Riding the crest of a new tide of Islamophobia, NRO’s The Corner and Tennessee’s Lieutenant Governor, Ron Ramsey, have settled on the theory that Islam isn’t a religion — it’s a cult, or a way of life, or some other construct of lesser dignity, therefore not entitled to First Amendment protection. This is a cutesy way of translating subjective disapproval and hatred into an objective-sounding argument.
I need hardly add, too, that it doesn’t hold together, legally: the First Amendment definition of “religion” is almost intolerably broad (Scientology qualifies. Ugh.). The Supreme Court’s first succinct statement of religious freedom in America defined the concept’s reach quite broadly, as reaching all matters “of opinion”:
[T]o suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy which at once destroys all religious liberty.
Reynolds v. U.S., 98 U.S. 145, 163 (1878) (quoting early, pre-independence Virginia lawmakers); see also id. at 164 (summarizing) (“Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”).
By trying to erode the definition of religious freedom to exclude disfavored sects on that basis alone, the new right is attempting something truly unprecedented: the rolling-back of a concept that is definitional to the American experience, and our shared history. We might term this as something broader: the law should vest no individual with an advantage, or privilege, merely due to the fortune of his birth. There is no greater distinction between republicanism and pre-Enlightenment theocracy than the application of this principle to religious liberty. How strange to see that line blurred.