Rethinking U.S. Religious Freedom, Sincerely

By: Charles McCrary

December 9, 2020

Rethinking U.S. Domestic Religious Freedom

Six or seven years ago, I began to notice—here and there, then seemingly everywhere—a cumbersome phrase: “sincerely held religious belief.” This phrase has since continued its creep into public discourse, judicial opinions, and legislation. This development coincided, strangely, with the rise of “alternative facts,” disinformation, media silos, and the campaign and term of a president whose public speech is mostly bull*$%. We supposedly live in what many observers have called a “post-truth” age. These might seem like contradictory developments—do we value honesty or not?—but the politics of “sincerely held religious belief” are emblematic of our times, not anomalous. The new politics of religious freedom, marked by aggressive litigation and legislation from right-wing Christians, is the politics of an era in which genuine and robust good-faith democratic deliberation is all but impossible—and the goal, for many, is not to have a conversation but to win.

Sincerity means that an individual’s internal beliefs match their outward speech and action. In theory, then, sincerity is public concept, a way to ensure honest dialogue. But in terms of religious freedom, “sincerely held” has come to mean deeply or intensely felt. In other words, fundamentally private and personal. These are the types of beliefs that would be protected from state coercion, according to the now-cracked bipartisan consensus around religious freedom. That consensus, though, was always premised on a liberal assumption that authentic religion is basically harmless, belief-based, and individual. Religious beliefs are lived experiences. It is rude to question them and difficult to argue with them, even as they serve as motivating factors or justifications for actions that affect others. As Kwame Anthony Appiah recently explained, “What makes the invocation of lived experience such a powerful move—the fact that it’s essentially private, removed from inspection—is exactly what makes it such a perilous one.” Without adequate tools to evaluate the content of anyone’s lived experience or religious beliefs, courts and legislators and litigators often fall back, as ever, on conventional ideas of what religion is.

In theory, then, sincerity is public concept, a way to ensure honest dialogue. But in terms of religious freedom, “sincerely held” has come to mean deeply or intensely felt.

As many scholars in religious studies and related disciplines have shown, the category “religion” itself is a Western construct crafted specifically for purposes of racial colonial governance. 

In light of this history, religious freedom is revealed as disciplinary, forcing people into an implicitly Western (white, liberal, often Protestant-like) mode of belief and expression. It is true, though, that some minoritized groups have been able to use religious freedom to gain some rights, as a wedge to pry open the door of liberal inclusion. This type of inclusion, for many liberals, is the great benefit and promise of religious freedom. However, the new politics of religious freedom warps it, reforging a shield to protect minority groups into a sword to attack them. Lamentations of this “weaponization” often seem to rely on the assumption that religion is essentially or properly not a weapon, and thus the free exercise thereof should not harm others. But the fact is that bigotry—and not only bigotry but discrimination and actively doing harm—is an authentically religious principle for many believers in the United States.

Bigotry—and not only bigotry but discrimination and actively doing harm—is an authentically religious principle for many believers in the United States.

Although racism, or at least whiteness, undergirds much of the politics of religious freedom, it is not usually recognized as an authentically or legitimately religious ideology. However, anti-LGBTQ beliefs and practices are, and often without much question, as scholars including Winnifred Sullivan have recently shown. These beliefs are what many of the new laws and lawsuits aim to protect. In some cases, legislators have made this explicit. A 2018 Mississippi law known as HB 1523 and officially called the Protecting Freedom of Conscience from Government Discrimination Act protects, specifically, the beliefs that “(a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.” 

What if the Mississippi law had instead mentioned racist beliefs? Can racist beliefs be sincerely held and religious? At least one believer thought so. The owner of a wedding venue cited HB 1523 in her refusal to facilitate “mixed-race” weddings. When asked why she was denying service to a couple, she said, on video, “because of our Christian race—I mean, our Christian belief.” A few days later, she changed her stance, saying that she had recently learned, contrary to what she had been taught, that “biracial relationships were NEVER mentioned in The Bible!” But what if her exegesis had yielded different results? What if she had doubled down, holding her religious belief even more sincerely? To say that racist beliefs are (likely) not religious but that anti-LGBTQ beliefs (likely) are is a theological statement that requires explanation. But that theological discussion is one that almost everyone involved, from lawmakers to public commentators to judges to even the believers themselves, are often both ill-equipped and reluctant to have.

To say that racist beliefs are (likely) not religious but that anti-LGBTQ beliefs (likely) are is a theological statement that requires explanation.

Is there a way to achieve a better politics of religious freedom and a more progressive role for religion in public life, after Trump and against the cultural and legal landscape he helped shape? In their recent report, “A Time to Heal, a Time to Build,” Melissa Rogers and E. J. Dionne denounce the weaponization of religion and religious freedom, and they suggest a variety of initiatives, including restoring federal programs for faith-based and community partnerships. In these broadly irenic suggestions, they note that the primary mission is “serving people in need.” This is a secular goal. They continue, “Partnerships with nonreligious communities are as important as partnerships with religious communities.” These seem like mostly good ideas to me. I oppose government partnerships with organizations and people that do harm, and I generally support partnerships with groups who promote justice. But religion as such—and, much less, religious freedom—does not need to be a relevant category. Sincerely held religious belief has fractured the public sphere in multiple ways. I am skeptical that such a source and exacerbator of deep divide might now be a wellspring of unity or healing.

Given the composition of the courts, the cultural prominence of religious liberty on the right, and the utility of religious liberty for doing harm, a restored bipartisan consensus around religious freedom’s goodness is unlikely in the near future. But if the Biden administration—and, more importantly, activists and lawyers and grassroots organizations—want to achieve a genuinely just society, I sincerely doubt that it requires religious freedom. And I would not level accusations about what is real religious freedom and what is simply a mask for discrimination. What the right-wing religious liberty litigants recognize, as do critics of religious freedom as a liberal institution, is that there are no ontologically proper or improper uses. There is only power, and religious freedom has become an increasingly powerful tool. Reforming religious freedom and restoring a consensus could be a worthy goal, but it is less important than a just and fair society. If religious freedom has been weaponized, fighting against it with better weapons might be wiser than struggling to wrest it away.

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