‘Covenantal thinking created an American national identity’: Religious freedom in America

Experts from around the country convened Thursday to discuss the evolution of religious liberty in America at Utah Valley University’s annual First Amendment Conference.

Lawyers and academics argued in favor of religious liberty, though some claimed that religion is too institutionalized in the government — or too little.

What does religious freedom mean?

In order to establish just how much religion is permitted in the public sphere, speakers explored the meaning of religious freedom at the time of the American Founding.

In early American history, Catholics, Quakers and other non-Protestant Christians suffered from social exclusion and were prevented from sharing their voices in government.

According to Michael Briedenbach, a history professor at Ave Maria University, this exclusion drove colonists to develop stronger laws protecting their right to practice religion.

He spoke at length about the Establishment Clause of the First Amendment, which prevents the federal government from “establishing” a national religion — though many people disagree about what “establishing” means in this context.

Historically, it meant that the government could not create a state religion, or a “Church of the United States.”

Troy Smith, a professor of government and law at UVU, characterized the relationship between religious people and a government that allows them to practice without discrimination as one bound by “covenant theory.”

“Covenantal thinking created an American national identity,” said Smith.

He emphasized that the covenant ties together a government and a people willing to preserve religion in a healthy, moral way that does not intrude on the rights of others.

Smith said this covenant can only hold when people respect one another and choose equality over dominance.

Justification under God, with liberty for all

Speakers outlined a relationship between justifying First Amendment rights with either secular reasoning or spiritual belief.

“We’ve always understood that humans have something in them that’s sinful, and because of that, we have to structure our government in a way that … doesn’t allow any one person to accumulate too much power,” said Owen Anderson, a professor of philosophy and religion at Arizona State University.

“I don’t see (pluralism) as an end to itself,” Anderson said. “The whole saying is ‘e pluribus unum,’ (not just) ‘pluribus.’ … If you only have the diversity and the plurality, you don’t have anything that holds you together.”

Timothy Sandefur, vice president for legal affairs at the Goldwater Institute in Arizona, and a self-described libertarian atheist, posited that America would do better if Christianity wasn’t used to justify it — saying that that was exactly what Thomas Jefferson, writer of the Declaration of Independence and advocate of the Bill of Rights, didn’t want.

“The separation of church and state has been good for religion as well as the state,” said Sandefur. He said that efforts to characterize America as a Christian nation actually detract from religious principles.

“(Separation of church and state has) made America the most religious modern country because there is a flourishing competition among … religious groups,” he said.

“Churches are there caring more about what people think and need in their lives, as opposed to an established church, which only cares about what politicians think and need in their lives.”

A ‘new era’ for religious freedom in America

Michael Erickson, a legal partner at Ray Quinney & Nebeker, argued that the conservative makeup of the current Supreme Court has created a “new era” for religious liberty and the laws governing it.

Particularly, panelists covered two upcoming Supreme Court cases — Oklahoma Statewide Charter School Board v. Drummond and St. Isidore of Seville Catholic Virtual School v. Drummond.

In both cases, the state of Oklahoma declined to fund Catholic charter schools on the basis that using public funds on a religious school is unconstitutional.

It is likely that the Supreme Court’s conservative majority, which has already ruled in some cases that states must fund religious education, will decide that Oklahoma must fund these schools, the panelists said.

This raised the question — if a state must fund Christian schools, can Muslim, Jewish or Hindu schools or schools attached to other faiths also receive government funding?

Panelists made the point that religious freedom does not only include Christians, it must also include other faiths.

“(America) truly (is) a melting pot and that doesn’t exclude religion,” said Erin Smith, associate counsel with First Liberty Institute, which defends religious liberty cases. “(First Liberty has) represented Muslims, we’ve represented Sikhs, we’ve represented … different denominations within the Christian faith, we’ve (represented) Judaism.”

Smith said that religious liberty cases had come to court more during the Biden administration.

She predicted that Donald Trump’s pro-Christian policies, including the new White House Faith Office, could erase policies that are “used against people of faith to punish them.”

Nevertheless, Erickson foresaw challenges where changes in the political administration might prevent charter schools for minority religions from receiving funding — where an administration might grant them funding one term, but a new administration might repeal them the next.

“There has to be a way to have plurality, have a vibrant religious community, what George Washington and John Adams imagined … and having this in a way that allows for a vibrancy without the government interfering and excluding on one hand or another … is not easy,” Erickson said. “(The Oklahoma cases are) not going to be … easy … to address.”

Smith mentioned religious liberty cases that have come up in First Liberty’s work recently, including a case where young California students were asked to read a book about transgenderism and then required to teach to younger students; a case in Washington, D.C., where a fire chief wanted to wear a beard for religious expression though his office precluded him from doing so; and a Pennsylvania chaplain whose supervisors wanted to review and censor his sermons before he gave them.

Smith praised plaintiffs for advocating for their religious beliefs.

“The more educated you are about your rights, (the) easier to know when you can stand up for them,” said Smith.

What about religious freedom in Utah schools?

Utah is a highly religious state, with nearly two thirds of the population being Christian, as the Deseret News previously reported.

And it isn’t just parents leading the push for religion — it’s also their children.

Joseph Kerry, an elected member of the Utah State Board of Education, said that he grew up in an era when courts had outlawed prayer and discussion about God in schools.

“That’s changing, and what surprises me is it’s by the students,” said Kerry. “Students … are now saying, ‘I want to pray,’ and ‘I want to pray in groups,’ ‘I want to pray with my friends before the sporting event.’”

He said he’s seeing this phenomenon in grades from elementary school all the way to senior year of high school.

“Anxiety in our young people is off the charts. Depression in our young people is off the charts, and this has led to high levels of suicidal ideation (and) actual suicide, and I think young people are just looking for … this elusive peace … that everybody talks about,” said Kerry.

“I don’t know if it’s really a search for God, I don’t know if it’s really a search for organized religion, but I do think there is this sense that there is something bigger than them … capable of bringing them something that they’re unable to find on their own.”