of eroding liberties.

By its very nature, the relationship between government regulation and religious practice invokes multiple constitutional values. Constitutional provisions relating to speech, equality, and privacy and autonomy intrinsically interconnect with and overlap the constitutional text explicitly protecting religious liberty. Religious liberty cannot be meaningfully understood—or protected—in isolation.

Religion clause issues routinely cross constitutional boundary lines. Religious freedom claims invariably invoke free speech, equal protection, and privacy and autonomy concerns. In the words of one constitutional scholar:"Religion is a multidimensional constitutional interest. In its varying aspects, it implicates personal liberty, group equality, and freedom of speech. In addition to protecting the freedom of religious individuals and the autonomy of religious institutions to follow the dictates of their faith, the Constitution affirms the equal status and worth of religious groups and the faiths that sustain them. Further, it protects the rights of religious and secular individuals to espouse their beliefs on an equal basis with others and to influence personal and public policy in a competitive market place of ideas."

Take free speech, for example. Free exercise and establishment clause concerns and free speech interests have been doctrinally linked in Supreme Court opinions for decades. In 1939 the U.S. Supreme Court considered a case involving Jehovah's Witnesses engaged in door-to-door solicitation. The Witnesses challenged municipal regulations restricting their activities and subjecting them to criminal penalties. The Court's ruling in favor of the Witnesses combined the free speech and religion interests: "The fundamental law declares the interest of the United States that the free exercise of religion be not prohibited and that freedom to communicate information and opinion be not abridged."2

A subsequent case involved the application of a licensing fee for soliciting to individuals going door-to-door to distribute religious literature. In explaining his decision that this tax violated the First Amendment, Justice William 0. Douglas described the dual nature of the activity at issue and the constitutional provisions that protected it:

"This kind of evangelism ... is more than preaching; it is more than the distribution of religious literature. It is a combination of both. Its purpose is as evangelical as the revival meeting. This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits. It has the same claim to protection as the more orthodox and conventional exercises of religion. It also has the same claim as the others to the guarantees of freedom of speech and freedom of the press."3

More recent cases demonstrate the same overlap of speech and religion. In

Widmar v. Vincent a group of religious students were prohibited from using campus facilities at the University of Missouri for meetings involving prayer, the singing of hymns, Bible commentary, and the discussion of religious views and experiences. The Court held that the university violated the students' free speech rights. But surely free exercise interests were also implicated by the university's decision. Indeed, Justice Byron White argued in dissent that the free exercise clause was a more appropriate basis for resolving the case.4

Widmar has been followed by a long line of cases applying the free speech clause of the First Amendment to protect religious expression.5 In Good News Club v. Milford Central School, for example, the Court ruled that a school district's refusal to allow a religious organization to meet on school was a free speech violation. Justice

property after hours David Souter, in dissent, described the religious nature of the Good News Club's activities in considerable detail before concluding that the club's program constituted "an evangelical service of worship calling children to commit themselves in an act of Christian conversion." The majority, while not disputing Souter's description, nevertheless concluded that the case was properly adjudicated under the free speech clause. Justice Clarence Thomas explained that the majority saw "no reason to treat the club's use of religion as something other than a viewpoint merely because of any evangelical message it conveys."7

Finally, in Texas Monthly v. Bullock the issue was a Texas statute exempting religious periodicals published by religious organizations from sales and use taxes applicable to secular journals. Five justices concluded that the statute violated the establishment clause, although for different reasons. A sixth justice, Justice White, argued that since the statute discriminated on the basis of content, it violated the press clause of the First Amendment. Justice Harry Blackmun's concurring opinion agreed that the statute violated the establishment clause, but Blackmun carefully elaborated on the entanglement of constitutional values and provisions in the case:

"The Texas statute at issue touches upon values that underlie three different clauses of the First Amendment: the free exercise clause, the establishment clause, and the press clause. As indicated by the number of opinions in this case today, harmonizing these several values is not an easy task."8

The principle of equal protection requires that government justify burdens imposed on "suspect classes" of people, including classifications based on race, gender, or religion. The religion clauses mandate government neutrality toward religion, but, as Justice John Harlan stated in Waltz i~ Tax Commission, "the requirement of neutrality . . . requires an equal protection mode of analysis."9 Thus, the Court found a violation of both equal protection and the First Amendment in cases in which Jehovah's Witnesses are denied the right to use the public parks for a religious purpose, while members of other religious denominations are provided access to public property for their religious activities."

Professor Kent Greenawalt explains how equal protection principles apply to religion: "Overarching the tests of the religion clauses is the equal protection principle that suspect classifications, including religious classifications, are sustainable only when necessary to achieve a compelling state interest." Indeed, religious groups are defined by many, if not all, of the characteristics commonly used by courts to define a suspect class.

"In terms of the basic concern that legitimates heightened scrutiny under the equal protection clause, that of rigorously reviewing laws when the results of the political process cannot be trusted, laws discriminating against religious groups require the same level of scrutiny directed at laws discriminating against racial and ethnic groups."12

In Larsen v. Valente'13 the Supreme Court noted that "the clearest command of the establishment clause is that one religious denomination cannot be officially preferred over another." Equal protection principles require a similar conclusion.

Religion clause protection also overlaps basic privacy and autonomy principles. Indeed, the core idea of religious liberty is, in essence, an autonomy right. It protects the individual's self-defining decisions regarding how or whether to relate to the divine and how to answer ultimate questions about life and meaning.

One of the seminal privacy cases recognized that parents have the right to send their children to a religious school. In Pierce v. Society of Sisters, plaintiffs argued that a state law requiring all children to attend public school "conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training."14 The Court agreed and struck down the challenged state law, reasoning that "the child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."15

The Court also emphasized the privacy and autonomy dimension of religious freedom in Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos,'16 in upholding amendments to Title VII of the Civil Rights Act permitting religious organizations to discriminate on the basis of religion in hiring staff. The Court recognized that "religious organizations have an interest in autonomy in ordering their internal affairs" and that the Constitution protects "the authority to engage in this process of self-definition" from state interference. 17

Conceptually, the very genius of the religion clauses is that they secure the right of Americans, individually and in groups, to carry out their religious practices free of government coercion or interference. At its core, then, religious freedom is a privacy and autonomy principle.

Recognizing that fundamental rights are closely intertwined is a beginning of the discussion but not its end. It is equally important to grasp just how serious is the threat to the panoply of rights from the erosion of one.

First Amendment principles of free religion, speech, press, and assembly have a philosophical foundation. They are grounded in the primary value of the individual. The supreme value under our constitutional order is not the community but the individual. Yet this fundamental commitment began to shift long before September 11.

One example of this is the Supreme Court's declaration that protecting the free exercise of religion as a fundamental right would make "each conscience a law unto itself," resulting in "sheer anarchy."8 But if protecting the rights of conscience leads to anarchy, then this calls into question our method for protecting other First Amendment rights. Free speech, press, and assembly are also rights of conscience, along with religious freedom. If government can restrict religious freedom so long as it crafts laws that do not overtly target religion,'9 then why cannot the same method be used to restrict speech and press?

That the courts have not yet descended into such an assault on our other freedoms does not negate the fact that such a foundation has been definitely and firmly established.

The new war on terrorism is likely to result in restrictions on speech and press, in the name of national security, long before religion is directly restricted. Already some voices have been heard suggesting that publishing the president's itinerary constitutes "treason." In times of war national security does justify a certain amount of "prior restraint" on the publication of war-related information such as troop movements, military strategies, and the like. This is hardly controversial.

The war on terrorism, however, carries with it unique threats to religious liberty precisely because of the religious dimensions to the war. We may stop short of rounding up Muslims in America and yet, through racial profiling and discrimination, jeopardize the freedom of American Muslims. While restrictions on the dissemination of the Muslim faith, generally, may be unlikely, it is not hard to imagine that suspected terrorists could eventually be arrested and charged with teaching anti-Americanism in the name of Islam. The war on terrorism necessarily invokes a war on an ideology of hate that advocates the use of violence. Indeed, curricula of Islamic schools could well be scrutinized and actual teaching monitored to ensure that terrorist propaganda is not disseminated here at home. Such "excessive entanglement" with religious institutions and teaching implicate both religion clauses, as well as rights of free speech, press, and assembly. Even if such teaching stopped short of posing a "clear and present danger," under historical legal standards such restrictions would seem necessary and acceptable to many, if not most, Americans. An historical precedent for government intrusion into the worship activities of churches is found in the sanctuary movement during the Reagan years, when the FBI infiltrated churches suspected of harboring illegal refugees of Central American nations. Such government monitoring has a decidedly chilling effect on the faith community and on its communal worship experience.

But no right is an island. A European visitor to America not long ago was heard to remark that Americans were "too free." This may be about to change.

Alan E Brownstein, "Interpreting the

Religion Clauses in Terms of Liberty,

Equality, and Free Speech Values—A

Critical Analysis of 'Neutrality Theory'

and Charitable Choice," Notre Dame

Journal of Law, Ethics & Public Policy

(1999): vol. 256, 257.

'Cantwell v. C'onnecticut, 310 U.S. 296, 307 (1939).

'Murdock v. Pennsylvania, 319 U.S. 105,108, 109 (1942).

'454 U.S. 263, 282 (1981).

See, eg., Lamb's Chapel v. Center Moriches

Union Free School District, 508 U.S. 384

(1993); Rosenberger v. Rector and Visitors of the

University of Virginia, 515 U.S. 819 (1995);

Good News Club v. Milford Central School, 121

U.S. 2093 (2001).

Good News Club v. Milford Central School, 121 U.S. 20903,2117 (2001).

'Ibid., 2102, n. 4.

Texas Monthly v. Bullock, 489 U.S. 1, 26 (1989).

'397 U.S. 664, 696 (1969).

"Niensorko v. Maryland, 340 U.S. 268, 272,

73 (1951); Fowler u. Rhode Island, 345 U.S. 67, 70 (1953) (Frankfurter, J.,


""Religion as a Concept," California Law Review 72(1984): 753, 797.

"E. Brownstein, "Harmonizing the Heavenly and Earthly Spheres: The Fragmentation and Synthesis of Religion, Equality and Speech in the Constitution," Ohio State Journal 51(1990): 89, 112.

'456 U.S. 228 (1982).

"268 U.S. 510, 532 (1924).

Ibid., p. 535.

"483 U.S. 327 (1987).

"Ibid., pp. 341, 342.

"Smith, supra, at 1606.

"This is precisely the state of our constitutional law: "facially neutral laws of general applicability" can restrict religion severely yet be subject to virtually no judicial review.

Alan Reinach is an attorney with a specialty in church-state relations. He puts together a regular religious liberty radio program called Freedom's Ring. He writes from Thousand Oaks, California.
Article Author: Alan J. Reinach

Alan J. Reinach is Executive Director of the Church State Council, the religious liberty educational and advocacy arm of the Pacific Union Conference of Seventh-day Adventists, representing five western states: Arizona, California, Hawaii, Nevada and Utah. His legal practice emphasizes First Amendment religious freedom cases, and religious accommodation cases under Title VII of the Civil Rights Act of 1964 and related state civil rights laws. Reinach is also a Seventh-day Adventist minister who speaks regularly on religious freedom topics, and is the host of a nationally syndicated weekly radio broadcast, “Freedom’s Ring.” He is the principal author and editor of Politics and Prophecy: The Battle for Religious Liberty and the Authentic Gospel, and a frequent contributor to Libertymagazine.