A Free Exercise Argument Against Trump’s “Religious Freedom” Rules

Responding to: Politics of School Prayer

By: Peter Henne

February 13, 2020

The Trump administration’s latest religious freedom policies continue its aggressive championing of conservative religious values. Worried progressives have come to see religious freedom as a threat to their ideals, setting up a zero-sum partisan debate in the 2020 elections. But the problem is not religious freedom; it is its current, conservative-leaning, definition. If progressives embrace religious freedom, and explain how conservative policies infringe on their religious beliefs, they could reclaim this issue.

Debates over religious freedom in America come down to two parts of the First Amendment. They read, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” That is, government cannot establish a religion, and the people must be allowed to freely exercise their religions. In today’s politics, conservatives usually emphasize the latter; they should be free to act on their faith as they see fit. And progressives emphasize the former; the government should not impose any religious beliefs on them. 

This is clear in both parts of Trump’s new rules on school prayer and faith-based social services. Conservatives argue they should be free to practice their faith by praying in groups at school and refusing service to same-sex couples. Progressives argue that people should have access to government-funded social services with no interference from religious beliefs. And schools should not be able to favor one religious group by implementing (often Christian) prayers. 

Unfortunately for progressives, the free exercise argument is winning. Courts and the public seem to be interpreting the establishment clause narrowly, with a high bar for claims of government establishment of a religion. Meanwhile, they interpret free exercise broadly. Any government policy that causes someone to feel as if they are acting against their religious convictions is seen as a limit on religious freedom. So, if a school’s restrictions on organized prayer, or the application of non-discrimination laws in government funding, make people feel as though they can’t act on their faith, they can argue this undermines their First Amendment rights.

In response, progressives try and push back on the free exercise argument. They question the scientific basis of conservative religious views. They point out that this broad interpretation of free exercise doesn’t extend to non-Christians. They highlight the benefits of a separation between religion and state for both the religious and the non-religious. These are all valid points, but they aren’t working. 

The problem is that progressives have accepted the conservative framing of religious freedom. They agree with conservatives that the government is restricting religious practice through things like limits on school prayer. They just disagree with it being an issue. There is an alternative, however, and the Trump administration’s new religious freedom guidance is an opportunity to demonstrate it.

Progressives should reformulate their arguments. Expanding school prayer or providing government funding to discriminatory faith-based groups is a concern not because this establishes a religion. The issue is that this prevents those of us with different religious views from freely practicing our faith. 

We can see this with school prayer. I am a Christian—born Lutheran and now Episcopalian. My religious tradition doesn’t emphasize group prayer in public facilities. That tends to be evangelical Christians. So, in my hometown, the students pressing for prayer groups or proselytism in the cafeteria were usually evangelicals. When a pastor fought to give an openly Christian prayer at a convocation ceremony, he was from the conservative megachurch. The rest of us had to participate in a religious service that went against our religious beliefs; I disagreed with what the prayer contained but had to sit there and listen. That was an infringement on my ability to practice my faith as I saw fit and thus my religious freedom.

It’s also apparent in government funding of faith-based organizations that discriminate against same-sex couples. My religious tradition does not see anything wrong with a same-sex couple raising a child. It also calls for love and compassion for all and believes that turning someone away over arbitrary moral codes is exactly what Jesus preached against. So, when I have to give my taxes to an organization that does so, I’m being asked to ignore my religious convictions. That is an infringement of my religious freedom.

As we go into the 2020 elections, religious freedom threatens to be a zero-sum, partisan issue. Since the free exercise definition of religious freedom favors conservatives, progressives will have to limit religious freedom to advance their causes. 

But if they reframe their objections to draw on the free exercise argument against Trump’s religious freedom rules, this could change. Democratic presidential candidates are already referencing their faith to explain their progressive social and economic views. Imagine if they took that one step further: Because progressive Christians’ faith compels them to ensure no one is turned away, government funding for faith-based social service organizations infringes on their faith. Likewise, they could argue expanding school prayer doesn’t benefit Christians, it benefits one certain type of Christian, at the expense of all other Christians (and non-Christians).

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. 

Trump’s latest religious freedom rules—and his administration’s approach to religious freedom in general—come off as a threat to progressive values. But if progressives change the way they conceive of religious freedom, this moment can actually present an opportunity.

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A Free Exercise Argument Against Trump’s “Religious Freedom” Rules