Many thanks to Jonathan Last, Steven Menashi, Michael Helfand, and Peter Berkowitz for their exceedingly fine contributions to our discussion of religious freedom. I am particularly heartened that all four respondents to “The Rise—and Fall?—of Religious Freedom in America” more or less agree with my description of the threats facing individual adherents (at the moment, primarily Christians) who are attempting to navigate the contemporary social and moral terrain. That each has taken the opportunity to add context and depth to my analysis is itself very gratifying.
Steven Menashi notes correctly that, notwithstanding my affinity for the religious-liberty test as it existed in constitutional law prior to the 1990 Supreme Court decision in Smith, and in statutory law since the passage three years later of the federal Religious Freedom Restoration Act (RFRA), consensus on this issue is hardly of long standing. George Washington’s famous assurance, in his 1790 letter to the Jewish community of Newport—that “the government of the United States . . . gives to bigotry no sanction, to persecution no assistance”—remained largely aspirational for well over a century. In particular, the latter half of the 19th century was replete with anti-Catholic and anti-Mormon legislation. Many of those laws retain considerable relevance even today.
For one thing, the patchwork of anti-bigamy and anti-polygamy laws—almost all of which originated in a concerted war against Mormonism—is almost certain to come into focus as the debate over nontraditional families moves beyond single-sex couples into the sorts of polyamorous and polygamous relationships that Jonathan Last describes as the current focus of activists. But there is more. President Ulysses S. Grant’s 1875 speech calling for public schools “unmixed with sectarian, pagan, or atheistical dogmas” gave rise to the so-called Blaine Amendments prohibiting the flow of tax dollars to “parochial” schools: that is, practically speaking, the network of schools serving America’s then growing—and largely immigrant—Catholic communities. In recent years, the Blaine Amendments, still on the books in all but eleven states, have emerged as favorites of teacher unions and their allies who are attempting to place critical limitations on school choice and voucher programs.
The history of attacks on Catholicism and Mormonism highlights the ways in which society rotates its victims. Michael Helfand raises precisely this point in noting that many of those who supported RFRA saw it as a way of “protecting minority faiths from majoritarian preferences,” only to find that it could also provide exemptions to “much larger religious groups” at the expense of “minorities that are themselves in continuing need of legal protection.” The retreat prompted by this discovery explains the remorse that once-prominent RFRA backers, including Senator Chuck Schumer and the ACLU, now express.
Helfand’s characterization of RFRA’s current users is accurate: practicing Christians form a “much larger religious group” than do adherents of the Native American Church at issue in Smith. Nevertheless, they are not the “majority” that Rev. Jerry Falwell proclaimed them to be as recently as three decades ago. In fact, the discriminatory attacks suddenly being faced by Christian bakers and photographers are forcing America’s practicing Christians to confront an uncomfortable and unfamiliar reality: they are now but one more of America’s many minority groups—and a rather unpopular one at that.
That discovery has created space for the lessons that Menashi, Helfand, and I have suggested America’s Jews could teach its Christians—though I take exception to Helfand’s willingness to sacrifice religious liberty for the sake of an American pluralism that includes the LGBT community but not the Christian community. Rather than encouraging, in his words, the “representatives of the organized Jewish community [to] support [an] override of the collective Jewish interest in religious-liberty protections” in favor of “the flourishing of American pluralism,” I would instead encourage American Jewish leadership to reconnect with the critical role that religious diversity has long played in promoting that same pluralism.
America’s practicing Christians must learn—quickly—to function as a bona-fide minority rather than as a frustrated majority. In political terms, a majority attempts to motivate base support behind laws that lock in place its own preferred positions; for its part, a minority attempts to build coalitions behind laws that “let a hundred flowers bloom” (as Mao might have said about other flowers than religion). The shift from the one strategy to the other can be jarring and disruptive; it requires new skills, new modes of thought, new allies, and frequently new self-images. Events of the past few years suggest strongly that anti-traditionalists are now playing offense in American culture, leaving all traditional groups to play defense. For the community of practicing Christians, the sudden need for an effective defense will take them into terrain that Jews have occupied for most of American history.
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Until they do so, the anti-traditionalist offensive will continue to take advantage of the weakness of the defense, just as it did in Indiana. Thus, on August 20, a coalition of 130 activist groups generated headlines by requesting, for the second time, that the Obama Justice Department revisit a 2007 legal opinion by the (Bush-era) Office of Legal Counsel (OLC). According to the coalition, the OLC had “reache[d] the erroneous and dangerous conclusion that [RFRA] provides a blanket override of a statutory non-discrimination provision.” Yet the opinion in question was actually rather modest; far from providing a “blanket override” allowing unrestrained discrimination, it merely allowed religious organizations to restrict their hiring to members of their own faith. Unless and until America’s practicing Christians develop an effective defense, anti-traditionalists will continue to miscast attempts to secure reasonable, narrow accommodations as smokescreens for wholesale discrimination.
In the meantime, as both Jonathan Last and Peter Berkowitz note, the vulnerability of America’s largest traditional community has encouraged challenges far broader than those to individual religious observance. Berkowitz rightly casts religious freedom as but one front in the philosophical—and political—battle between liberalism and progressivism. A clear line of difference, beginning with the classical liberal preference for freedom and the rule of law versus the progressive preference for equality and justice, and continuing to manifest itself in the classical liberal preference for “negative” rights that no government may legitimately infringe (as in the U.S. Bill of Rights) versus the progressive preference for “positive” rights like housing, food, and health care that someone must provide (as in many European constitutions), has fed into the practical debate between the liberal view of government as protector (emphasizing military, policing, and the courts) and the progressive view of government as provider (emphasizing entitlements and the welfare state).
Justice Ginsburg’s impassioned Hobby Lobby dissent boldly articulates the progressive view. Consider her admonition that “[a]ccommodations to religious beliefs or observances . . . must not significantly impinge on the interests of third parties.” Two elements in this formulation are straightforward. The religious beliefs at issue in the case were those of Hobby Lobby’s Christian owners, who saw abortion as murder; the third parties were pregnant Hobby Lobby employees seeking to use an abortifacient. But where were the protectable “interests?” How did they arise?
The answer: Obamacare created a duty requiring employers to care in a very specific way for employees facing unwanted pregnancies. What proved critical was the specificity. Had the law simply required employers to “help” employees, each employer would have retained the right to provide that assistance in a manner consistent with his or her own conscience—a burden that Christians would have no trouble bearing. By specifying the precise nature of the assistance, Obamacare, a piece of progressive legislation, elevated the government’s conscience over that of the employer. Ginsburg’s dissent clearly approved of this elevation—and therefore disapproved of the Court’s preference for an accommodation that would serve the liberal value of protection (of both religious expression and those in need) at the expense of the progressive value of mandated provision (of a specific demanded service).
The Hobby Lobby dispute is thus iconic in more ways than one. As the government moves increasingly from its classically liberal role as protector to its contemporary progressive role as provider, it necessarily crowds out society’s other providers—a category to which religious institutions emphatically belong. It thereby threatens those religious institutions in the ways that Jonathan Last highlights. That threat is real and clear.
In this summer’s Obergefell decision, the primary source of Justice Kennedy’s pronouncement in favor of gay marriage was the Fourteenth Amendment’s due-process clause (rather than the equal-protection clause that Last emphasizes). Marriage, Kennedy wrote, “has promised nobility and dignity to all persons, without regard to their station in life,” but refusal to welcome gay couples into the institution of civil marriage has deprived them of this dignity without the due process of law.
The notion that “dignity” is bestowed by a government license, or even by government recognition, moves the government’s provider role into dangerous new territory. For while abortifacients, health care, or even health insurance are material goods relevant to physical welfare, dignity is an inherently spiritual good. Justice Thomas raised the appropriate warning signals in his Obergefell dissent:
Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. . . . Yet the [Court’s] majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect.
Thomas characterized this reasoning as a rejection of “the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the government.” And he concluded:
Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: one’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the state. Today’s decision [by the Court] casts that truth aside. In its haste to reach a desired result, the majority misapplies a clause focused on “due process” to afford substantive rights, disregards the most plausible understanding of the “liberty” protected by that clause, and distorts the principles on which this nation was founded. Its decision will have inestimable consequences for our Constitution and our society.
The Internet rewarded Thomas’s preference for classical liberalism over progressivism with a torrent of vitriol. Yet his conclusion, like Last’s, seems unavoidable. If Hobby Lobby demonstrated the ways in which government-as-provider limits the range of legitimate religious expression in the physical realm, Obergefell marks the beginning of government-as-provider’s limitation of religious expression in the spiritual realm. When government comes to occupy both realms, it will delegitimize anything that conflicts with government-approved morality. A fully progressive government empowered to provide for both the material and spiritual welfare of its citizens will thus go far beyond a conflict with the First Amendment’s free-exercise clause. In fact, if not in name, such a government will function as an established religion.
Classical liberalism provides the only known framework for a truly pluralistic society, —one that allows traditional and nontraditional communities to thrive simultaneously, limited only by the constraints that their own internal value systems place on them. America’s Jewish community has followed that path to success, as have numerous other minority, faith, and immigrant communities. The constitutional formula—no establishment plus free exercise—provides the best hope for such an outcome. The careful analytic tradeoff that RFRA embodies should guide the resolution of any tensions that arise when the needs of two communities conflict.
Competing political philosophies have given rise to differing conceptions of rights—and of the proper role of government in securing those rights. Religious institutions and adherents, who must always choose between fitting into the space provided by government and going “off the grid,” have a clear and obvious role in the outcome of that competition. Practicing Christians, as both the country’s largest committed faith group and the one most directly in the anti-traditionalist crosshairs, will play a disproportionate role in guiding the forthcoming battles. To lead effectively, these Christians will have to assume an unfamiliar role: forging a coalition of minorities to champion the liberal ethos. Should they choose to rise to that challenge, the experience of America’s Jewish minority will indeed have much to teach them.