In the early 1900s the tobacco industry came to Edward Bernays, the father of modern public relations, with a problem. American women were not smoking cigarettes. Women represented a huge potential market for the cigarette industry and they were not smoking. The cigarette industry wanted to know if Mr. Bernays could offer some help.
In 1908 New York passed a law banning women from smoking in public. Although women were used to advertise cigarettes as early as 1880, they were not the girl next door. The pictures used were of “exotic” women or women on the edges of polite society.
The fix: Tap into the times and offer a representative solution.
Women in 1929 were lobbying for more freedom. Bernays hired women to march in the 1929 Easter Sunday Parade in New York City, smoking “Torches of Freedom.” He also began a media campaign to equate a woman’s equality and independence with smoking. It worked. Women began smoking in public immediately. Edward Bernays knew “freedom” is an action word.
When Americans say, “freedom of…,” we all know something of constitutional import is about to follow. We have examples: freedom of assembly, freedom of speech, and the big one, freedom of religion. Each a sacred jewel in the American crown.
Freedom of religion used to mean freedom to practice any chosen religion. Today, with skillful manipulation by religious and political operators and a growing number of people and their elected representatives, “freedom of religion” has become an American Christian movement, the religious freedom movement, pitting the faithful against civil authority.
Americans are a paradox. We value individualism above all else. American icons, the frontiersman, pathfinders, inventors, musicians, reality TV stars, warriors, athletes, social, political, and religious activists, are examples to most Americans of individuals who make our country great. As Americans, we share a reverence for the exceptional individual. This is understood by most Americans without a hint of irony.
There is beauty in this paradox. It is the unique American dance. A tenuous dance of the individual with the group. An inclusion of separates. The all-American “dance with who you brung” mentality with the occasional “change your partners and do-si-do.” We float through society, aloof and proud individuals with an air of “Pax Americana,” and at the drop of a wide brimmed hat, we fight for American values, whatever that means this week.
American individualism is not the result of arrogance or near-barbaric sensibilities. We are not brutes. We have responsibilities as citizens that are weighty and urgent. We must, each one, be ever vigilant. We know our Government and our world is in the process of flying completely out of control. If that happens, for the good of America and the world, we, the people, I, must fix it. We need to know, in that eventuality, what makes the best America and we all have our own, individual ideas.
It’s not surprising that many people turn to religion for the way to make America the best country possible. The very first illegal immigrants on American soil, that we know of, were escaping from religious persecution and unequal applications of law. It should be noted, of course, the minute their bags were unpacked, those early illegals began the American tradition of religious persecution and unequal applications of law.
The tension between religion and civil authority is as old, for Americans, as Plymouth Rock. The conflict is centered at the point of America’s purpose. Is America a refuge for all religions, is religion free in America, or is America a Christian nation, free only for Christians and their friends?
America is a predominately Protestant country. The founding fathers were at the minimum, mostly deists. There were no Jews, Hindus, Muslims, or atheists. There were two Roman Catholics and the remaining framers were members of at least six Protestant sects. At the time, each sect differed in style and methods of worshiping to the degree that rivalries were common between members of the same faith.
The fear that a state religion could become anything like the sectarian rivalries the founders were familiar with, both in the new world and England, helped guide them away from making any references to Christianity in their nation-defining documents.
The Constitution, before the Bill of Rights was attached, mentions religion only to prohibit religious tests.
“No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
Once the Bill of Rights was attached, December 15, 1791, the Constitution made the relationship between religion and America clear:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.”
Telling American religious leaders, after a very comfortable 180 years of near unrestrained authority, that they are effectively on their own, did not then, and does not now, sit well with the faithful.
From that moment until today, The U.S. Supreme Court has been busy defining the separation between church and state. And, from that moment, American Christians have been equally busy looking for loopholes in the Court’s decisions. The American dance.
The first Amendment to the Constitution, as it relates to religion, has been attacked and defended many times since its ratification in 1791.
The first assault came in 1878. George Reynolds, Reynolds v. United States, 98 U.S. 145 (1879), a secretary to Brigham Young, was convicted in Utah of bigamy under a Federal anti-bigamy law. The conviction was upheld by the Utah territorial supreme court. Mr. Reynolds appealed to the U.S. Supreme Court with the question: Does the federal anti-bigamy statute violate the First Amendment’s free exercise clause because plural marriage is part of religious practice?
The Court concluded, unanimously, that the First Amendment protected religious belief, but it did not protect religious practices that were judged to be criminal, such as bigamy.
The following decades found religious challenges to the First Amendment in the areas of religious instruction in schools, McCollum v. Board of Education Dist. 71, 333 U.S. 203 (1948); censorship, Burstyn v. Wilson, 72 S. Ct. 777 (1952); oaths of belief, Torcaso v. Watkins, 367 U.S. 488 (1961); school prayer, Engel v. Vitale, 82 S. Ct. 1261 (1962); religious instruction in public schools, Epperson v. Arkansas, 89 S. Ct. 266 (1968); and a landmark case, Lemon v. Kurtzman, 91 S. Ct. 2105 (1971), where the Court established a litmus test for determining the application of the “Establishment Clause.”
The court decided that to be constitutional, a statute must have “a secular legislative purpose,” it must have principal effects which neither advance nor inhibit religion, and it must not allow “an excessive government entanglement with religion.”
Although the 1st Amendment is clear, the “Lemon test” is functional, and every assault on the First Amendment has been repelled, but these facts do not dampen the desire of many Christians to change laws to favor their beliefs.
Until a few days ago, a Kentucky county clerk, Kim Davis, sat in jail because she has a religious conviction against issuing same-sex partners marriage certificates. She is, no doubt, being told by movement operators that she was jailed by an unjust, un-Christian government, and she is an example of Christian fortitude, courage, and faith. She was in jail, in fact, because county clerks are supposed to give marriage licenses to whomever the law says is entitled to one.
Ms. Davis’s mistakes are many. Primarily she misses the fact that you can’t keep your job if you refuse to do it. Another, more important point: When a judge tells you to do your job or quit, and you don’t, big problems follow.
The fact that Ms. Davis and millions of other Americans feel comfortable looking for legal opportunities to overturn decisions made by the highest court in the land is a statement on how Americans see laws. If we decide a Supreme Court decision makes bad law, our responsibility to justice, as citizens, is to work to change the law. That is understood as citizenship in America. If we can marry our individual take on civic responsibilities to the will of God, Supreme Court rulings and any other man-made law is soon to fall.
There is little risk involved for the Ms. Davises in America, or their handlers, for publicly protesting Supreme Court decisions, because protest is expected. Representative republics, unlike democracies, are not immediately affected by factions working for change. Whatever happens on the streets must influence elected representatives to the degree that they initiate legislation on behalf of the faction. That process, designed by James Madison, the architect of the Constitution, is the insulating fail-safe of the Republic. It is also the reason why Americans look at all laws as only temporary statements of our will. The louder we get, the more our elected representatives think about reelection.
Challenging a nation’s fundamental beliefs and foundational laws requires a political machine to rival the machine of state. Plausible ideas must gain supporters who organize themselves into factions, complete with political operators and lawyers.
The religious freedom movement is challenging the provisions of the 1st Amendment by initiating state legislation to, in effect, make an end run around federal legislation.
The movement’s point of contention is a nifty twist on the provisions of the Lemon decision litmus test. Whereas, in Lemon, to be constitutional a statute must be secular in nature and free of any government-linked religious aspects, the religious freedom advocates want the government to show compelling reasons before interfering in the private religious practices of citizens.
What can only result is a new America, an America where government was once impartial and offered the free exercise of all religions, but now must decide upon every interaction between the state and religious practices. By its nature, government is either ambivalent or controlling.
The religious freedom movement is finding a voice while missing the point. They are using God to discriminate against a group of American citizens and they are using a most unlikely “poster-child” for their cause. Kim Davis is not a warrior for God, she is a tool. She has been picked to lead the religious freedom dance from tiny Rowan County Kentucky, population 25,000 souls. The problem is the religious freedom movement does not understand the American Dance and the rest of us are disgusted by their lack of rhythm. They are out of step with the meaning of freedom and they are working to replace liberty with their brand of Christian intolerance and injustice.
Kim Davis is a bad tool for this work. Sadly, it appears she is the best tool the religious freedom movement has. She has been a professed Christian for 4 ½ years. She has been married 4 times and has had twins out of wedlock. Considering there are exactly 6 references in the Bible about the evils of homosexuality and 15 references to the greater evil of adultery, Kim Davis has more to worry about from her own God than any same-sex couples have to fear.
Granted, the religious freedom operatives have created an idea: destroy the 1st Amendment protections of the free exercise of all religions and replace them with Old Testament hatred. They have attracted followers, they became a faction that must be dealt with, and they have, as a result, created religious freedom laws in several states.
Those laws are being overcome by a combination of threats of economic reprisals and federal laws that supersede them. The real Christians, it appears, will not do business in states where the political Christians have passed discriminatory laws.
What we are privileged to be witnessing is the current installment of the American Dance. The controlled equilibrium between the value of the individual’s desires for the state and the value of the state’s desires for the individuals.
We are privileged because we represent a model of the citizens’ right to stand eye-to-eye to the Leviathan with the security of equal protection under the law and the freedom to tell the state it is wrong, it must and will change, and it is looking at the people who will make that happen. That is the origin of the “contentious” nature of America. We must have a voice.
The freedom of religion crowd is not long for the spot light. Their bully pulpit laws cannot stand the piercing light of the 1st Amendment. They were welcomed to the dance but they would not learn the steps and they were way too particular in their choice of partners. Their brand of Christianity misses the point that in America we all dance together, or there is no dance.
What they get right is that the 1st Amendment, and every amendment, should be assailed from time to time with sincerity. The founders designed it that way… They wrote the Great American Dance.
Mark Johnson is a freelance writer living in the high desert of Southern California. He holds a bachelor’s degree in philosophy from California State University, Los Angeles.