A Department of Justice press release recently announced the “First Freedom Project,” which is billed as an effort “to strengthen and preserve religious liberty throughout the nation.” The announcement comes on the heels of President Bush’s proclamation for Religious Freedom Day (which was also virtually ignored by the press). Included in the initiative is a “Report on Enforcement of Laws Protecting Religious Freedom” over the last five years as well as a new website, www.firstfreedom.gov. The Report is a 23MB file but is worth the read.

Of note, according to the Report, from 1992 to 2005 complaints of sexual discrimination increased 6%, national origin discrimination complaints increased 8%, and racial discrimination complaints increased 9%. During the same period, complaints of religious discrimination increased 69%. The complaints included everything from students harassing each other to housing discrimination. This is not, by any means, a “Christian only” problem. The Report notes that since the terrorist attacks in 2001 there has been an increase in “bias crimes” against Muslims and other religions mistaken for Islam.

The Report and website both emphasize that the objective of the DOJ is to ensure the continued freedom of religion. The cited cases generally involved a person of faith experiencing some degree of discrimination based on a misunderstanding of Constitutional freedoms. To that end, the website notes that the DOJ will be organizing seminars “to educate religious, civil rights, and community leaders, attorneys, government officials, and other interested citizens about the laws protecting religious freedom.”

Some of the more salient quotes from the Report:

Citizens using community centers and other public facilities, and especially students at public schools, often are told by government officials that they cannot express their religion while on public property or in government-sponsored programs, based on a mistaken belief that the Constitution’s prohibition on state establishment of religion bars individual religious expression. But as the Supreme Court has stressed, “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.”

Schools, senior centers, public parks, and other public facilities are not religion-free zones, and individuals may not be denied access, or have their expression censored, simply because of their religion… Private religious speech that takes place on public property is not government religious speech forbidden by the Constitution.

Complaints of harassment based on religion were the most common problem addressed in the Civil Rights Division’s cases. Most involved complaints of indifference by schools to student-on-student religious harassment in public primary and secondary schools…  The second largest number of cases involved [complaints of restrictions on] religious expression.

In recent years, more people have come to believe that a municipal government that allows religious speech (by, for example, permitting a religious group to hold services in a community center) is somehow endorsing that speech and thus “establishing” a religion contrary to the Constitution. As noted by the DOJ, just because a private citizen uses religious speech on public property does not mean that the government endorses or establishes that religion. Truthfully, some local governments would be willing to err on the side of religious liberty if not for the potential penalties if they were wrong. Groups like the Americans United for the Separation of Church and State (AU) have explicitly threatened cash-strapped local governments with debilitating financial damages through litigation if they do not concede to their demands to remove or restrict some aspect of religious liberty.

The mere threat has caused some municipal governments to preemptively restrict religious liberties in order to ward off potential lawsuits. Previously, governments would be more likely to err on the side of allowing “too much freedom” with the risk that they might be perceived as “establishing” religion. (Similar to the premise in law that it is ‘better to let a guilty man go free than to imprison an innocent one,’ the belief was that to unjustly restrict a freedom was worse than to incorrectly allow one.) Now, because of the potential of six-figure court costs some municipalities are deciding to err on the side of “no perception of establishment,” even if such actions potentially infringe on Constitutional liberties. The simple reason is economics. If they are accused of “establishing religion” they could be sued; even if they win their defense, they’ll have an enormous legal bill. On the other hand, if they are accused of being too “restrictive” on religious expression, that same threat of exorbitant legal costs is not there. (Though the law works in both directions, recent trends have indicated that the greater financial liability is from organizations protesting the perceived establishment of religion.)

The financial aspect of “establishment clause” lawsuits was publicized by the Public Expression of Religion Act (PERA), which several sessions of Congress have discussed but not passed (text can be viewed here or here). (It has passed the House but not the Senate.) The premise of the act was to remove a financial reward from an unintended recipient. Several decades ago, civil rights laws were enacted to enable a person who sued the government on Constitutional issues to be awarded court and other costs if they won. The intent was to give non-affluent victims of discrimination the financial means to use the courts to secure their Constitutional rights. That same law is now being used by activist legal organizations to wage a war of economics on local governments. The mere threat of litigation is sometimes enough to get a municipality to accede to the activist organization, whether or not they were right to do so. Thus Constitutional liberties are being determined (and restricted) by activist legal organizations, rather than by the courts, which are designated the interpreters of Constitutional law. Rather than encourage litigation to secure liberties, the law is now being used to discourage judicial action in order to restrict liberties. In some cases, organizations like the ACLJ, Becket Fund, or Rutherford Institute have come to the aid of local governments, but the financial risk is still there.

The day after the “First Freedom Project” announcement, the AU posted an article deriding it as a means to “undermine church/state separation and placate the religious right.” The AU was particularly put off by the DOJ’s support of the Salvation Army’s right to hire people that observed its beliefs even if it contracted work with the government, saying “…thanks to the Justice Department, the Salvation Army” could now discriminate. While the DOJ did file a brief in support of the Salvation Army, it was actually the judicial branch of the government that made the ruling and is therefore the one “to thank.”

The DOJ specifically noted that federal law protects religious organizations by allowing them to hire in accordance with their faith; by the same token, the law protects those working for a secular organization from religious discrimination. The law has been Constitutionally upheld. Thus, religious liberty is protected in both circumstances. If you attempt to argue that the Salvation Army violated the religious liberty of the non-Christians that it fired (as the AU did), you essentially establish the “heckler’s veto.” One person can join a religious organization with which they disagree and adversely affect the religious liberties of everyone else that joined the organization because they agreed with it. The courts have not indicated that there is a right to such a heckler’s veto. Notably, the AU didn’t have a positive thing to say even though they and the DOJ reportedly have similar goals; instead, the AU framed it as another effort by the Bush administration “to destroy true religious freedom.”

A public initiative to support the freedom of religion is a welcome sight in modern times that seem to prefer a separation of religion and public life. Perhaps if the DOJ is successful in its public education efforts common misperceptions of Constitutional liberties will be corrected and religious liberty restored to its original place as America’s “First Freedom.”

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