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Does Obama really care about religious freedom in America?

Religious freedom in America is under attack from the right and the left. But the right of conscience is our greatest possession. If Obama genuinely supports religious liberty, he can offer his support for a constitutional amendment that would restore protection for religious rights.

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Mason and Madison both acknowledged that religion is a duty owed our Creator. Mason, however, believed that while religious conscience “should enjoy the fullest toleration,” government was free to regulate conscience if it “disturb[ed] the peace, the happiness, or safety of society.”

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Alarmed that Mason had transformed the most sacred of rights into a mere privilege granted by tolerant lawmakers, Madison responded that free exercise could only be limited when the exercise of that right deprived another of an “equal liberty” and when that exercise of conscience “manifestly endangered” the “existence of the state.”

For Mason, like Obama and Scalia, religious exercise was a privilege at the mercy of government. Madison, however, saw it as an inalienable right largely beyond the reach of government. Madison’s view became the basis for our First Amendment.

Madison understood what Scalia and Obama evidently do not, that conscience is our most significant possession.

Dr. Martin Luther King, Jr., had an experience during the early stages of the civil rights movement that demonstrated the importance of the right of conscience.

One night, Dr. King received a vicious call threatening his family. As he worried about his family, he realized “religion had to become real...[he] had to know God for [himself].” He prayed, “Lord, I’m down here trying to do what’s right.... I think the cause we represent is right. But Lord...I’m losing my courage. And I can’t let the people see me like this because if they see me weak...they will begin to get weak.”

King heard an inner voice saying, “Martin Luther, stand up for righteousness. Stand up for justice. Stand up for truth. And lo I will be with you, even until the end of the world.” He was “called” to lead a movement that transformed America.

Recognizing the importance of conscience King taught that, “If you haven’t found something worth dying for, you aren’t fit to be living.”

Madison would see Dr. King’s religious conscience as a right, not a mere gift from an occasionally tolerant government. It seems that Obama would have us believe that he would recognize it as a right as well, but his actions indicate he may not.

If Obama, Scalia, and others continue their overreach and disregard for this fundamental right of conscience, religious freedom in America will remain insecure. If Obama genuinely supports religious liberty, he can step forward and offer his support for an amendment adopting the language of the Religious Freedom Restoration Act of 1994.

That amendment would restore religious liberty by requiring that the government prove that its regulation of religious exercise is necessary to a compelling state interest. The amendment would also require the government to prove that the regulation is the least restrictive manner in which the government’s compelling interest can be achieved.

That amendment would recognize that religious liberty is not a mere privilege. It would restore our most sacred possession – the right of religious conscience.

Rodney K. Smith is a First Amendment scholar who serves as a distinguished professor of law at the Thomas Jefferson School of Law in San Diego, Calif.


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