Thomas C. Berg is the James L. Oberstar Professor of Law and Public Policy and directs students in the Religious Liberty Appellate Clinic at the University of St. Thomas School of Law in Minnesota. He is a religious freedom scholar whose numerous publications include approximately 60 briefs in the U.S. Supreme Court and lower courts.
Our society is polarized, and disputes over religious freedom are making it more so. Consider recent high-profile cases: President Trump’s ban on travel from mostly Muslim countries, clashes between LGBTQ claims and religious objectors, challenges to the Obamacare contraception mandate. Divisions over these cases almost perfectly replicate divisions on the underlying political issues (immigration, LGBTQ rights, etc.). Conservatives minimize liberty and equality protections for Muslims; progressives minimize religious liberty protections for conservatives.
The disputes further convince each side that it must fear the other. The travel ban, although eventually narrowed, originated in Trump’s reckless campaign promise of “a complete and total shutdown of Muslims entering the US” based on the assertion that “Islam hates us.” Reported hate crimes against persons and property spiked after those statements, spreading fear among Muslim Americans and other minority groups.
Conservative Christians are fearful too. LGBTQ nondiscrimination laws, they worry, impinge and will impinge on their organizations’ ability to follow traditional faith tenets. Catholic adoption agencies may be forced to certify and place children with same-sex couples. A widely publicized California bill would have withdrawn state grants from needy students at religious colleges that had policies disfavoring same-sex intimate conduct. The bill was dropped, but it likely will return. President Obama’s solicitor general, arguing before the Supreme Court, acknowledged that it was “certainly going to be an issue” whether organizations that disfavored same-sex relationships should lose their tax-exempt status.
There are powerful rationales for LGBTQ equality laws, and it’s unsurprising that many people have little sympathy for conservatives who fought that equality. But religious liberty protects even beliefs and practices one finds unsympathetic. And vigorous protection of religious liberty is intended to calm fears and reduce polarization, by giving people of fundamentally different deep beliefs ample space not just to hold their beliefs but also to live consistently with them.
Religious freedom in the West arose in reaction to the wars of the Reformation. Protestants had killed Catholics and vice versa because each feared the other side would kill them upon taking power. Thomas More, Catholic martyr for the cause of conscience, had earlier (as lord chancellor) hunted down Protestants and delivered them to be burned. America’s framers rejected that vicious cycle.
Fear of the other side likewise drives today’s polarization. How, it’s asked, could 81% of white evangelicals vote in 2016 for a man with glaring character defects? A Wheaton College survey of those Trump voters found that religious liberty worries ranked third or fourth most frequent as the chief reason for their vote—higher than abortion and LGBTQ issues. The solicitor general’s statement and the California college bill received extensive evangelical attention.
Religious liberty can calm such existential fears and reduce polarization. But it will instead aggravate polarization if it simply replicates struggles over underlying issues. Religious liberty must be strong enough to protect unpopular views, and it must recover some bipartisan status. That requires two commitments:
1. Religious liberty for all. Trump’s administration has vigorously protected traditionalist religious organizations. Many of the protections are quite defensible, although a few may have gone too far. But any claim that Trump is a principled defender of religious liberty rings hollow given his attacks on Muslims. Instead he comes off, intentionally, as conservative Christians’ political patron, boasting that they “have never had a greater champion” in the White House. Today as during the Reformation, liberty only for those causes you champion is not liberty. It’s simply a means of advancing those causes.
The administration has also opposed religious liberty defenses by people who’ve offered relief to undocumented immigrants, and now it may be endangering Native American sacred sites in building its border wall. These positions may simply reflect bureaucratic indifference; but one should not proclaim a commitment to religious liberty and then be selective. The administration’s recent guidance on religion in public schools was generally a sensible summary of current law, but it still aroused suspicion because of the president’s other actions. Christian conservatives must count the long-term costs of alliance with Trump—and must affirmatively defend religious freedom for all to be persuasive in defending it for themselves.
2. Strong liberty, but careful lines. We must protect religious freedom strongly but also draw lines that account for other interests as well. One way is to enact legislation that protects both sides: LGBTQ nondiscrimination rules combined with meaningful exemptions for religious organizations (including not only houses of worship but also nonprofit ministries like schools and social services). Utah passed such a law in 2015: That deep-red state now protects LGBTQ people in employment and housing but only because the legislature simultaneously recognized religious organizational exemptions. Such exemptions would make it easier to enact LGBTQ rights legislation in several of the 28 states that currently lack it.
Exemptions can be carefully calibrated. Educational institutions should have broad protection; they’re essential for teaching and living out the tenets of a faith, and students who cannot follow those tenets have many alternatives, including public institutions. For adoptions and other social services, likewise, there are usually many alternative providers, making it possible to both accommodate religious providers and maintain wide access for all beneficiaries. But as to commercial businesses with religious objections to nondiscrimination laws, exceptions generally should be much narrower: Businesses are usually further from the core of religious life, and the interest in ensuring ready access of all people to goods and services is stronger.
We can draw those distinctions. But currently, the major progressive groups oppose any exemptions from LGBTQ nondiscrimination laws for any religious organization except houses of worship proper—no matter how serious the clash with the organization’s beliefs or how many alternative providers exist. They claim that religious liberty should not cause “harm to third parties.” But in a complex interconnected society, any freedom with content will have some effects on others. Take an example progressives support: Faith-based organizations serve the homeless, and they should have freedom to do so, consistent with safety and order, even when neighbors claim the activity reduces their property values a bit.
Today more than ever, we must affirm strong religious liberty for all. If we don’t, religious liberty may ultimately lose its power to protect anyone.