I ran across this paper I wrote for a Religious Liberty class at McAfee School of Theology, Mercer University. I didn’t think it was half bad, so I’m posting it in my blog. It’s a little thick, so I’m adding some cat pictures.
Historical Context of the Controversy
The religion clause of the U.S. Constitution states, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. It is included with freedom of the press, free speech, and the right to assemble and petition the government. It is the part of the first amendment upon which concepts of religious freedom—which I use interchangeably here with religious liberty—are based. According to Davis, religious liberty in the U.S. is based upon the overarching ideal of separation of church and state (p. 81). He cites a religion historian who called religious liberty, “America’s great gift to civilization and the world” (p. 81). Interpretations of the religion clause have evolved since ratification in 1791 primarily through rulings by the Supreme Court of the United States (SCOTUS) on cases involving two concepts: establishment and free exercise. As Flowers explains, cases vary according to topics, such as taxation, school prayer, human resources, and insurance—but all of these share a tension of whether the government violates establishment when it supports religious organizations or free exercise when it does not.
Understandably, decisions passed down by the Court are influenced by its makeup; it has in fact changed its position over time. Nearly eighty years ago, Justice Hugo Black famously declared, “In the words of Jefferson, the clause against establishment of religion by laws was intended to erect a wall of separation between church and State’” (in Davis, p. 84). Over the last decade, however, the idea of religious liberty itself has undergone an odd reversal. No longer is its chief principal the freedom to exercise one’s religious beliefs and practices protected by the wall of separation from the government. Rather, religious liberty is now evoked by conservative Christians in order for them to freely exercise their right to discriminate against individuals or groups whose ideologies do not align with their religious beliefs. These Christians are, then, seeking establishment via rulings to substantiate discrimination, which they consider free exercise. Tracing the course of the transformation of religious liberty is beyond the scope of this paper. From my own historical memory and research, I trace it to the overt courting of the religious right in the South by Nixonian republicans in 1968, culminating with Ronald Reagan’s alliance with the Moral Majority that led to his victory in the 1980 election—in which he unseated an incumbent President who is unequivocally a devout Christian. This was the beginning of the narrative shift of religious liberty that supports the blatant politicized overreach we see today. For this paper, I did a Google search for “religious liberty.” I focused on articles and blog posts whose topics related directly to the cultural cooptation of the idea of religious liberty as I describe it above. Left of center publication, The Week, writer Joel Mathis sums up the premise of my paper:
The term “religious liberties” sounds anodyne enough: The First Amendment guarantees that Congress shall not prohibit the free exercise of faith. And conservatives frame the recent debates with a libertarian gloss: Government shouldn’t make religious folks violate their faith-informed consciences to provide contraception to employees or make wedding cakes for gay couples. On the surface the message is: “Leave us alone and we’ll leave you alone.” What could be more American?
But that message isn’t honest.
Unless you’re a Christian — and let’s be honest, unless you’re a conservative Christian — conservative advocacy of religious liberties is a big con, a consolidation of rights and privileges not meant to be shared with Muslims, atheists, or other religious minorities.
You don’t have to reach far for examples. (https://theweek.com/articles/784953/conservatives-religious-liberty-con)
And I did not. What follows is a sampling of what I found.
The day I was writing this, May 22, 2020, an op-ed piece popped up on CNN’s website: This Isn’t About Religious Freedom (Graves-Fitzsimmons). It outlines issues surrounding Covid-19 religious liberty litigation, written as a response to President Trump’s push for governors to allow churches to re-open. The president’s invocation of liberty, prompted the author to note, “From a wider perspective, the Covid-19 crisis also reveals a new dimension to how some conservatives have distorted our treasured American value of religious freedom” (https://www.cnn.com/2020/05/14/opinions/religious-freedom-lawsuits-on-social-distancing-graves-fitzsimmons/index.html). He goes on to cite examples of the exploitation of religious liberty to further conservative agendas, he lists groups such as the Alliance Defending Freedom that spent 54 million to argue the Masterpiece Cakeshop anti-LGBTQ case at SCOTUS. Graves-Fitzsimmons connects Covid-19 religious freedom lawsuits to current and pending cases involving whether “religious or moral beliefs of an employer should be an acceptable excuse to deny people birth control and whether taxpayer funds may be used for faith-based foster care agencies that discriminate against LGBTQ people” (ibid). He points out what is a recurring theme in my research—discriminatory conservative agendas are out of sync with public opinion surrounding these issues. The twisting of religious freedom, according to the author, is about winning the culture war and thereby bolstering the conservative voting base, Trump’s lifeblood. He concludes with a call to expose the bigotry behind the thin veil of religious freedom that covers it and “reclaim a religious freedom that does no harm” (ibid).
My research led me to The Berkely Center for Religion, Peace, and World Affairs at Georgetown University, an organization that examines, “the intersection of religion with global policy challenges of diplomacy, democracy, development and dialogue” (https://charterforcompassion.org/berkley-center-for-religion-peace-and-world-affairs?gclid=CjwKCAjwtqj2BRBYEiwAqfzur7FiTtxXPCn-_a4r4LjVhNdG9NLoy1QudwMV5MKW8mNOBRXOBabq3xoCW6gQAvD_BwE).
I found three essays in response to the Politics of School Prayer post in the Center’s Forum that address what one calls the “false narrative” of religious freedom. This pre-Covid post uses as a prompt President Trump’s announcement on 2020 “Religious Freedom Day” of new guidelines regarding school prayer during non-instructional time and the rights of students whose “freedom to pray has been violated” (https://berkleycenter.georgetown.edu/posts/politics-of-school-prayer). Additionally, he announced plans to remove “regulatory burdens” on faith-based social service providers that are supported by the Department of Health and Human Services—that is, by taxpayer dollars. The post suggests that while Trumpian Republicans have conducting an offensive front in the culture wars, Democrats have spent (frittered?) their energies trying to “connect with evangelical voters,” a heretofore fruitless effort.
The first response, The Debates Over Religious Freedom in the United States: What Debates?, by James W. Fraser, refutes the president’s claim of burdensome regulations of religious freedom by pointing out the new guidelines were nearly identical with previous guidelines issued by the G.W Bush and Clinton administrations. Fraser argues that the president’s fanfare over existing guidelines has deeper motives—first, to “warp the truth to stay in power,” that is, to fire up his conservative White Christian base, many of whom believe themselves to be discriminated against by progressives. If Trump can maintain the fiction of an “assault on faith” and the greater fiction that he alone can fix it, he will keep the support of his base. An even darker motive, according to Fraser, of touting his guidelines was to serve as a “cover for other policies which represent a dangerous infringement of rights”
(https://berkleycenter.georgetown.edu/responses/the-debates-over-religious-freedom-in-the-united-states-what-debates). He concludes with this stark statement, “…the obvious conclusion is that retaining voting blocs is more important to the administration than any concern for the rights of American citizens, religious or otherwise. We are better than that” (ibid). One hopes, but are we?
The second response, A False Narrative of Religious Freedom Threatens Americans’ Rights, by Rob Boston, begins by pointing out ways Trump’s school prayer guidelines in fact differ from Bush’s and Clinton’s, most significantly, that student- and teacher-initiated prayer at school functions may be legal. He then quickly turns to the problem of terminology in the evolving narrative of religious freedom, namely, that as it is used today demands religious privilege, which is very distinct from liberty. Boston offers a helpful definition of what religious freedom has historically meant in the U.S.: “the right to worship (or not) as you see fit, as long as you don’t harm others. It means the right to join together with fellow believers to build houses of worship, spread religious messages, and create a sense of community bound together by shared beliefs” (https://berkleycenter.georgetown.edu/responses/a-false-narrative-of-religious-freedom-threatens-americans-rights). Conversely, today’s conceptualization of religious freedom is a coersive and compulsive denial of the rights of others [and] is alien” to our core values (ibid). He points out that Americans are used to wrangling over issues, but this is a different age—one where polarization makes old ways of debating obsolete. When it comes to the minority voices of conservative White Christians, he concludes, “It is dangerous to accept even a little bit of oppression based on religion. The answer is always to resist it, by all legal means” (ibid).
The final article I examined from the Berkley Center Forum was A Free Exercise Argument Against Trump’s ‘Religious Freedom’ Rules by Peter Henne. His approach is somewhat different from other responses, as he approaches the issue with the onus of rectifying the cooptation of religious liberty on progressives. “The problem is that progressives have accepted the conservative framing of religious freedom”
(https://berkleycenter.georgetown.edu/responses/a-free-exercise-argument-against-trump-s-religious-freedom-rules). He charges us to retake a narrative whose subsequent policies discriminate against all but a small group of Christians. When progressives begin asserting that our own religious freedoms are infringed upon, the historical conceptualization will re-emerge. Practically, Boston proposes this: “Rather than religious freedom vs. non-discrimination, it would be a debate over the nature of religious freedom. And Trump-wary conservative Christians are more likely to be responsive to progressives explaining their approach to religious freedom than they are to calls to curtail religious freedom” (ibid). When my tax dollars go to an organization that refuses, for example, to allow a gay couple to adopt a child because they are gay—and since my faith tradition, the UCC, welcomes everyone, “Whoever you are, and wherever you are on life’s journey,” my religious liberty has been breached.
I argue that conservative White Christian America seeks to be sanctioned by the State through strategic SCOTUS rulings on the First Amendment. Let me be clear: not all conservatives nor all White Christians seek to twist the First Amendment. My complaint is with those of the population who overtly and intentionally seek to deploy the concept of religious liberty to discriminate. If we correlate them with Trump’s hardcore base, which I am taking the liberty of doing, it ends up being around 40% of Americans (https://projects.fivethirtyeight.com/trump-approval-ratings/). I am old enough to remember when Religious Liberty did not have the topsy turvy meaning it has now. Growing up a white child in the South in the 60s and 70s, God and Country had distinct meanings for me; we were a “Christian Nation.” By the 2016 election, I began to have the disappointing realization that the country I live in is not the one I thought I grew up in. As Black and Brown Americans could have told me, my imagined America was never real; it was only a narrative that kept social and political hierarchies in place. I agree with the argument that upholding both the establishment and free exercise components strengthens religious practice in this country. I hold the position that the current rally cry of “Religious Liberty” signals a license to discriminate and thereby to enforce through subterfuge a morality code that bolsters white supremacy nationalism. This is not Christian.
Again, not all conservative White Christians are white nationalists. Just as politicians like Leader McConnell who actively work to pack the judiciary with conservative judges are not all actively forwarding a religious agenda. And yet, these groups are strange bedfellows.
As Bill Clinton reminded us in 1992, “It’s the economy, stupid.” But how might corporate-forward politicians get plain folks to vote against their own economic interests? By appealing to their/our values. In 1980, when the Republicans actively courted religious leaders like Falwell and Robertson to get Christians on board, they promised Christians would have a friend in the White House, a seat at the table—that they would have a voice in governing. So Christians voted Republican. There was no real seat at the table, so the strategy changed to grassroots campaigns and gaining control of the judiciary. Aside from one setback on same-gender marriage from Obergefell v. Hodges in 2015, they have been overwhelming successful in influencing politics, which, of course, include the Courts. In his dissent of Obergefell, Justice Alito forecasted—or perhaps signaled—the ruling would have an “inevitable conflict with religious liberty” argument. I am not a political scientist, but my gut tells me that the LGBT victory with Obergefell helped the narrative shift; there would be new, more creative, ways to discriminate. If same-gender marriage was established by an unelected federal judiciary, so too then would cases be decided where refusal of services, for example, be equated with free exercise of religion.
Impact on Local Ministries
A 2019 brief from the Center for American Progress entitled Religious Liberty Should Do No Harm argues that policymakers have a responsibility to enact legislation that will, “ensure the right of religious liberty for all Americans without infringing on the rights and religious freedoms of others”
(London and Saddiqi, https://www.americanprogress.org/issues/religion/reports/2019/04/11/468041/religious-liberty-no-harm/). They offer suggestions for building a framework of inclusive, non-discriminatory religious liberty.
One option relevant to local ministries is to consult faith communities in local policymaking. This might be through the formation of interfaith councils, working groups, and task forces that represent a diversity of faith traditions, “in order to ensure that the many voices of the faith community are considered in policymaking” (ibid). This idea gets to the crux of the matter, writ large. Local politics are unduly influenced by conservative White Christians; local municipalities are unable to oppose Republican governors to mandate business closures during a pandemic, let alone establish interfaith policy consulting councils. If we were at a place in this country where rural Alabama had interfaith advisory groups, it might be a good sign that religious liberty was alive and well. But we are not.
My religious affiliation is with the United Church of Christ (UCC), an Open and Affirming (ONA) denomination toward some of the populations against whom religious liberty is being used as a weapon. The most obvious impact religious liberty laws have on my local ministry involves providing sacred spaces of radical welcome who are being discriminated against. My congregation would not only make a cake for a same-gender couple, we would perform the wedding and host the reception! As important, we would show up in solidarity at the state capital.
As Flowers and some of the writers above note, the establishment clause ensures the religious liberty of all who wish to freely exercise religious beliefs, not just of a small subset who would seek to manipulate the First Amendment to suit themselves. For example, this is not a fight for religious liberty of Muslims. It is important that local ministries be vocal in opposition to misuse and misinterpretation of religious liberty. We must, then, employ our own religious liberty to re-establish the concept of freedom inherent in it.
I will end with a story. My congregation is literally on a hill; drivers by cannot see us from the street. As one drives up the hill to the building, we have displayed really powerful signs about being the church and proclaiming that we are an ONA church. Once or twice we tried to put the signs at the foot of the hill; that way, people could see what we stand for. Both times, the signs disappeared. We do not hang a rainbow flag outside our building or display the UCC “Rainbow Comma” logo on our marquee. We do not display Black Lives Matter signs. London and Siddiqi end their brief with this cautionary word, “If policymakers do not ensure that religious liberty protects the free exercise of religion for all Americans, it will continue to be weaponized as a tool for discrimination and political gain and weaken nondiscrimination protections” (americanprogress.org). A “city set on a hill” (Mt. 5:14) can be hidden if it wants to be. We can be visible by being the church, or we can watch as inclusive religious liberty slips beyond our grasp. The work happens at the foot of the hill.