The First Amendment religion clauses: ‘Full-throated’ freedom or ‘mere’ toleration?

Last week I wrote my column on “The First Amendment: Alive and well?” in which I noted the revolutionary impact of the Amendment on religious freedom in particular and on human rights in general. 

The First Amendment has indeed proven itself to be a magnificent legal and political engine driving the cause of soul freedom and freedom of conscience in America first, and subsequently as a shining beacon of light and hope to a suppression-weary world.

This week I want to address the current tension that has arisen among various groups of Americans over what was the Founding Father’s ‘original intent,’ and how should the First Amendment be applied to today’s ever-more ethically and religiously diverse populace.  Columnist Judd Birdsall has conveniently and helpfully divided and labeled the two camps as “First Freedom” and “Article 18,” personified by former Secretary of State Mike Pompeo (2018-2021) and current Secretary of State Antony Blinken.

Pompeo was the most openly evangelical Secretary of State since William Jennings Bryan (1913-1915) in the Woodrow Wilson Administration. Pompeo, as Secretary of State, took virtually unprecedented actions and initiatives to promote religious freedom worldwide. His unprecedented efforts yielded encouraging results with two very well attended ministerial events at the State Department, including one that was hailed as the largest meeting promoting religious freedom ever held at the State Department.

Pompeo and then-President Trump were leading exponents, along with the late Associate Justice Antonin Scalia, of the First Freedom view that argues that religious freedom is not just first sequentially because it touches on questions of “ultimate significance and the freedoms of speech, press, and assembly are there to aid and buttress the ‘first freedom’.”

Proponents of the Article 18 view, vocalized by current Secretary of State Blinken, argue that religious freedom, while crucially important, is “co-equal” with the freedoms of speech, press, assembly and peaceful redress of grievance.

I believe, however, based on my observation and experience, that there is disagreement on an issue of fundamental importance at stake in this debate.

I had the privilege of serving as a Commissioner on the U.S. Commission on International Religious Freedom from 2001-2012. This Commission, set up by the passage of the International Religious Freedom Act, is an independent, federal government commission, not under the State Department or Congress, charged with monitoring the state of religious freedom in every country in the world. They are required to write an annual report about the state of religious freedom in each country, followed by recommendations to both the President and the Congress on ways in which American foreign aid can, and should be, used to promote religious freedom.

The Commission is structured to be extremely bi-partisan. When you have a Democrat president, for example, he appoints three commissioners and the Democratic leader in the House and in the Senate nominate one commissioner each and the Republican leaders in the House and Senate nominate two each. So, the President’s party has a one-vote majority (5-4) and it takes six votes for the Commission to act.

During my years there, we would periodically undertake fact-finding trips to various countries around the world to measure for ourselves how much religious freedom was actually afforded to citizens in those countries. Undoubtedly the most memorable fact-finding trip we undertook during my tenure on the Commission was an almost two weeks visit to Communist China and Tibet in 2005.

This visit took place during what turned out to be a temporary “spring of hope” when the Chinese Communist government appeared to be relaxing many of its very oppressive policies against Christians in that country. Alas, the promised reforms were still-born and the situation has degenerated drastically for all religious faiths in China, with the Uyghur Muslims suffering what can only be called a genocidal policy.

Invariably, on these site visits, we Commissioners went to great lengths to make it crystal clear to the host country that the USCIRF standard was not America’s First Amendment standard that guaranteed complete religious liberty and freedom from government interference with people’s religious free expression rights. We often said that we would recommend it, but we could not demand it because that would interfere with the host nation’s sovereignty.

The USCIRF standard was the international one – the one codified in the United Nations’ Universal Declaration of Human Rights, Article 18, which reads:

Everyone has the right to freedom of thought, conscience and
religion, this right includes freedom to change his religious belief, and
freedom, either alone or in community with others, and in public or
private, to manifest his religion or belief in teaching, practice,
worship and observance.

So, what is the difference between the First Amendment and the Universal Declaration’s Article 18? The First Freedom position legally restricts the government from interjecting itself into the religious experience and practice of its people.

Quite simply, the First Amendment guarantees people from government interference with their religioThe Article 18 position merely guarantees some level of toleration for dissenting faiths in a society where Islam or Communist oppression may take over and rescind government support or toleration. 

For example, when we were in China it became apparent that the Chinese officials were increasingly irritated that we were not more impressed with the comparatively greater toleration they had been granting people of faith.

In our final exit dinner with the Chinese officials, I was designated to explain the Commission’s position. I did so in the following way: “It has become apparent to us that you are frustrated that our team has not been more impressed with the greater degree of toleration you have been affording many religious groups in your country. We have noticed.  However, while it is a bigger cage, and it is a gilded cage, it is still a cage. And that is toleration, not freedom.”

Sadly, history has proven our position correct since the Chinese have cracked down drastically and have made the cage very small.  

Under Article 18, each country could make Islam or some other religion, the official state religion supported by the people’s taxes. Under the First Freedom system that would not or could not happen.

In other words, under the First Freedom position, the people are sovereign and no religion can discriminate against them or hamper their mission. 

As Justice Arthur Goldberg wrote over a half-century ago in the famous Supreme Court prayer decision (School District of Abington, Pennsylvania et.al V. Schemp et.al):

“The fullest realization of true religious liberty requires that government neither engage in, nor compel religious practices, that it effects no favoritism among sects or between religion and nonreligion. . .”  then Justice Goldberg went on to declare that “the attitude of government toward religion must be one of neutrality.” Justice Goldberg then went on to say that even “untutored devotion to the concept of neutrality can lead to approval of results which partake not simply of that non-interference and non-involvement with the religious which the constitution demands, but of a brooding and pervasive devotion to the secular and a passive or even active, hostility to the religious. Such results are not only not compelled by the Constitution, but it seems to me “are prohibited by it.”

Justice Goldberg warns, quite correctly, that even with the government neutrality required by the First Amendment freedom from government interference in religion must be carefully monitored. With mere toleration, you will always have government abuses against religion.

The conflict between First Freedom advocates and Article 18 supporters is clearly a “full-throated” freedom vs. “mere” toleration debate. Those who deny that this is the case either fail to comprehend the problem, or they support mere toleration.