(Un)free to Believe 

What's the difference between the Founders' definition of religious freedom and what we're seeing today?

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Religious freedom is one of those rare principles that both the Left and Right believe to be among the most important issues of our time. But what is religious freedom? The definition shifts depending on who is talking and what they want to use it for.

During the 2015 legislative session, Utah lawmakers refused to pass basic housing and employment protections for LGBT people without also simultaneously passing an enhanced version of religious freedom, allowing certain businesses and institutions to be exempt from obeying the law if religious beliefs so dictated.

The resulting bill was co-written by Robin Fretwell Wilson, a leading Religious Right operative who advocates that religious individuals who own businesses should be exempted from civil-rights laws based on their religious beliefs. Wilson also wrote a 2010 paper arguing that government employees should be exempt from providing government services to those with whom they disagree on religious grounds.

Just prior to the Supreme Court issuing its June 26 decision legalizing same-sex marriage, Utah Sen. Mike Lee, R-Utah, introduced legislation in Congress to prevent any federal agency from denying a tax exemption, grant, contract, license or certification to an individual, association or business that may discriminate against LGBT individuals or couples based upon religious beliefs.

So what is the real definition of religious freedom? The first religious liberty law ever passed was written by none other than Thomas Jefferson. The Virginia Statute for Religious Freedom was the Founding Father's way of countering the early colonies, which in the 1700s existed as miniature theocracies. The bill not only removed the Anglican Church as the official state church, but provided that no one can be compelled to attend any religious institution or to underwrite it with taxes; that individuals are free to believe as they will; and that their beliefs or non-beliefs "shall in nowise diminish, enlarge, or affect their civil capacities."

How important was this groundbreaking concept to Jefferson? On his tombstone, he listed his top three accomplishments in life: writing the Declaration of Independence, founding the University of Virginia and writing the Virginia Statute for Religious Freedom. Even his presidency wasn't as important.

The bill was then ushered into law by James Madison, just one year before he traveled to Philadelphia to become one of the principle authors of the U.S. Constitution.

Religious freedom couldn't be more clear: It is a shield to protect the beliefs of U.S. citizens from government and powerful institutions, but it also means that their religious beliefs can in no way be used to either elevate or diminish their capacity as citizens, or used to affect the civil capacities of others.

That definition was put to the test during the civil-rights era, when business owners sought exemptions from civil-rights laws—such as desegregation—based on their religious beliefs. Many claimed that the government had no right to force them to serve people of color because it was against their sincerely held religious beliefs. Those arguments were quickly shot down in the courts, because the government was not writing a law dictating anyone's beliefs—only that they must treat people equally in the public square.

Congress agreed in 1993, when it passed the Religious Freedom Restoration Act (RFRA). Spurred by Employment Division v. Smith, a case that involved American Indians in Oregon being denied state benefits because they were fired for using peyote in religious ceremonies, it passed with wide bipartisan support and, unlike some of the recent state versions of the RFRA, specifically limited itself to actions taken by the government against individuals.

So what's the difference between the Founders' definition of religious freedom and what we're seeing today? I contacted Sen. Lee to ask him how he defines religious liberty. In an email, he says he believes it to be "[T]he right of individuals and associations to form their own religious beliefs and to act on those beliefs in private and public life. Government's role is to protect that universal freedom, and the space it provides people of all faiths, and no faith at all, to live out the dictates of conscience."

That sounds pretty close to the original definition. But it also seems at odds with the provisions inside of the Senator's new legislation, and with what the Utah Legislature passed earlier this year. The ability to pick and choose one's beliefs or non-beliefs—and to change one's mind—are paramount. But according to Jefferson and Madison, real religious freedom means no individual, organization, business, institution or government has the right to wield beliefs like a sword—forcing others to choose between their individual conscience, or accessing their civil capacities.

It is already, and properly, unconstitutional to force religions, churches or clergy to perform religious ceremonies that violate their beliefs. But shielding businesses, organizations or institutions that are actively discriminating based on religious beliefs isn't a protection of religious freedom. It could more closely be defined as a violation of religious freedom.

Eric Ethington is a journalist, activist and researcher. He also works for Political Research Associates. Follow him on Twitter @EricEthington.

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