Religious Liberty’s Recent Triumphs Might Spell Its Future Demise

By: Udi Greenberg

February 13, 2020

Responding to: Politics of School Prayer

Religious Liberty’s Recent Triumphs Might Spell Its Future Demise

In one of his most aggressive speeches in office, U.S. Attorney General William Barr warned last October that American religious liberty was under attack. The peoples’ right to freely practice their beliefs, he told a crowd at the University of Notre Dame, used to be a universally celebrated principle, but this was no more; since the 1970s, a cabal of “militant secularists” had been laboring to marginalize believers and deny them any voice in schools or work places in a dangerous quest to replace religion with “moral relativism.”

Though Barr claimed to speak for all “people of faith” against the “forces of secularization,” it was obvious that his concern lay squarely with the rights of conservative Christians. It was their priorities that he highlighted when listing the secularists’ alleged affronts to religion: the institution of legal protection for LGBTQ people, the legalization of abortion, and the passing of restrictions on prayer in public schools. Indeed, it was telling that Barr did not once mention Muslims, who are far more vulnerable to discrimination. Like the rest of the Trump administration, which has instituted blatantly Islamophobic travel restrictions (the so-called “Muslim ban”), Barr seems to believe that religious freedom is the privilege of conservative Christians. As such, its denial to others is not a source of outrage or concern. 

Barr’s apocalyptic warnings powerfully capture the right’s understanding of religious politics. This is not only evident in his depiction of conservative, largely white Christians—by far the country’s largest and most politically organized religious community—as a weak and persecuted minority. His words also clearly articulate how many writers and politicians from this camp currently understand the meaning of religious freedom. First, Christian conservatives routinely claim that the United States’ strength and prosperity has always depended on a willing adherence to Christianity. Americans may have opposed the establishment of a state church, but, as Barr put it, they understood that “free government was only suitable and sustainable for a religious people,” especially those who followed Jesus’ call for universal salvation. This meant that religious freedom laws were never meant to achieve state neutrality in religious affairs, and nor should they do so today. Their purpose was—and still is—to secure Christianity’s hegemony, even at the expense of others. Historians such as Tisa Wenger have shown how this logic justified discrimination against Catholics, whom Protestants did not consider fully Christian. Barr, who is himself Catholic, does not seem to be bothered by the irony of defending it today. Like most conservative leaders, he envisions state laws as protecting Christian denominations against their alleged enemies. 

Second, and equally important, Barr’s focus on gender and sexual matters reflects how the right’s effort to protect religious freedom is deeply intertwined with its quest to preserve traditional social hierarchies. After all, it is not an accident that religious liberty’s popularity among conservative lawyers and judges coincided with the proliferation of laws and rulings designed to protect women, sexual minorities, and gender expression. Invoking “religious freedom” has become a useful tool to carve out exceptions to those egalitarian principles, whether by permitting employers to deny contraception coverage or allowing businesses to fire LGBTQ workers. As historian Bethany Moreton recently wrote in this forum, this fixation with preserving patriarchy and heteronormativity is not a “culture war” that rages separately from material interests. Like the attacks on anti-racist laws, whether in voting rights or affirmative action, fights over marriage, abortion, and labor laws have tremendous economic consequences and determine who has access to our society’s wealth. 

This narrow definition of religious freedom has brought Christian conservatives important legal victories, especially when their cases made it to the Supreme Court. Despite pundits’ incessant talk about John Roberts’ desire to protect the court’s legitimacy through “balanced” rulings, the justices have handed the religious right one victory after another, from allowing employers to deny contraception coverage to upholding Trump’s travel ban; same-sex marriage is the only notable exception. And what is true for Roberts and his allies on the bench is also true for federal courts, which studies have shown to be plagued by preferential treatment of Christians. Muslim inmates’ requests for faith-based accommodations, for example, are denied at rates twice as high as those of their Christian counterparts. 

Yet in many ways, the right’s growing invocation of religious freedom does not stem from a sense of strength but a feeling of weakness. Like other aspects of the conservative agenda, their reliance on the courts stems in part from correctly recognizing that their social vision is increasingly unpopular and a hesitation to put it to the test of a free and fair electoral process. In two decades, to take one obvious example, support for legal discrimination against LGBTQ people has sharply declined. Similarly, a majority of Americans now back the right to abortion and federally mandated equal pay. Indeed, Barr’s panic about white conservative Christianity’s declining significance for public life, for all its toxic consequences, is not completely detached from reality. If current trends continue, it is not hard to envision a future in which Christian conservatives’ priorities could be decisively denied in elections. Conservatives’ efforts to enshrine their conception of religious freedom through the courts can therefore be understood as part of the right’s broader strategy of securing its unpopular priorities, whether tax cuts for the wealthy or draconian immigration restrictions, through unrepresentative institutions. Like its protection of the Electoral College, the passing of discriminatory voter ID laws, and the purge of voting rolls, the right’s judicial work in the field of religion is meant to shield its priorities from the voters’ will. 

This morphing of religious freedom to a discursive signifier for a specifically conservative and unpopular legal regime means that it is unlikely to return as a site of political consensus. The more the term acquires a transparently partisan flavor, the more progressive leaders distance themselves from it. Strikingly, and despite Barr’s insistence that opposition to religious freedom is a “secularist” plot, some of its harshest critics have been practicing Christians. Rev. William Barber, II, the icon of North Carolina’s “Moral Monday” movement, and Jonathan Wilson-Hartgrove, the anti-racist and anti-poverty preacher, have forcefully asserted in a joint article that “religious freedom laws are an immoral ploy” for racist and sexist discrimination. “As people of faith,” they stated, “we must oppose them.” While such formulations may be rare in their bluntness, other leaders from the left have similarly concluded that the current incarnations of the legal protection of religion are not useful to their agenda. The candidates in the Democratic presidential primaries have been more or less unanimous in their belief that religious freedom laws should be restricted; and even Rep. Alexandria Ocasio-Cortez, who often invokes Christianity as inspiration for her social vision, almost never frames her push for economic, racial, and sexual equality in the language of religious freedom. 

In this regard, Barr and others’ appropriation of religious freedom may turn out to be a Pyrrhic victory. By conflating the term with the social, political, and sexual visions of a shrinking conservative minority, they may unintentionally accelerate its ultimate discrediting.

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