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October 9-11, 2015

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Lauryn Seering

Lauryn Seering

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I'm proud to be an American

FTF4-532cropBy Andrew L. Seidel
Staff Attorney and Constitutional Consultant
Freedom From Religion Foundation

I'm proud to be an American. This is not some blind, jingoistic, nationalist pride—it's not my country right or wrong (I only adopt that attitude during the World Cup and the Olympics). I'm proud because this nation, despite its faults and missteps, was the first to separate state and church. That "wall of separation" as Jefferson put it, is an American original.

This is not to say the idea is necessarily an American invention, but it was first implemented in the "American Experiment," as Madison put it. Until then, no other nation had sought to so full protect the ability of its citizens to think freely. No people had sought to divorce the terrible power religion holds over the supposed afterlife, from the power government has in everyday life. Until then, the freedom of thought and even the freedom of religion, could never have truly existed.

There can never be true freedom of religion, without a government that is free from religion. Daniel Carroll, a Catholic representative to the Constitutional Convention from Maryland, put it best when he said that, "the rights of conscience will little bear the lightest touch of the governmental hand." Whenever the government puts the weight of every citizen—"We the people"—behind one particular religion, it violates the rights of conscience of us all. The First Amendment is designed to protect those rights—to "unshackle the conscience from persecuting laws."

So this Fourth I will do what Jefferson did when he wrote his famous letter to the Danbury Baptists on New Year's Day, 1802. I will "contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State."

No matter what this country has gotten wrong over the years, this Fourth, we can all be proud of the country that invented the separation of state and church.

This is a guest post by FFRF Staff Attorney Andrew Seidel at the Friendly Atheist Blog.

The long overdue celebration over the decision that makes gay marriage just marriage overshadowed an important piece of news for the secular movement. On June 25, the ACLU announced that it would no longer support the Religious Freedom Restoration Act—the federal law Hobby Lobby used to successfully challenge the contraception provisions of the Affordable Care Act.

FFRF has been opposed to this law for some time because, as Ms. Melling writing for the ACLU put it, "religious liberty doesn't mean the right to discriminate or to impose one's views on others." In April, FFRF asked Connecticut Governor Dannel Malloy and Virginia Governor Terry McAuliffe, both of whom expressed opposition to Indiana's law, to repeal their own state-RFRAs. We even ran ads in the New York Times asking for a repeal of the federal RFRA. And until Indiana tried to pass a particularly malicious RFRA and companies like SalesForce, Apple, GenCon, and even the NCAA joined the fight, FFRF was waging a lonely battle. There were a few notable exceptions, such as Katha Pollitt, writing for The Nation, and the groups that signed on to our Hobby Lobby brief. [Ms. Pollitt sits on FFRF's honorary board.] Our brief to the Supreme Court, singled out by Peabody Award-winng Supreme Court website SCOTUSblog as a "bold challenge," was the only one of more than 80 in the Hobby Lobby case to argue that RFRA is unconstitutional.

How important is this? Well, very. One popular counterargument FFRF has faced in its battle, which is becoming less lonely by the day, is that when RFRA was passed, everyone, from the Religious Right to the ACLU, supported it. And to this day, everyone, from the Baptist Joint Committee, to the religious ministry/law firm Alliance Defending Freedom, to the media highlights that fact. They all point to RFRA as a miracle that crossed party and religious divides. The ACLU's support of RFRA gives, or, as we must now say gave, these laws credence.

Undercutting this popular argument in favor of RFRAs is important. But perhaps the most important impact of this announcement will be that the ACLU's courageous stand will encourage other secular and human rights groups to follow suit. This could be a tipping point.

And isn't it time? These insidious laws are one of two things. They are either completely superfluous because our First Amendment already protects religious freedom, or, a legal justification for discrimination. The First Amendment already protects the freedom of religion and, under its mantle, every species of religion has flourished in this country. RFRAs are therefore unnecessary, unless they have another purpose. The Religious Right is now using these laws to justify discrimination in the name of a god. They make that argument over and over again. Tony Perkins, president of the Family Research Council, has been explicit. He argues that these laws allow discrimination in the name of religious belief, citing the example of Baronnelle Stutzman, the Christian who refused to provide flowers for a gay wedding. But even if no court ever buys the "religious freedom as a defense to discrimination" argument, why would we keep laws that justify discrimination—especially when the First Amendment protects what these laws purport to defend?

The ACLU is calling for "Congress to amend the RFRA so that it cannot be used as a defense for discrimination." But we don't think that goes far enough to protect citizens. Unlike the First Amendment, the terms of RFRA only give protection to religion and therefore religious citizens. As of now, that protection is not extended to nonreligious citizens (who now make up 23% of the population). Favoring religion over nonreligion, which the Supreme Court has repeatedly said is unconstitutional, will always be problematic. That's why FFRF has long been arguing that RFRA is unconstitutional and should be either repealed or, like the bans on gay marriage, struck down in federal court.

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