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Duck Calls and Pilgrims: Religious Freedom in America

By Donald E. Knebel on December 26, 2013 in Civic Blog

A&E’s suspension of “Duck Dynasty’s” Phil Robertson for an interview in which he seemingly equated “homosexuals” with “terrorists” and “homosexual behavior” with “bestiality” based on his interpretation of the Bible has caused an outcry from conservative commentators and politicians, including Ted Cruz and Sarah Palin, who characterize the suspension as an attack on “religious liberty” and “free speech.”  It plainly is not, since both the right to religious liberty and the right to free speech are rights guaranteed against government interference. Since neither Mr. Robertson nor A&E has been threatened by any action from any government, free speech and religious freedom have prevailed.

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What then is behind the claim of some conservatives that Mr. Robertson’s suspension is a threat to religious freedom?  A clue can be found in a column published by USA Today and affiliated newspapers written by a conservative Des Moines commentator named Steve Deace.  He writes that “a nation founded by pilgrims who came here to worship the God of the Bible without interference” “has now come to the proverbial fork in the road” between Biblical “truths” and “political correctness.”

The linking of religious freedom with the Pilgrims and Biblical truths shows that the cry about loss of religious freedom may really be a lament that certain groups are losing the power to impose their religious views on others.

Mr. Deace, whose slogan is “Fear God; Tell the Truth; Make Money,” must know that the Pilgrims came to the New World seeking more than the freedom to worship in the manner they believed the Bible required.  After arriving, they realized their additional goal of establishing a government to enforce their conviction that the Bible required regular church attendance, acknowledgement of the resurrection of Jesus, baptism of infants and other “truths.”  The penalty for denying these “truths” could be death.  Mary Dyer and three men were hanged on the Boston Common on order of the Massachusetts general court for espousing the views of Quaker George Fox. Anne Hutchinson was banished for not accepting the “truth” proclaimed by those in power.  The Pilgrim majority certainly had the freedom to impose its views of “truth,” but those who disagreed had no religious freedom at all.

Our Founding Fathers sought to eliminate the power of one group to use the government to advance its own views of religious “truth.”  That is why the Declaration of Independence refers to a higher power only in generic terms compatible with the teachings of many religions and traditions.  That is why the Constitution requires that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”   Under our system, in which the people are sovereign, laws are not based on “truths” claimed to emanate from a divine source but from the popular will.

The First Amendment guarantees us the right to “free[ly] exercise” our religious beliefs without governmental interference.  But that freedom is limited by laws protecting others from harm.   If people believe that celebrating the winter solstice naked will bring them eternal happiness, they are free to do just that but only if they don’t run afoul of laws protecting citizens from unwanted exposure to nudity.

Mr. Robertson is not being criticized for his religious beliefs, but for publicly expressing views some see as every bit as hurtful in today’s society as banishing Anne Hutchinson from Massachusetts.  By suggesting, however naively or unintentionally, that lawful expressions of love are comparable to bestiality and terrorism, he expressed a view that many find as threatening as claiming, as Americans once did, that the Bible requires the subordination of blacks to whites or the domination of women by men.  A&E’s decision to distance itself from such views is not an abridgement of Mr. Robertson’s freedom to believe whatever he wants, but an affirmation of its belief that all Americans, both individually and as groups, have a right not to be slandered in the name of religious beliefs they don’t share.  We would all be threatened if A&E did not have the right to act as it did.

Mr. Deace may regret, as he says, that he can’t fulfill what he believes to be his duty to root out “sin” based on his perception of “simple truths” found in the Bible.  Apparently envious of the Pilgrims, he may regret that we don’t live in a country governed by “truths” not all of us find persuasive, let alone infallible.  We can all thank whatever higher power we call upon that our Founding Fathers bequeathed to us a country not captive to a particular religious view.  If, as Mr. Deace claims, we are at a fork in the road between acceptance of his version of the “truth” and respect for the rights of others he disparages as “political correctness,” Americans have no choice but the latter.

Donald E. Knebel is a partner in Barnes & Thornburg LLP, resident in the Indianapolis, Indiana office. He is a member of the firm’s Intellectual Property Law Department. Mr. Knebel serves as adjunct professor and senior advisor to the Center for Intellectual Property Research at the Indiana University Maurer School of Law. He frequently posts his observations here at Civic Blog. The views expressed do not necessarily reflect the views of Barnes & Thornburg LLP or the IU Maurer School of Law.


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