News/CNA): A legal expert in religious freedom believes that
President Barack Obama’s recent prayer proclamation reflects a
wider problem of viewing constitutional protections for
religious liberty as being limited to “mere belief.”
“I don’t know that the president intentionally
wrote it in this fashion,” said Robert Tyler, general counsel
for the non-profit legal group Advocates for Faith and Freedom.
However, he explained to EWTN News on May 2, the
wording of the proclamation “reflects a real problem” in the
understanding of religious freedom.
On May 1, President Obama issued a proclamation declaring May 3
as a National Day of Prayer in the United States.
Since 1952, every U.S. president has signed a
National Day of Prayer proclamation calling on Americans to give
thanks for their blessings and seek divine guidance for the
proclamation, Obama offered thanks for a “democracy that
respects the beliefs and protects the religious freedom of all
people to pray, worship, or abstain according to the dictates of
Religious freedom has become a hotly-debated issue after the
Obama administration issued a mandate that will require
employers to offer health insurance plans that cover
contraception, sterilization and drugs that can cause early
abortions, even if doing so violates their religious beliefs.
Critics of the mandate argue that the Obama
administration is failing to respect the right to religious
freedom, treating it as though it is merely a right to worship,
but not to live out one’s beliefs.
Tyler explained that the American founders
“absolutely” intended for the First Amendment’s religion freedom
protections to apply to actions as well as beliefs. This view
was carried down throughout most of America’s history, he said.
However, in 1990, the Supreme
Court held in Employment Division v. Smith that laws which
burden religion are acceptable as long as they are “neutral and
generally applicable,” he said.
This ruling “has created quite a problem for the
free exercise of religion in America today,” explained Tyler,
observing that it has led to the idea that religious freedom
merely means “believing whatever you want to believe” and does
not extend to cover conduct.
As a result, he said, there have been increasing
attempts in recent years to burden the free exercise of
But for two
centuries before prior to the ruling “basically everybody
understood” religious freedom as a broad liberty that extends to
actions as well as beliefs.
This view is illustrated in the 1963 Sherbert v.
Verner case, in which the Supreme Court held that laws imposing
a burden on the free exercise of religion are subject to the
highest level of scrutiny, he said.
This previous understanding, which was present
throughout the vast majority of American history, is “much more
consistent” with what the American founders meant, Tyler
that the First Amendment was written to provide a “really vast”
protection for religious freedom.
Tyler also asserted that several members of the
Supreme Court – including Justice Antonin Scalia, who wrote the
majority opinion in Employment Division v. Smith – probably did
not intend for the decision to be used in the way it has been.
He believes that if given the chance, the Supreme
Court would likely attempt to “curtail the impact” of the 1990
Day of Prayer proclamation, he said, reflects the “errant
decision” of the Supreme Court in 1990, which should be
abandoned in favor of a fuller and more accurate understanding
of the First Amendment.