.- A legal expert in religious freedom believes that President Barack Obama’s recent prayer proclamation reflects a wider problem of viewing constitutional protections for religious liberty as being limited to “mere belief.”
“I don’t know that the president intentionally wrote it in this fashion,” said Robert Tyler, general counsel for the non-profit legal group Advocates for Faith and Freedom.
However, he explained to CNA on May 2, the wording of the proclamation “reflects a real problem” in the understanding of religious freedom.
On May 1, President Obama issued a proclamation declaring May 3 as a National Day of Prayer in the United States.
Since 1952, every U.S. president has signed a National Day of Prayer proclamation calling on Americans to give thanks for their blessings and seek divine guidance for the future.
In his proclamation, Obama offered thanks for a “democracy that respects the beliefs and protects the religious freedom of all people to pray, worship, or abstain according to the dictates of their conscience.”
Religious freedom has become a hotly-debated issue after the Obama administration issued a mandate that will require employers to offer health insurance plans that cover contraception, sterilization and drugs that can cause early abortions, even if doing so violates their religious beliefs.
Critics of the mandate argue that the Obama administration is failing to respect the right to religious freedom, treating it as though it is merely a right to worship, but not to live out one’s beliefs.
Tyler explained that the American founders “absolutely” intended for the First Amendment’s religion freedom protections to apply to actions as well as beliefs. This view was carried down throughout most of America’s history, he said.
However, in 1990, the Supreme Court held in Employment Division v. Smith that laws which burden religion are acceptable as long as they are “neutral and generally applicable,” he said.
This ruling “has created quite a problem for the free exercise of religion in America today,” explained Tyler, observing that it has led to the idea that religious freedom merely means “believing whatever you want to believe” and does not extend to cover conduct.
As a result, he said, there have been increasing attempts in recent years to burden the free exercise of religion.
But for two centuries before prior to the ruling “basically everybody understood” religious freedom as a broad liberty that extends to actions as well as beliefs.
This view is illustrated in the 1963 Sherbert v. Verner case, in which the Supreme Court held that laws imposing a burden on the free exercise of religion are subject to the highest level of scrutiny, he said.
This previous understanding, which was present throughout the vast majority of American history, is “much more consistent” with what the American founders meant, Tyler explained.
He observed that the First Amendment was written to provide a “really vast” protection for religious freedom.
Tyler also asserted that several members of the Supreme Court – including Justice Antonin Scalia, who wrote the majority opinion in Employment Division v. Smith – probably did not intend for the decision to be used in the way it has been.
He believes that if given the chance, the Supreme Court would likely attempt to “curtail the impact” of the 1990 case.
Obama’s National Day of Prayer proclamation, he said, reflects the “errant decision” of the Supreme Court in 1990, which should be abandoned in favor of a fuller and more accurate understanding of the First Amendment.