With news that the Supreme Court will hear Masterpiece vs. Colorado Civil Rights Commission this fall, Washington’s think tanks have been abuzz with talk of religious freedom. In the past week, both the conservative Heritage Foundation and centrist Brookings Institution hosted discussions on the status of religious liberty in American public life. The events, while quite different in their approach to the issue, both help illuminate the massive gulf that has emerged around this often thorny issue.
On September 6th, the Heritage Foundation took a personal approach by hosting a panel discussion with business owners involved in recent discrimination and religious liberty court cases. The participants included florist Baronelle Stutzman, who was sued for refusing to provide flowers to a same-sex wedding; shirt printer Blaine Adamson, who won his court case on his refusal to print pro-gay t-shirts; media producers Carl and Angel Larsen, who proactively challenged a state law mandating they produce films for same-sex weddings, and baker Jack Phillips, whose Masterpiece Cakeshop is the namesake of the aforementioned Supreme Court case. The panelists all emphasized that their Christian religious beliefs prevented them from participating in these events.
The Brookings Institution took a more theoretical approach to religious freedom in a wide-ranging discussion yesterday morning. After remarks by John Dilulio on the need for more civility and open-mindedness when discussing religion in the public square, an ideologically diverse panel of Joshua DuBois, David Gregory, Katrina Lantos Swett, and Russell Moore took the stage to build on the billed themes of “restoring civility and protecting pluralism.”
DuBois, the former director of the White House Office of Faith-Based and Neighborhood Partnerships under President Obama, got to the heart of the divide over religious freedom in his remarks. As he recalled conversations with past ‘civil rights giants’, DuBois posited that “Religious liberty advocates…are often the most dangerous and destructive to the civil rights cause because they thought that their first principles and their civility would save them without interrogating the depths of the evil in human hearts that they saw around them….[Religious liberty] was almost an opiate that slowed justice down.” To DuBois and many progressives of his ilk, religious liberty is often a simple guise for problematic opinions, many of which may impede “progress”. It is therefore only tolerable insofar as it is compatible with the prevailing definition of justice.
And yet here’s the rub: DuBois’s narrow conception of religious liberty is not entirely inconsistent with American jurisprudence. Throughout American history, our courts have repeatedly recognized limits to religious liberty when they feel the state has a compelling interest in imposing such limits. The state’s prohibition of things like polygamy or peyote or (obviously) pedophilia supersede any religious claim to the contrary.
The polygamy case is of particular interest in a world of post-Obergefell religious liberty claims. Over a century before the Court redefined marriage to include same-sex couples in its landmark 2015 decision, it considered the question of the legality of plural marriage in Reynolds vs. United States (1878). The case centered on George Reynolds, who argued that his arrest for marrying a second wife was unconstitutional because his Mormon faith compelled him to do so. In its unanimous decision, the Court first reaffirmed the principle of religious liberty in the then-territory of Utah:
Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned.
But the Court then concluded that the practice of polygamy was well outside the limits of the Free Exercise Clause of the First Amendment:
The question to be determined is, whether the law now under consideration comes within this prohibition…To permit [polygamy] would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.
It’s not exactly a stretch to foresee a 2017 court using similar reasoning to rule against the Christians opposed to same-sex marriage on the Heritage panel.
Back at the Brookings panel discussion, moderator William Galston, a current Brookings fellow and previous Clinton administration official, pondered the relatively recent and significant change in public attitude towards religious freedom. “The Religious Freedom Restoration Act passed almost unanimously,” Galston stated, referring to the 1993 law that bolstered religious freedom protections. “And 24 years later here we are….We all have the sense that we were in one place 24 years ago and we’re at a very different place now when it comes to religious liberty and its role for good and for ill in our civil discourse. What has happened…in this almost quarter of a century that has led us to this current moment?”
The Reynolds case provides the key to Galston’s answer. It’s not that commitment to religious liberty has changed substantially, but rather that unprecedented challenges to the limits of religious liberty protection have emerged. Sexual orientation and gender identity (SOGI) non-discrimination statutes and policies—and identity politics more broadly—present a unique and powerful challenge to the principle of religious liberty precisely because they are so diametrically opposed to fundamental tenets of traditional religion.
To be sure, identity politics did not arise in a vacuum. “When there is not a sense of transcendent purpose and meaning people will try to find a substitute for that,” Russell Moore astutely observed, “And what we have largely seen happening in American life is people finding tribal identities in political movements or cultural arguments.” Small-o orthodox Christianity roots identity in the reality that every human person is made in the image and likeness of God, which necessarily precludes prior commitments to sexual-, racial-, national-, ethnic-, or any other type of identity. Clearly, Christianity recognizes the legitimate ways in which these secondary “identities” shape personal experience. But, unlike the identity politics crowd that vociferously asserts their occasionally “intersecting” identities, the Christian always subjugates these affiliations to the Truth of Christ. When “transcendent purpose” recedes from public life, tribal identity takes primacy.
So religious observers who still adhere to those particularly “problematic” beliefs—those beliefs that run counter to the prevailing secular vocabulary of “identity” and “intersectionality”—find themselves at an impasse. The limits of religious liberty protection are rapidly leaving behind even the idea, “male and female, he created them,” seeking to cast the first chapter of Genesis over to the ‘unacceptable’ side of the dividing line with the likes of polygamy (just as, ironically, the latter may be making a move back to the ‘acceptable’).
What all this reveals is that cries of “religious liberty” are necessary, but not sufficient. So long as traditional Christian belief (especially concerning sexual morality) is successfully painted as outside the bounds of decent public discourse, no religious freedom protection will be granted to those who hold these views. In a secularizing society where, to once again quote Moore, people increasingly “find tribal identities in political movements or cultural arguments,” the Christian conception of the human person is radically alien, and perhaps even hostile.
In this light, both the Heritage and Brookings approaches to the issue are needed. We do need a firm commitment to the principle of religious liberty. But we also need to make the public case, through personal narrative and neighborly relationships with ideological adversaries, that traditional Christian beliefs and those who hold them are reasonable and therefore within the limits of religious freedom.
During his panel introduction, Heritage fellow and moderator Ryan T. Anderson observed: “You’ll see the headlines, but the media doesn’t do a good job of showing the real humans behind these stories.” If Christians are to maintain religious liberty protection, perhaps it’s time we focus on humanizing religious liberty claims.
Emile Doak is director of events & outreach at The American Conservative.