Kate Tsubata

Filmmaker, Journalist, NGO leader

As a journalist, and now as a filmmaker, I am deeply aware that freedom of faith is essential for healthy societies.  Faith informs action. Faith inspires change.  Faith underlies every advancement of human thought, action and behavior.  Where there is freedom of faith, a society flourishes.  People of faith start hospitals, universities, orphanages, schools.  People of faith oppose injustices—even when those injustices are allowed by the laws of the day.  Faith impelled the abolitionists to oppose slavery and the civil rights leaders to nonviolent resistance to segregation.  And the differences of creed and practice are essential.  While one faith upholds patriotic duty, another informs the conscientious objector who will serve in another field of battle.

The framers of the Constitution did not invent the right to freedom of faith; two centuries before, the first settlers fled their homelands to make a new life in which they could practice their faith freely.  For four centuries, people have fled religious persecution and come to this land.  The Constitution was merely the articulation of the compact that already existed among Americans themselves.  Religious freedom not only pre-dates the Constitution, but it is the central pillar of all the other freedoms—speech, assembly, press, and civic.  Totalitarian societies always seek either to ban faiths, or to establish one as the “true” belief, thereby criminalizing everything else.  The 20th century was replete with examples of horrific atrocities and genocides that took place under governments that restricted freedom of faith.  We can never forget the Holocaust, the Killing Fields, the slaughter of believers which took hundreds of millions of lives.  The pre-eminence of the freedom of faith has been seared into our consciousness, and even today, nations that forbid the free exercise of faith are notable for forbidding all other human rights, including the right to life itself.

This is why the Framers of the Constitution insisted on two aspects of the right to belief: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.  The judiciary are the guardians of this process.  The judiciary are tasked with preserving both aspects of this freedom—to ensure that no faith is established, under precedent or law, and secondly to ensure that every citizen has the right to freely exercise his or her faith.

No judge, of any level of court, is excluded from the Constitutional mandate to preserve freedom of faith.  A judge must not act either to establish, by precedent, one belief system above another.  Nor must a judge interfere with the free exercise of faith by any person or group.  The minute this sacred pillar is ignored, a domino effect is set into motion.  If a Catholic can be forced to perform abortions, then a Jehovah’s Witness can be forced to accept blood transfusions, and a Muslim can be forced to eat pork, and a Jew can be forbidden to circumcise their sons, and a Baptist can be forced to drink alcohol, and so on.  These scenarios are being tested every day—in every segment of our society.  We may not agree with others’ beliefs—but we all know, in a deep center of our being, that chipping away at another’s freedom will rebound and erode our own.

Judges have a particular need to go beyond the perfunctory exercise of their duties, and to examine the long-term repercussions of their decisions.  One poor decision—as in the case of Plessy v. Ferguson—can lead to decades of repression and injustice for millions. One righteous decision—as in Brown v. The Board of Education—can right the wrongs of the past.

Judges must refer always to the highest and most universal sense of the public benefit, in order to protect the rights of all.  Judges must often endure criticism, refuse blandishments, and be above politics or pressure—in order to carry out their crucial role.  Again, the outstanding jurists in history are those who referred to their own internal creed, to the sacred conversation within their own hearts, and to their own Higher Power.

No one can peer into the soul of another, to assess their beliefs.  We all, however, can look within, to see how our own faith and belief calls us to do right.  Whether we share beliefs, scriptures, practices in common—or whether we have differences in all those areas—as Americans, we hold faith itself to be beyond interference.  No Congress, no president and no judge—is allowed to determine which interpretation of scripture is correct, or which type of prayer is genuine, or which day should be held as holy, or which charitable work is Godly.

A court that ignores the most central underpinning of our national existence is in a perilous position.  Inexorably, destruction will follow that decision.  Every misstep, every wrongful act, that takes place as a result of the precedent that is set, will sadly become part of the historic record.  Good people, who have made hundreds of good decisions, will be remembered and held accountable for the one that unleashed such destruction.

No secular authority is empowered, in U.S. law, to decide matters of faith.  In fact, they are prohibited.  Belief is not only important in religious associations, but in all charitable, educational or service organizations.  The law is not supposed to interfere with the work of Salvation Army, nor of Habitat for Humanity, nor the American Red Cross, nor Harvard University.  Disputes and disagreements involving belief will always happen—but the courts are not empowered to decide which viewpoint is correct according to the belief system of the founder, or which are morally unacceptable.

No decision or action is without consequences.  Each of us can set into action a chain of events that will either create benefit or destruction.  The safest course is always to refer to the Golden Rule—do what you would wish to be done to you.  If the justices of the DC Courts would want to be ostracized, persecuted, impoverished and targeted for their own beliefs, they should continue to assert judicial authority over a religious dispute.  However, if they value and cherish their own freedoms, their own right of conscience, and if they would wish that for all people—then they should assert the constitutional and historic principle that the free exercise of faith is paramount, and that no one faith interpretation should be established over any other.

Here is what the early Christian Paul warned in his first letter to the Corinthians, 6:5

4So if you need to settle everyday matters, do you appoint as judges those of no standing in the church? 5I say this to your shame. Is there really no one among you wise enough to arbitrate between his brothers? 6Instead, one brother goes to law against another, and this in front of unbelievers!

Whether we stand as believers, or we stand as civic guardians, the principle is the same.  Secular courts, legislatures, executives or governors, can have no legitimate authority over the practice of belief.  It is incumbent upon all Americans, and all who seek justice in every nation, to preserve freedom of belief as an inalienable right of every human being.