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John Whitehead's Commentary

Doing Away with the Right to Be Different: The Assault on Religious Freedom

John Whitehead
"If we give in on religious liberty, we will lose credibility with oppressed peoples around the world. We give a license to the states that violate human rights. We fail to assist totalitarian states in their movement toward freedom. And, most of all, we cease to be true to ourselves—cease to be a nation that, more than any other, testifies to the compatibility of modernity and religion."—Joseph Bottum, editor of First Things (June 28, 2010)

The First Amendment is a marvelous thing. It is what stands between us as citizens and an authoritarian regime. It affirms our right to freedom of speech, freedom of the media, freedom of religion and the right to assemble and protest—in other words, that we not only have the right to be difficult but different, as well, and cannot be discriminated against for being either.

Unfortunately, caught up in our politically correct sensibilities, we have largely lost our appreciation for those rabble rousers who exercise their First Amendment rights. Nowhere is this more evident than in society's increasing intolerance for religious freedom—religion tending to breed followers who, oftentimes at odds with society's mores, are both difficult and different. This tension between political correctness and religious freedom is heightened in such cases as Phelps v. Snyder and Christian Legal Society (CLS) v. Martinez, which present scenarios that test our tolerance for expressive yet politically incorrect First Amendment activities.

In the first, Phelps v. Snyder, which will be argued before the U.S. Supreme Court this fall, the justices will be asked to decide whether the First Amendment protects the right of a rabidly anti-homosexual Christian church to protest at high-profile funerals and spout hateful rhetoric.

The second case, CLS v. Martinez, which is far less colorful yet also involves what critics perceive to be religiously based, anti-homosexual sentiment, was recently decided by the Supreme Court. At issue was whether the CLS student group at the University of California Hastings Law School could restrict its membership to individuals who share their Christian beliefs, particularly as they relate to sexual conduct, and still be granted access to campus resources and forums.

The Court's 5-4 ruling against CLS reeked of anti-religious prejudice. In concurring with the majority, Justice Stevens declared, "Although the First Amendment may protect CLS' discriminatory practices off campus, it does not require a public university to validate or support them." That's where the Supreme Court got it wrong: There's no "may" about it. The First Amendment clearly protects CLS' right to exclude those whom they believe violate the tenets of their religion, on or off campus. To put it another way, whether or not one approves or agrees with CLS' point of view, they have a First Amendment right to be different and stand apart from the crowd. Yet in ruling as it did, thereby imposing a forced integration upon the Christian student group, the Supreme Court succeeded in enshrining an oppressive political correctness as a central tenet in American society and in American university life and undermining not only the freedom of association but the freedom of religion, as well.

The expressive freedoms enshrined in the First Amendment were not grouped together by chance—they are interconnected and, thus, will rise and fall together. As historian Roland Barton recognizes: "All freedoms hang together. Civil liberties scarcely thrive when religious liberties are disregarded, and the reverse is equally true." That is why governmental attempts to diminish religious freedom are so dangerous: if religious believers lose their rights, we all lose our rights.

Frankly, all Americans—whether or not they subscribe to a particular religious belief—should be worried that the expansive right to "freedom of religion," the bedrock of the First Amendment, is systematically being dismantled by the courts. Indeed, in recent years, the federal courts have chipped away at religious freedom to such an extent that even non-verbal forms of expression in public have been deemed to be illegal (a coach bowing his head out of respect while student athletes offer a pre-game prayer; a student wind ensemble's choice of an instrumental arrangement of "Ave Maria" at their high school graduation ceremony, etc.). Consequently, we have gone from a nation where religious freedom was highly prized to one in which religion is being privatized and forced out of public institutions and public life.

As Christopher Lasch details in his book The Revolt of the Elites and the Betrayal of Democracy (1995), an educational and governmental elite (which includes the courts) in American society that views religion as irrelevant has come to predominate:

Public life is thoroughly secularized. The separation of church and state, nowadays interpreted as prohibiting any public recognition of religion at all, is more deeply entrenched in America than anywhere else. Religion has been relegated to the sidelines of public debate. Among elites it is held in low esteem—something useful for weddings and funerals but otherwise dispensable. A skeptical, iconoclastic state of mind is one of the distinguishing characteristics of the knowledge classes. Their commitment to the culture of criticism is understood to rule out religious commitments. The elites' attitude to religion ranges from indifference to active hostility.

Those who have adopted this secular outlook frequently cite the "wall of separation between church and state" as justification for censoring, silencing and discriminating against religious individuals, especially in the public schools. The threat posed by this extreme secularism is that religion and religious people are not merely kept separate from the school system but are instead forced into a position of utter subservience.

Rest assured, if this trend continues unchecked, it will not be long before "freedom of religion" is done away with altogether and replaced with a more restrictive, government-sanctioned "freedom of worship" that limits people of faith to worshipping in the privacy of their church, synagogue or home. However, as Joseph Bottum makes clear, there is a world of difference between the right to "freedom of religion" and "freedom of worship":

It's a small thing, really—the shift of a word, the coining of a new phrase. But the consequences are going to be bad, and the signal it sends of American retreat on human rights comes at a terrible moment. Think of it this way: If you have "freedom of religion," you can bring up your children in your faith, hold public processions, and print books. If you have only "freedom of worship" you can pray quietly in your home, as long as it remains out of public sight. "Freedom of religion" means you can stand on a street corner and proselytize everything from Catholicism to Mormonism to the cult of the sun god Ra. "Freedom of worship" means you can be executed for public conversion away from Islam. Worship is part of religion, but it is one of the least public parts—and thus one of the least involved in actual freedom.

This Orwellian shift in terminology has unfortunately been embraced by the Obama administration. As Bottum recounts:

The first signs of national withdrawal from concern about religious liberty came in November, at a memorial service for those slain at Ft. Hood, when President Obama used the phrase "freedom of worship" where more common American political language has always used the phrase "freedom of religion."

It seemed incidental at the time—certainly hardly anyone remarked on it—but he used the phrase again in Japan a few days later. And then again in China. It quickly became the administration's favored formula for speaking about religious liberty. In her major foreign-policy address at Georgetown in December, Secretary of State Hillary Clinton used the phrase repeatedly, announcing that the change in language was deliberate.

Do not be fooled into thinking that this rephrasing of the freedom of religion coupled with the Supreme Court's forced imposition of integration and homogeneity is anything less than a subtle yet noxious re-orienting of our First Amendment rights. Yet while the cultural landscape has changed greatly since the founding of the country, one thing must not: America should still stand for freedom and pluralism. What this demands is an equal voice for all viewpoints. This includes religious freedom in all its varied aspects.

If we do not maintain this ideal of religious freedom, then the only alternative is a form of secular society and government that respects no one's freedom or opinions at all. After all, as history illustrates, a long secular trend always leads to authoritarian government and, in some extreme examples, to despotism.


Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at

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