With primaries already under way, the future of religious freedom is one of many significant issues at stake in the upcoming presidential election. This week Cornerstone asks contributors to comment on how our new president could shape religious freedom policy by reflecting on the following questions: What are the various candidates’ records on religious freedom within the United States and around the world? What domestic and international religious freedom issues are candidates likely to prioritize, and how important are these issues to voters?
By: Robert M. Owen
I am writing from Canada, where one occasionally still hears the old hockey joke: “I went to a fight last night, and a hockey game broke out.” I am still waiting for a political campaign to break out in the fight between Republican presidential hopefuls. But I digress, before I have even begun to approach my point.
That point concerns religious freedom in the 2016 election. The liberty to believe and practice one’s religion flashes at two points, really. Domestically, should religious believers who own businesses be held harmless for refusing to provide services to which they conscientiously object? For example, should a bakery owned by traditional Christians be permitted to refuse to cater a same-sex wedding?
The second flash-point is at the intersection of domestic and international affairs: Should America admit only Christian refugees and immigrants?
The two Democratic candidates, Hillary Clinton and Bernie Sanders, say "no" to both questions. The Republicans say “yes” to both, or at least to the first question, and several—Donald Trump, Ted Cruz, and Ben Carson—explicitly say “yes” to the second.
On the domestic issue, the Republicans are correct. I won’t argue the point here, but will simply refer readers to the arguments of Douglas Laycock of the University of Virginia Law School.
On the international-domestic issue, the Democrats are right. The law seems unclear on the question, because refugees are not U.S. citizens. So I’ll argue from America’s history and traditions. America’s historic principles manifestly exclude religious tests of all kinds. The only reference to religion in the original U.S. Constitution (that is, prior to the addition of the Bill of Rights) reads, “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” More famous is the First Amendment’s prohibition of any “law respecting an establishment of religion, or prohibiting the free exercise thereof.”
What principle could possibly ground these strictures that would also allow the country to exclude non-Christians, qua non-Christians, from entering the country and becoming citizens? Is it that American principles simply do not apply to foreigners? We then must come to grips with our own Declaration of Independence, which declares that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Or is it that the U.S. government has no obligation to help foreigners secure their rights? Now we are getting somewhere. Surely the American nation is not responsible for enforcing the human rights of every person in the world; if it were, the Pentagon’s budget would need to quadruple and the country truly would be waging perpetual war against the world’s tyrants.
This would leave, say, Muslims or Yazidis persecuted by ISIS in a catch-22: they cannot be protected by U.S. law until they become U.S. citizens or residents, but they cannot become U.S. residents because they are not Christians.
Let me reach back a bit further to challenge this “citizens only” principle as well. John Locke, the seventeenth-century English philosopher, was not only one of the chief influences on Thomas Jefferson and other of the American founders. Locke also helped write Fundamental Constitutions of Carolina (1689), a tedious document that nonetheless has some revealing articles concerning religious freedom. One the one hand, Locke, notwithstanding his own heterodox Christianity, did set up religious test for immigrants. Article 95 states: “No man shall be permitted to be a freeman of Carolina, or to have any estate or habitation within it, that doth not acknowledge a God, and that God is publicly and solemnly to be worshipped.” No atheists, then, were accepted, probably because Locke, with the overwhelming majority in England at the time, feared that atheists could not be loyal and law-abiding subjects of the king.
But Locke makes clear in Article 97 that “the natives of that place, who…are utterly strangers to Christianity,” were not to be expelled, and furthermore that “Jews, heathens, and others who dissent from the purity of Christian religion” should be allowed to settle in Carolina and treated well by the authorities. All sorts of non-Christians were to be allowed in, Locke wrote, so that they might find Christianity attractive by seeing “the truth and reasonableness of its doctrines, and the peaceableness and inoffensiveness of its professors.”
Locke’s arguments for religious toleration are familiar to political theorists. But what is striking here is that he would not limit immigration to Christians. One of the old chestnuts Americans absorb in school is that we are “a nation of immigrants.” Some old chestnuts, like this one, are true.
I would add that if a specific religious group is being singled out for persecution, as Jews were under Nazi rule, it makes sense, and indeed is incumbent, to admit more members of that group as refugees. Christians are being persecuted by ISIS and other jihadist groups, and the documented disappearance of Christianity from its ancestral lands is horrifying. But the fact is that jihadists are persecuting all who dissent from their severe sect within Islam: Christians, but also Yazidis, and millions of Muslims—Shi’a, yes, but also Sunnis who disagree with the jihadis on this or that.
It is intolerance, then, that is driving refugees away from areas ruled by ISIS. The United States cannot admit unlimited numbers of refugees. And it must be relentless in keeping out dangerous people; the threat of jihadism in our borders is real. But as we come up with rules for limits on refugees, we would be untrue to America’s historic principles to mirror the intolerance of ISIS by denying refugees entry to our country simply because they do not adhere to the right religion.
John M. Owen IV is the Ambassador Henry J. and Mrs. Marion R. Taylor Professor of Politics and faculty fellow at the Institute for Advanced Studies in Culture at the University of Virginia and an associate scholar with the Berkley Center's Religious Freedom Project.
This piece was originally authored on February 25, 2016 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.