Curt Smith: Religious liberty cases are trending the right way

Religious liberty cases are trending the right way, at least for those who believe that the First Amendment guarantees freedom of religion. The other side, which views the hallowed text as denying religious references or influences in public life, thankfully, is losing ground.

This backdrop informed the Indiana Family Institute’s arguments before a Hamilton County court Oct. 3 in one of the most important religious liberty cases in Indiana legal history. One reason this lawsuit is significant is we have so few religious liberty cases, given good-natured Hoosiers protected by a state Constitution’s seven stout defenses of freedom of faith.

The federal cases, which inform Indiana law as well, begin with the 2018 blockbuster known as Masterpiece Cakeshop. A Colorado artisan baker with sincerely held religious beliefs declined to create a cake celebrating a gay marriage. His case went all the way to the U.S. Supreme Court, which 15 months ago strengthened protections for the free exercise of religion by ruling the state of Colorado cannot coerce him to violate his conscience by forcing him to create the artful delicacy.

A parallel landmark case strengthening the establishment clause of the First Amendment came this summer in a case called American Legion. The court declared, although in a complicated opinion, that existing “monuments, symbols and practices” common in public are “presumptively constitutional.” This turned the entire previous approach on such questions on its head. Under what was known as the Lemon test, defendants had to prove that legislative prayers, monuments in cemeteries and courthouse squares, or religious symbols such as crosses, Stars of David or crescents on public property are constitutional. Now the burden of proof flips to the other side.

These are just the landmark cases. In the past month alone, federal appellate and district courts decisions (Minnesota’s Brush and Nib; Iowa’s Inter-Varsity) and states (Arizona’s Supreme Court on a state Religious Freedom Restoration Act statute, for example) are accelerating the trend.

These are huge wins. When coupled with a White House stressing religious liberty (see the president’s recent speech before the United Nations plus executive orders on the subject) and the U.S. Department of Justice rediscovering the First Amendment affirming laws we know as RLUPA (Religious Land Use and Institutionalized Persons Act) and RFRA (Religious Freedom Restoration Act), the faithful are beginning to breathe easier. Hat tip to Jeremy Dys of First Liberty for highlighting this pattern.

This new day is especially important for Catholic and evangelical Christians, the core of the “despicable” and “deplorable” crowd out of favor with the reigning cultural elites in government, academia and national media. Even though outcasts, we wonder why hostility toward our beliefs grows among some Americans.

Beyond reducing the culture-war tensions, this trend also underscores the centrality of the five freedoms assured by the First Amendment to ordered American liberty. This is critical for the Indiana Family Institute and all public policy advocacy organizations. The heart of our work is public persuasion. To make our views known, we need unfettered freedom to make public policy arguments.

We also know one of the best ways to protect free speech and other First Amendment rights is to exercise them. So we speak out, and up, making our views known, even when that challenges the prevailing orthodoxy. Actually, it is even more important to speak up when we go against popular passions or the grain of political correctness. We pay a high price, especially on social media, but we know that championing religious freedom makes the price worth it.•

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Smith is chairman of the Indiana Family Institute and author of “Deicide: Why Eliminating The Deity is Destroying America.” Send comments to ibjedit@ibj.com.

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