What Are The Most Serious Threats? (Free To Believe: The Battle Over Religious Liberty In America - Part 2/3)

Luke Goodrich works for the Becket Fund for Religious Liberty. He's won multiple Supreme Court victories for religious freedom. He has appeared on Fox, CNN, ABC, NPR, and been in the New York Times, The Wall Street Journal, and Time Magazine. He's also an adjunct professor at the University of Utah law school where he teaches constitutional law.

I suspect he will also surprise - and challenge - both liberals and conservatives on the issue of religious freedom. While it's written broadly for people of faith and specifically for Christians, I think it also offers great food for thought for those who are not religious.

I have already begun to blog a review/overview of his book in three installments that will match the three sections of his book:

1) What Is Religious Freedom (read it here)
2) What Are The Most Serious Threats (the subject of this post)
3) What Can Be Done?

What I blog will be a mix of direct quotes and paraphrases from his writing. I will try to note where I am stepping out of the book and offering my own commentary.

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Part Two: What Are The Most Serious Threats

In 1990, the Supreme Court threw out decades of religious freedom precedent with Employment Division versus Smith. Previously, the Supreme Court said that the constitution’s free exercise clause forbids the government from imposing a “substantial burden” on a religious practice except in rare cases. With Smith, the court determined that a law would be unconstitutional if the law specifically targeted a religious practice because it was religious. If not, it would be upheld even if it had a devastating effect on religious practice.

The response to this ruling was strong and bipartisan. Ted Kennedy and Orrin Hatch sponsored the Religious Freedom Restoration Act, also known as RFRA, which was intended to restore the “substantial burden” test the Supreme Court had rejected. It passed the House unanimously, passed the Senate by a vote of 97 to 3, and was signed into law by Bill Clinton. It was supported by an unusual assortment of allies:  the ACLU, Concerned Women for America, Americans United for Separation of Church and State, and the National Association of Evangelicals, to name a few. Similar laws were soon enacted in over 30 states.

That was in 1993.

In 2015, Indiana passed a RFRA virtually identical to the federal RFRAs signed by Bill Clinton and adopted by most states. This time, it provoked a firestorm.

Why the shift? Goodrich proposes several reasons.

• First, culture has become increasingly resistant to the idea of religious truth claims that have exclusionary implications for how we live (for example, who religious organizations will or will not hire).
• The second major shift is that a medical provider’s opposition to participating in abortion is now being called a “dangerous form of discrimination.”  
• The third shift has to do with sexual autonomy, particularly the controversy swirling around Christians who don’t want to provide services for same-sex wedding ceremonies.
• The fourth shift has to do with the fact that our culture is increasingly less religious, and we increasingly care less about religious freedom.
• The fifth thing is that we are becoming more religiously diverse. There is a wider variety of religious practice, which in turn creates the potential for more religious freedom conflicts. When a country is more religiously diverse, it's harder to provide accommodation. This was a key factor in the Smith decision mentioned at the beginning of this post. The court said that we are a cosmopolitan nation made up of people of almost every conceivable religious preference. Because of that, trying to protect every religious practice would be “ courting anarchy,” which is “a danger that increases in direct proportion to the society's diversity of religious beliefs.”

Let’s take a look at a number of issues swirling around these realities.

RELIGION AND DISCRIMINATION

Title VII, which is part of the Civil Rights Act of 1964, prohibits employment discrimination based on race, color, sex, national origin, or religion. When it comes to religious discrimination, Title VII also has a religious exemption that says religious organizations have a right to hire individuals of a particular religion to carry out their work. This is common sense.

• If a local grocery store won't hire Jews, most people would agree that's wrong.
• If a local Jewish school only hires Jewish teachers, most people would agree that's permissible (or at least different).
• Most people would agree that a business shouldn't refuse to hire women, but if the business is hiring male models to sell men's clothing it's permissible.
• Most people would agree movies shouldn't discriminate on race but if the studio is making a film about Martin Luther King Jr. it should choose an African-American.

In each case, something that is normally a forbidden ground of discrimination is important to the job. So, discriminating based on that trait isn't morally wrong. It's permissible and perhaps even necessary.That's the common-sense principle underlying the exemptions for Title VII. For religious groups, religion is often an essential part of the job. In that case, discriminating based on religion isn't morally wrong. It might even be necessary for maintaining the religious mission of the group.

This right of religious association, which has been protected by US law for over two hundred years, simply means that religious individuals have a right to practice their religion in religious groups. These religious groups have a right to determine their religious belief and doctrine:  they can establish internal rules for governing themselves, and they can choose their members and leaders in accordance with their beliefs.

As the Supreme Court said in 2012, the church must be free to choose those who will guide it on its way. The court has no interest in letting the state figure out those details. Goodrich offers the example of a fictional clash between a pastor and a board of elders who fire him. The pastor claims discrimination; the church claims it’s not. If it went to court,

“A jury would then decide whose testimony was more credible. The court and jury, in effect, will decide… If the pastor wins his case, the court would issue an order reinstating him to his job, meaning the elders would have to hire him as their pastor again or face fines and imprisonment for contempt of court. In short, by enforcing its anti-discrimination laws, the government would choose the church’s pastor. This would be a serious violation of religious freedom.”

Ever since Congress enacted anti-discrimination laws, the courts have recognized what they call the ‘ministerial exception.’ Rooted in the First Amendment, the ministerial exception says the government can't enforce anti-discrimination laws in a way that would interfere with a religious group’s choice of its religious leaders. The dilemma is figuring out who counts as a religious leader. Pastors, priests, and rabbis obviously do. Secretaries and janitors don't. What about everyone in between? This is a delicate question. Ultimately, the court has decided to avoid any rigid formula for defining religious leaders and leaves it up to the circumstances of employment. Churches and faith-based organizations have historically had a constitutional niche carved out for them, though the further one moves into the realm of business, the harder that niche is to find.

WHEN FREEDOM OF RELIGION CLASHES WITH OTHER RIGHTS AND DUTIES

In 1658, the American colonies did not have a standing army. They had local militias in which every able-bodied male was required to serve. The Quakers refused to do it; the authorities punished them with fines, threats of violence, and confiscation of the property. The government eventually gave in.

Massachusetts and Rhode Island became the first colonies to exempt the Quakers for military service. During the Revolutionary War, the Quakers received a major break for the Washington. He released Quakers who had been drafted into his army and wrote that “those conscientiously scrupulous against bearing arms and every case should be excused.” Multiple states soon enacted protections for conscientious objectors. The 1864 Draft Act extended exemptions to conscientious objectors who were members of religious denominations opposing the bearing of arms. Similar exemptions were adopted by Congress during the two World Wars. During the Vietnam War, the Supreme Court extended this to not only religious objectors but also those who objected on moral or ethical grounds.

Religious freedom protects the right to live according to a different moral view, particularly when it comes to something as serious as taking human life.

Fast forward to 1973.

In Roe v, Wade and Planned Parenthood v. Casey, the Supreme Court decided there is a constitutional right to abortion. This act is so “intimate,” “personal” and “central to personal dignity and autonomy” that the government can't interfere with that choice. Specifically, in Casey, the court said that abortion has profound moral and spiritual implications on which men of women of good conscience can disagree. Because of that, the decision about the morality of abortion must remain private. That is, the government can't choose one side of the moral debate and impose that view by force of law.

On the same day it decided Roe, the Supreme Court decided Doe v. Bolton, a case which made room for religious individuals and hospitals to refrain from participating in abortion. Women have the constitutional right to abortion, but doctors have the right of religious freedom, which means the government can't force them to participate. Weeks after Roe, Congress passed the Church Amendment, which prohibits the government from requiring individuals or institutions to assist in abortions in violation of conscience.

Virtually every state passed similar protections. This principle has been settled for almost 50 years: No one can be forced to participate in an abortion even though abortion is legal.

That means the government can't tell a pregnant woman that abortion is immoral and stop her from having one. It also means the government can't tell a doctor, nurse, or hospital that abortion is moral and force them to participate. In other words, freedom of choice goes both ways.

Just as Quakers would not participate in war, doctors, nurses and hospitals can't be forced to participate in abortion. The rationale was simple. Abortion is a deeply divisive moral issue. If the government authorizes abortion, it must protect the rights of those who conscientiously disagree. It doesn't get to tell the Quakers that a war is morally justified so they must fight in it. It doesn't get to tell a doctor that abortion is morally justified so they must provide it. Currently, the law on (surgical) abortion is clear: No health care professional or facility can before to participate.

Pharmacists have been facing a different kind of battle. In Washington, the governor passed a regulation making it illegal for pharmacies to refer customers elsewhere for religious reasons (even though pharmacies could refer customers elsewhere for non-religious reasons). Several pharmacists objected. They eventually lost at the Supreme Court. Justice Alito was joined by Justice Roberts and Thomas in writing a dissent that said this case was an “ominous sign,” which makes sense considering what a significant break this was from previous precedent.

Fortunately, the Hobby Lobby and Little Sisters of the Poor cases illustrate how our legal system can create space for dissenting moral views. In both those cases, the Supreme Court agreed that the government wasn't allowed to second-guess the religious beliefs that established the moral framework for the abortion issue. Rather, it said that was a “difficult and important question of religious and moral philosophy” for religious individuals to decide. As Justice Kennedy wrote, religious freedom means “more than just freedom of belief. It means the right to express those beliefs in the political, civic and economic life of our larger community.” The government did find a way to increase access to contraception without forcing Hobby Lobby or the Little Sisters to violate their religious beliefs: employees got free contraception from a government program called Title X.

The government has two options on these kinds of religious freedom questions. It can double down on Roe v Wade, picking one side of the moral debate and forcing everyone to conform by punishing conscientious objectors. Or, it can preserve the freedom to live according to a different moral view and allow conscientious objectors to live according to their belief. This sort of compromise is not entirely satisfying to either side of the debate, but it protects the fundamental right of conscientious objectors to live according to their dissenting moral views.

Goodrich wonders if the principles used for pacifism and abortion would work to navigate the tension over sexual autonomy issues.

While the law recognizes the right to abortion, religious healthcare workers can't be forced to participate in abortions and religious groups can expect their members to refrain from abortion. The workers can’t stop the abortion, but they can step aside.

While the law recognizes the right of individuals to enter various sexual relationships, religious people wouldn't be forced to participate in same-sex marriages, and religious groups could expect their members to refrain from sex outside of traditional marriage. It recognizes the right of conscientious objectors to live by a different moral view and allows conscientious objectors to step aside (but not step in the way of).

In short, this model respects both sides in ways that are historically consistent. Same-sex couples are free to live according to their views; religious peoples are free to live according to theirs. The government doesn't force either side to violate their deeply held beliefs about human sexuality, and neither side is made to participate in a way that compromises their conscientious belief.

RELIGIOUS FREEDOM AND RELIGIOUS DIVERSITY

Goodrich starts this section with a fascinating story about a church that most people in a particular neighborhood did not want to see built. The church was vandalized and even set on fire at times, and eventually people phoned in bomb threats. The church members ended up never using the completed church because they were scared. Goodrich filed a lawsuit in federal court defending the church. And then he springs it: this was a mosque, not a church, and the people the Muslims were in fear of were local Christians in Tennessee.

Basically, the entire chapter is an argument for why Christians should be interested in the freedom of religion for all religious people. Goodrich offers three key arguments for protecting religious freedom: it helps protect religious freedom for Christians; it helps more people be introduced to the Christian faith, and it is simply the right thing to do.

Any victory for religious freedom for one group is a victory for all the groups because they are interconnected legally. The Supreme Court ruled in favor of a Muslim prisoner having the right to a particular diet; that ruling became the foundation Goodrich used to represent Hobby Lobby.

Goodrich is also very clear about his dislike of the government wanting to punish beliefs. When the government says, “Islam is a dangerous ideology that leads to terrorist attacks; therefore, we can suppress Islam,” they end up using that as a justification to search Muslim homes, monitor Muslim sermons, or shutdown Muslim mosques even when there's no evidence they're plotting criminal acts. It's difficult to find any historical examples of governments that claimed the power to stamp out dangerous belief systems and have been wielded that power well. The government that has the power to deem Islam (or any other religion) a dangerous ideology has the power to do the same to Christianity.

Religious diversity also raises an important question for Christians. Are we truly committed to religious freedom for all, or do we invoke this primarily as a tool for maintaining our preferred status in society?  When the culture sees Christians who are indifferent to religious freedom for Muslims, Hindus, or Jews, they conclude Christians are hypocrites because it looks like we aren't interested in protecting religious freedom as a fundamental human right; we're just interested in protecting ourselves.

THE DISESTABLISHMENT OF STATE RELIGION: WHY IT MATTERS

The most vocal critics of an established church several hundred years ago were devout evangelicals who were inspired by the Great Awakening in the mid-1700s. They believe that established churches were ultimately beholden to the state and prone to corruption, indifference, or worse. They sought disestablishment in order to strengthen and revitalize Christianity. David Hume actually favored the establishment of state churches precisely because he thought it would weaken the church. James Madison noted that after the colonies disestablished their churches, everything about the churches improved.

No doubt the Supreme Court has taken the idea of separation far beyond what the founders intended, but in our eagerness to right the ship we sometimes forget the dangers of government support for religion, which includes not only the trampling of religious dissent but the fostering of a tepid civil religion that obscures the distinctive truth of the Gospel. In the years that followed the Bill of Rights in 1789, all the states voluntarily ended their establishments. The last to do so was Massachusetts in 1830. It was not the result of increasing secularism or rationalism. The strongest support for disestablishment came for the most Evangelical denominations.

FREEDOM OF RELIGION IN THE PUBLIC SQUARE

Goodrich would like to see a return to “historical meaning” (as opposed to the Lemon Test) to decide establishment issues as seen in a 2014 ruling in Greece vs. Galloway. After a federal court struck down the practice of opening a city council session in prayer using the Lemon Test, the Supreme Court reversed the ruling, saying, “The Establishment Clause must be interpreted by reference to historical practices and understandings.” The first Congress appointed legislative chaplains just days after approving the language of The Establishment Clause, so the framers obviously didn't think mere legislative prayer was an establishment of religion. Because the town council's prayer policy fit within the tradition long followed in Congress and the state legislatures, it was constitutional.

In the “historical meaning” approach, the cross in a city park wouldn't be inherently suspect for a number of reasons:

• it doesn't share the characteristics of an establishment at the time of the founding
• it doesn't control the doctrine or personality of any church
• it doesn't coerce anyone to engage in religious practices
• it doesn't provide funding to religious institutions 
• it doesn't use religious institutions for civil functions. 

Religious acknowledgements (like a cross) were common at the founding even after disestablishment, and the court could uphold the cross as a simple acknowledgment of the role of religion in the city's history and culture. This leaves religion as untouched by government power as possible.  One would assume that, as American culture changes, other religious symbols would fall under this purview as well.

If the government uses its property and cultural influence to celebrate a variety of non-religious ideas and symbols but excludes religious ideas and symbols, it marginalizes religion and profoundly distorts public culture just as if the government excluded the viewpoints of contributions of women or African-American and other minority citizens.

Other points of interest:

• Goodrich does not support teacher-led prayer or even necessarily verbal prayer in public schools.
• We don't want public schools offering religious instruction because we don't want government bureaucrats deciding whether our children will be taught Calvinism or Arminianism, Catholicism or Protestantism. However, schools should allow students to receive private religious instruction during the school day and get credit.
• He believes it would be constitutionally permissible for grants and vouchers to go to both religious and non-religious schools on equal terms.

Basically, we should aim for a public square that neither promotes nor suppresses religion but instead recognizes religion as an essential part of human culture. Among other things, this would mean the government couldn't pressure anyone to be religious or attend religious services, but it could let citizens display religious symbols in the public square. It couldn't require students to say a prayer, but it could create space for students to pray on their own. It couldn't give preferential funding to religious schools, hospitals, and soup kitchens, but it could fund religious organizations on the same terms as non-religious ones.

In short, the government would leave religion as untouched by government power as possible.

UP NEXT: PART THREE - WHAT CAN BE DONE?