SCOTTSDALE, Ariz. (BP)--This Friday's celebration of Constitution Day together with recent news coverage of plans to build a mosque near Ground Zero and a small church's abandoned intent to burn a Quran on Sept. 11 have focused our attention on our most cherished liberty: freedom of religion.
But the reality is that very few court decisions protecting religious freedom have come along since the U.S. Supreme Court's Oregon Dept. of Human Services v. Smith decision in 1991. And there is a significance to this that may be lost on many Americans.
In that case, the court held that the part of the First Amendment that says, "Congress shall make no law ... prohibiting the free exercise [of religion]" does not protect individuals and churches from neutral, generally applicable laws (like zoning ordinances, for example). Such laws, even if they have a disproportionate effect on the practice of religion, will usually be upheld.
Lawyers have adjusted to this change in the law by focusing cases involving religious rights on the freedom of speech instead of the Free Exercise Clause ... but not always successfully. And Congress has attempted to remedy the problem by passing legislation ... but the usefulness of these laws has been severely hampered by courts that read them very narrowly.
The result is religious freedom has suffered.
At the Alliance Defense Fund, for example, we hear from churches just about every week who simply cannot afford a church building because of all the restrictions local municipalities are placing on use of land for religious purposes. We've also represented churches that are being hampered by local laws that prohibit them from performing time-honored religious services like feeding the homeless.
Many people have no idea that this is going on, and it is certainly not what our Founding Fathers intended. James Madison, the author of the First Amendment, wrote in his "Memorial and Remonstrance Against Religious Assessments" that the "religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right." Religious exercise should only be restricted by government officials -- even inadvertently -- if those restrictions further compelling interests, such as national security.
The good news is we are still winning some cases based on the Free Exercise Clause. Faith Center Evangelistic Ministries in Contra Costa, Calif., was prohibited from using a public meeting room at the local library. Library officials admitted that the room could be used for meetings by other groups like the Ku Klux Klan, but worship services were prohibited. After a long litigation process, the federal court ruled in 2009 that this policy violated the church's rights under the Free Exercise Clause.
And just this past March, a federal judge in Phoenix put a stop to the city's ordinance which had the practical effect of prohibiting the ringing of church bells but placed much lighter constraints on sounds of an equal decibel level, like the music of ice cream trucks. In rejecting the city's motion to dismiss the case, the court found that this differential treatment was sufficient to state a claim under the Free Exercise Clause.
These victories demonstrate that even though freedom of religion has been wounded, it's certainly not dead. This protection doesn't depend on whether religious beliefs are offensive or convenient. As Thomas Jefferson said in his "Notes on the State of Virginia," "The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are 20 gods, or no god. It neither picks my pocket nor breaks my leg."
Kevin Theriot is senior counsel with the Alliance Defense Fund (www.telladf.org), a legal alliance that protects and preserves religious liberty, the sanctity of life, marriage and the family.