Religious Liberty: Not Just for Social Conservatives

An Arizona federal court flips the script.

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The worst way to approach American civil liberties is to support or oppose them based on your limited understanding of who, exactly, will benefit from freedom. In recent months, a populist and nationalist segment of the conservative intellectual world has been re-evaluating longstanding First Amendment doctrines that grant private citizens “viewpoint neutral” access to public facilities (a legal term for describing equal access for everyone, regardless of their religion or ideology) because very small numbers of drag queens have started exercising the same liberties that thousands of Christian churches and student groups have used to hold worship services and bible studies in schools, libraries, and other public buildings. 

Not content with contesting events like “drag queen story hour” in the marketplace of ideas, they’d limit freedom for everyone rather than see a small number of Americans exercise liberty in a way they don’t like. 

At the same time, a former rock-solid Democratic commitment to religious liberty has eroded into what often amounts to outright opposition. Why? Because religious liberty is increasingly seen not as the last line of defense for marginalized American faith communities, but rather as a legal weapon wielded against gay Americans by conservative bigots. Again, because the liberty is exercised in a way that its previous advocates don’t like, its previous advocates have now become opponents. And so a law—the Religious Freedom Restoration Act (RFRA)—they once sponsored, supported, and signed is derided as an oppressive relic of a less enlightened past. An increasingly secular party wonders why people of faith should enjoy any special protection under the law. 

In reality however, when each party rejects the liberty of their opponents, they undermine the liberty of their allies. Conversely, when their enemies win, their friends win as well. 

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  1. Avatar photo
    jhc

    I like your article. And I was glad to hear of the court's decision: more power to morally justifiable civil disobedience!

    But that said...

    1. When you wrote, "A religious expression does not need to be expressed from within an established church, nor does it have to be expressed with theological rigor to receive protection under the law," you seemed to me to be painting with too broad a brush.

    Let's try a little reductio ad absurdum. Would Pastafarians ("What are we for? All that is good! What are we against? All that is not good!") be protected by RFRA? How would we know when their actions "were exercises of their religious faith"? Who knows where their moral compasses might be pointing?

    2. You wrote: "It was in essence claiming that the defendants were 'interfering with a border enforcement strategy of deterrence by death.' That’s a hideous deterrence strategy to prevent illegal immigrants from committing the misdemeanor of illegal entry."

    Wait... What I take to be a statement by the court is (again) too broad. The government doesn't actively punish those who illegally cross the border with death (at least not to my knowledge).

    Let's try that "Pastafarian reduction" again. Would a Pastafarian seat-belt activist be justified in opening your car door at a traffic signal and forcibly fastening your seat belts? And if s/he were prevented from doing that by police (as one would hope), would the State claim that s/he was “interfering with a traffic safety strategy of deterrence by death”?

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  2. William Green

    ". . . entering the refuge without the necessary permits . . . to save the lives of illegal immigrants who were making their way across 'one of the most extreme environments . . .' " So, with this recent ruling, why don't these Unitarians now enter the reserve and build a motel for these illegal immigrants?

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    td12212

    The argument seems a bit weird. I'm no lawyer but it seems to me based on this theory that I could start a church called "speed freak pentecostal revivalist church" and as a part of that churches teaching have that all members need to drive above the speed limit. This seems absurd but appears to be something that this reading of the law allows.

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    Pat Riot

    For millions of Americans the Christian church has become synonymous with the Republican party with predictable results: opposing Christianity is the same thing as opposing Federal cuts in Medicare, stricter and more cruel immigration policies, lower taxes for the rich, Trump, and so on. The more polarized the country becomes, the more acute this effect.

    We can debate the academic truth of this all we want, but the "man on the street" non-engaged, non-intellectual view comes from high-level branding over time, and the GOP started this campaign in the 1980s.

    And to be sure, it cuts both ways: polarization is minting both atheists and believers. But the overall trend tracks the Republican/Democrat trend: the GOP "side" is losing followers over time, as is the Church.

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      Paul Reichardt

      One problem with this argument is while that association might be true of right/center-right political Christianity—Andrew Sullivan used to refer to this as “Christianism”—it’s not necessarily true for the association to the Christian church in general, to which essentially all Americans—the majority of which are at least culturally Christian--have been sufficiently exposed and formed opinions about before Trump came along. Like for the cases of the Jerry Falwells and Pat Robertsons, I suspect the Trump association will fuel the zeitgeist of continued hostility--and often outright bigotry-- among liberals and the left towards politically-active Christianity.

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        Pat Riot

        Of course it's not "true" and, for instance, half of America's catholics voted for Hillary.

        However, from a brand-name perspective, especially among the younger tranches, Christianity is associated with the Republicans. Obviously political Republicans would think that's a good thing, but that's only 29% of the country and polarization is turning the other 71% against it.

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    Paul Reichardt

    Great article, Mr. French. This case is interesting.

    I’m not a lawyer and I am sympathetic to the direct action civil disobedience of the Unitarian activists, but this judgement still feels like it establishes a religious-based carve-out that exceeds the 1A guarantee of free-exercise. The activists were acting, no doubt, on a sincerely-held humanist conviction that was perhaps informed by their faith but it was not specifically compelled by it, as say, would be the cases of indigenous tribes ingesting peyote on federal lands as a religious practice. For example, one can imagine an atheist or secularist liberal pro-immigrant activist going along with this group with just as sincere convictions, but would not be immune from prosecution under the RFRA whereas his Unitarian partners would.

    We can also can flip it back around a imagine an pro-life Catholic group taking direct action against an abortion clinic—barring acts of violence, for argument’s sake, what criminal acts of petty vandalism, trespassing, harassment, and/or obstruction of traffic (to block patient access or medical supply trucks) could they commit for which this reading of the RFRA wouldn’t automatically give them immunity from prosecution?

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      Michel Phillips

      The RFRA doesn't give people immunity from prosecution. It raises the level of "scrutiny" that the court applies. So the government action might be upheld, but it has to pass a strict test.

      I don't think destruction of property, trespassing on private property, or most forms of harassment would be allowed even under the "strict scrutiny" of government action mandated by the RFRA.

      By the way, the RFRA was enacted with wide bipartisan backing, uniting conservative religious people, conservative libertarians, the ACLU, and (IIRC) Ted Kennedy.

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        Paul Reichardt

        Thanks for the clarification.

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  6. Ann G

    I loved the clarity of the first two paragraphs. Well stated. But then we go murky. The fact is that it is true that the religious issue with gays is seen as some discrimination afoot. It needs to be clearly stated what the religious community is asking for and what it is not. Clear enough for anyone to understand, and I don't see that clarity anywhere.

    My problem with those leaving food for the distressed migrants is that ya gotta follow the rules. If a permit is applied for and denied, even if that outcome was expected, then it's time to work to change the rule, not engage in illegal behavior. Yes, that's hard to do and efforts can get crushed by an unfeeling bureaucracy. But that's when it's time to go to Mordor, Frodo, so start walking even though the way is uncertain.

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  7. Ted Lehmann

    David - I read this piece with an interest in finding your take on the issue of freedom "from" religion, with specific reference to forced school prayer. As far as I know, no student is ever prohibited from private prayer. Am I mistaken?

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      David V

      They're not even prohibited from public prayer so long as it is not directed by the school and/or it does not disrupt the learning environment. So if 4 of my students want to pray together before a test, they have the right to do so as long as it's still passing time and I'm not yet trying to give instructions, etc.

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    Kevin Johnson

    David, this is a great piece, which puts a vital and broad issue in clear language with a concrete example. So much of what plagues us, from press double standards, to policy double standards as urgent as “who can potus order killed under what circumstances?” have been reduced to “which side will this help.” The ACLU has abandoned first principles, many, many conservatives have as well. Your direct experience with First Amendment issues highlights this in one context which is vital all on its own. But if we can just marginally increase the number of people of good will on both sides who see its application across the political and policy divide, it will do more to help our country than almost anything. Sorry to seem breathless, but you touched a huge nerve here.

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    Kevin Durant?

    It was in essence claiming that the defendants were “interfering with a border enforcement strategy of deterrence by death.” That’s a hideous deterrence strategy to prevent illegal immigrants from committing the misdemeanor of illegal entry. Our nation should not be using the threat of death to deter the commission of the most minor crimes.
    ——————————————
    Up next: when you climb over the steel slats/wall you can fall and break your ankles and

    “Our nation should not be using the threat of broken ankles to deter the commission of the most minor crimes”

    Therefore, you can keep your ladder there and I guess the tunnel is fine too....oh and don’t get me started on concertina wire and tetanus!!

    (I am sure there are holes in this legal theory but it was the best I could do on short notice 😃😃)

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      Pat Riot

      So what, they should shoot at people who are caught hunting without a license?

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  10. Avatar photo
    Kevin Durant?

    Requirement 1: Are you a church?
    Legal hurdle: When we ask if you are a church do you say “Yes”?

    Requirement 2: Are these your firmly held beliefs?
    Legal hurdle: Have you established you believe in it by doing it?

    Requirement 3: Is the federal government involved somehow?
    Legal hurdle: Not really a hurdle because they are involved in everything

    Application:
    Tell us you are a church when you are doing something and when you are apprehended whisper the password ‘undue burden’ to the officer

    If you think I’m overreacting, it took about 7 seconds for $3,000 decorative cakes to be claimed as a ‘public accommodation’

    I’m not saying they should have done anything differently. Insane legal claims being taken seriously is the price of freedom.

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