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Institutional Religious Freedom

June 4, 2019

Religious Freedom Institute Launches New Project for Institutional Religious Freedom

The Religious Freedom Institute launched its new project, Freedom for Religious Institutions in Society (FORIS) on May 29, 2019, at an inaugural event at Washington Hebrew Congregation in Washington, D.C. The event included addresses by Rabbi Yisroel Goldstein of the Chabad House of Poway, California, and Mark Rienzi, President of the Becket Fund for Religious Liberty. Their addresses were followed by a panel discussion of experts in the area of international religious freedom

Thomas Farr, President of the Religious Freedom Institute, opened the proceedings by noting that historically, American legal thought and law has focused on individual rather than corporate religious freedom. But for there to be truly “free exercise of religion,” there must be corporate religious freedom as well, since religion is normally practiced in and by communities of believers. Religious institutions must have freedom to follow the precepts of their faith, or they are not distinctly religious, fulfilling the religious function for which they are intended.

Timothy Shah, Vice President for Strategy and International Research of the Religious Freedom Institute, in introducing Rabbi Goldstein, observed that Jews continue to be vulnerable to anti-Semitism in many parts of the world. He pointed out that Felix Klein, a German commissioner charged with monitoring hostility to Jews, has said that rising anti-Semitism in Germany means Jews cannot safety appear in distinctively Jewish apparel in public. But Israeli President Reuvin Rivlin declared that Jews would never respond to anti-Semitism with defeatism. He said that the solution to religious intolerance is never for people to “duck their heads or lower their gaze.” There are, Shah indicated, both in the United States, and in the West generally, rising legal and cultural challenges to the right of religious communities to public expression of their faith and culture, with public expression of religious ideas and identity questioned.

Rabbi Goldstein, whose Poway Chabad suffered a deadly attack on April 27, killing one person and wounding three, said he “never thought that we will have to fight for religious freedom in America.” He noted that the last day of Passover, on which the attack occurred, was dedicated to the future, a future without hatred, jealousy, or war. He said that when he came to San Diego, he made a commitment to stay there regardless of adversity, a commitment to “Judaism and religious freedom.” He said that only miracles prevented a general massacre, because the gunman came with enough bullets to kill everyone. Noting that powers such as Egypt, Babylon, Rome, and others have fallen, he said that there is now a “fundamental flaw” in American society. Something has gone wrong, and we need to bring back religious freedom “as the Founding Fathers intended.” He proposed that there be a “moment of silence” in public schools. Then children should discuss their thoughts at home, coming to some idea of life’s meaning. “Religious freedom is something we need to be fighting for.” Goldstein recalled that age 17, he received a letter from Rabbi Menachem Mendel Schneerson (The Rebbe) saying “how are you going to fill up your mind … if a little bit of light will push away a lot of darkness, how much more a lot of light.” Thirty days after the shooting, there was dancing in Goldstein’s community. There should be “a billion good deeds to light up the world.” There should be religious communities which are a “project with brothers.”

Rienzi said that at a fundamental level, religious freedom is about “how do we live with people who are different from us.” This means not only different in such things as symbols and holidays, but different in answers given to “deep, important questions.” People do not want to live in a world without religious freedom. We are “different about things that really matter.” He said that a distant ancestor of today’s Jews would have expressed sorrow, but no surprise, at an attack on a Jewish synagogue. But the same ancestor would have been very surprised that police would respond to deal with the attack.

Rienzi said that believers must be “free to organize their lives around religious matters.” Several recent Supreme Court cases stand out in this regard, Rienzi said. In the Hosanna Tabor case (2012), the Equal Employment Opportunity Commission attempted to say that a Lutheran school had no particular religious right to hire and fire according to religious standards, but only a general right of association. But the court instead recognized a specific religious right under the constitution for religious organizations to hire and fire teachers according to religious standards. Hobby Lobby (2014) was “over the federal contraceptive mandate.” Many religious non-profit organizations and private firms owned by persons who make their faith part of the organization’s functioning were required to fund contraceptives for their employees. The case of such for-profit organizations, such as the Hobby Lobby retailer, was brought forward by the government first, probably, Rienzi believes, with the thought that it would be easier to win a ruling against them. The denial of religious freedom to for-profit religious organizations could then be extended to non-profit religious organizations. But the court found that under the Religious Freedom Restoration Act of 1993, religious organizations as well as individuals had the right to the free exercise of their faith. Rienzi observed that as government expands and attempts to supply more social services, it frequently requires private religious organizations providing the same services to abide by government rules, whereas earlier they were free to follow religious standards. Rienzi said that for many religious groups, such as Little Sisters of the Poor, social service is a major part of the core of their religious activity (their “free exercise of religion”).

Rienzi maintained that “the urge to think about God” is a “core part of human being.” If religious institutions were shut down there would be “gaping holes in society.” He believes that the fight over religion “warps politics.” He maintained that it was thought to be good politics, an advantageous political move, for the Obama Administration to advance the contraceptive mandate against religious organizations. But Rienzi noted that both Supreme Court Justices Samuel Alito and Elena Kagan held in the Hosanna Tabor decision that religious institutions provide an important buffer between the government and the people.

In a panel discussion with scholars of international religious freedom, Shah asked “what do we mean when we say ‘freedom for religious institutions?’” Richard Garnett of the University of Notre Dame responded that one of the essential things for constitutional government is the non-state aspects of society. While advocates of religious liberty in our day have had to contend with a hostile use of the doctrine of separation of church and state, it historically has protected in some measure non-state organizations. Important non-state institutions are religious. They are crucial to check the overreaching state.

Shah then asked “what are the administrative and legal threats” to religious freedom? Stanley Carlson-Thies of the Institutional Religious Freedom Alliance said that institutional religious freedom is crucial to carry out religious formation and mission. But this is threatened by a large percentage of Americans who do not “understand faith and practice” (and thus are not sympathetic to religious freedom). Numerous other threats are Americans’ “anti-institutional bent,” the demands of the LGBT revolution against religious freedom, the greater diversity in society (which makes it harder to understand one another), the greater tendency to find things in society which are offensive (and thus call for government action to eliminate the offense), and the growing sentiment to inflate the idea of “harm” (regarding the words and actions of others that are in some way objectionable as actionable offenses, just as material harm is).

Discussing religious persecution in China, Fenggang Yang of Purdue University said first that China “has a lot of religion.” But the Chinese government holds an atheist ideology, “so all religions are minorities”. With the new government of Xi Jinping, all religions are attacked. Protestant churches have been demolished. Underground Catholics are missing. Muslims, Buddhists, and Taoists are subject to surveillance and submission. The government has an objective to “Sinicize” all religions. Religious freedom was improved from 1979 until recently. Previously, religion had been eliminated by the communists for thirty years after the communist takeover. There were effectively no churches during that time. By 2004, China recorded 72,000 religious organizations in the country. China tends to regard religion as a kind of ethnicity, Yang said. The Religious Affairs Bureau and the Ethnic Affairs Commission handle the government’s interface with religious groups. Ethnic unrest over the last decade may have contributed to greater repression today. China is moving back to state control of mosques, temples, and churches. Part of the conflict centers around whether there will be true religious freedom or only freedom for religious beliefs. An aspect of the Chinese regime that bears on the current persecution is the hierarchy of importance in matters of law. Westerners tend to regard national constitutions, laws, ordinances, policies, orders, and speeches by national leaders to have exactly that order of importance in determining what order is binding, but in China, it is understood that the order of importance is the opposite of that enumerated (i.e., speeches by political leaders are most important, followed by orders, policies, ordinances, laws, and the constitution).

Ahmet Kura of San Diego State University said that in Islamic majority countries, there has been the “Ulema-state alliance” (between religious leaders and the state). This has historically resulted in very centralized power, and an entanglement of religion and the state that does not comport well with religious freedom. Today, Turkey’s Directorate of Religious Affairs writes sermons to be delivered in mosques. The state is under the tutelage of imams in Iran. Royal power is dominate over religion in Saudi Arabia. Religious leaders may be embedded as part of the government. Dissenting Muslims are disadvantaged. Religious leaders are corrupted and obscured by power. The Muslim Brotherhood in Egypt “tried to capture everything, and lost everything.” Religious minorities in Muslim countries suffer from a lack of universal rights. The categories of people Muslim governments deal with are based on religious identity. There is a lack of the notion of citizenship. This results effectively in second class citizenship for members of religious minorities. As an example, the Patriarchate of Constantinople (in Istanbul, Turkey) is not recognized as Turkish. The Orthodox seminary in Turkey which trained clergy has been closed for over 40 years.

Elizabeth Prodromou of Tufts University observed in connection with Middle East religious minorities that the Ottoman millet system was essentially a “separate but unequal” system. Currently there is an inability of these minorities to sustain themselves. Property rights are important to religious groups in the Middle East. Churches may have difficulty building, repairing, or adding to church buildings. She mentioned a church in Egypt which added a rest room, and for this the church was demolished. Denial of property rights are a “nonviolent form of discrimination.” Historic policy in Egypt with respect to the Copts was intended “to annihilate a community.” The targeting of these minority communities as loyal to an outside power is a problem, so important for them is “not being targeted as a fifth columnist.” Barriers to the historical memories of these communities may be part of these Middle Eastern societies (what she called “memoricide”). All of this results in a public dynamic in which “cleansing and homogenization are acceptable.”

In summary, Shah again quoted as appropriate to religious groups generally the German anti-Semitism official Klein as saying that Judaism is “not just about being Jewish, but doing Jewish.” Religious action, and corporate religious action, is important to religious freedom as well as belief and identity.

A questioner commented that part of what religious freedom involves is that one person does not have to act according to another person’s belief. He commented in connection with abortion that if one is “against abortion, don’t count on it.” He seems to have meant that one’s belief that abortion is immoral should not mean that society can decide that abortion is wrong because of the religious motivation of many who oppose abortion. Perhaps by extension persons opposing abortion from a religious viewpoint must facilitate abortions, lest someone seeking an abortion be “imposed on.” But Farr said in connection with this that religious people have equal citizenship with all others and cannot be silenced about abortion (and surely by extension should not be required to be complicit in abortion).

Another questioner asked how religious groups defend themselves. Carlson-Thies said that we should be protecting religious freedom globally. Latter Day Saints and Seventh Day Adventists intentionally educate members about religious freedom, he said. Religious social services “should think about the trends around you” rather than simply assume that they will continue to be able to function as they have in the past. They must speak up if they do not want their religious freedom taken away.


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