National Conservatism Is a Direct Threat to Religious Freedom

I want to start with two incompatible quotes from two different courts. The first, from Justice Samuel Alito (in an opinion joined by Justices Thomas, Barrett, and Gorsuch) represents the conventional understanding of free speech and religious freedom that conservatives and progressive civil libertarians have advanced for decades—that the concept of “free speech” encompasses the views an institution chooses to endorse and also the views an institution refuses to host. 

In Yeshiva University v. YU Pride Alliance, the Pride Alliance, an LGBT support and advocacy group, is suing one of America’s foremost Jewish universities to force it to “recognize” the organization, despite the fact that Pride Alliance advances specific views of sexuality and gender identity at odds with Yeshiva’s. 

A New York state trial court ordered Yeshiva to host the group, and Yeshiva ultimately appealed the order to the Supreme Court. A five-justice majority rejected Yeshiva’s appeal, but not on substance. Essentially, the court said that Yeshiva had come to SCOTUS too soon, before it had jumped through the proper appellate hoops in the state courts of appeal. But the four-justice dissent—citing the court’s clear precedent—left little doubt how this case will come out if it reaches the court again. Here’s Justice Alito:

Unless a stay is granted, Yeshiva will be required to recognize the Alliance as an official student group and to grant it all the privileges extended to other such groups. As the Alliance has contended, this would force Yeshiva to make a “statement” in support of an interpretation of Torah with which the University disagrees.

Now let’s move on to the 5th Circuit Court of Appeals. On Friday afternoon, it defied a previous Supreme Court ruling blocking enforcement of a new Texas social media law that sharply restricts the ability of large social media companies to moderate their content. Judge Andrew Oldham’s majority opinion contains this astonishing statement:

We reject the Platforms’ efforts to reframe their censorship as speech. It is undisputed that the Platforms want to eliminate speech—not promote or protect it. And no amount of doctrinal gymnastics can turn the First Amendment’s protections for free speech into protections for free censoring. (Emphasis in original).

Wait. What? The ability of an organization to exclude—to prevent others from using its platform and resources—has been a core component of multiple First Amendment fights for decades. Here’s a partial list of key SCOTUS cases:

• Miami Herald Publishing Company v. Tornillo (1974)—A newspaper can’t be required to publish a political candidate’s response to a hostile editorial. 

• Hurley v. Irish-American Gay, Lesbian, and Bi-Sexual Group of Boston (1995)—Parade organizers possessed a First Amendment right to exclude an LGBT group from an annual St. Patrick’s Day parade.

• Boy Scouts of America v. Dale (2000)—The freedom of expressive association encompassed the Boy Scouts of America’s right to prohibit gay scoutmasters.

• Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012)—The Free Exercise and Establishment clauses of the First Amendment together prevented the Obama administration from using federal nondiscrimination law to punish a Christian school for dismissing a disabled ministerial employee. 

• NIFLA v. Becerra (2018)—The First Amendment prevents the state of California from compelling a pro-life advocacy center from advertising for free and low-cost abortions in the state. (I filed an amicus brief in this case.)

And this term the Supreme Court will decide 303 Creative v. Elenis, a case in which a graphic artist asserts that she has a First Amendment right not to design a website for a same-sex wedding. I filed an amicus brief in that case as well, on behalf of the graphic artist. 

Any sharp-eyed First Amendment lawyer will know that I left multiple cases off that list. But the point is: The right to exclude—to censor—is an indispensable element of the rights of free speech, free exercise of religion, and freedom of expressive association. 

But nationalist conservatism has a fundamentally different view of free speech, state power, and free exercise of religion. In an excellent report from last week’s National Conservatism Conference, Reason’s Stephanie Slade describes nationalist conservatism as a “burgeoning political faction [that] has at its heart a fundamentally favorable orientation toward federal power and not a mere revivification of national pride.”

The goal isn’t just to compete in a marketplace of ideas and protect yourself from government censorship, but rather to acquire government power to affirmatively “destroy opposing ideologues.” 

This quest for power is evident in the desire, for example, to overturn decades of First Amendment precedent to stop drag queens from using public facilities for public events, to prohibit particular racial viewpoints even in private corporate diversity training programs, and in the goal to force private social media companies to host expression they find abhorrent.  

The goal, in other words, is to replace various legal doctrines that mandate viewpoint neutrality with a form of conservative and religious viewpoint supremacy. Here’s the national conservatism “Statement of Principles” on God and public religion, signed by dozens of leaders of the national conservatism movement:

No nation can long endure without humility and gratitude before God and fear of his judgment that are found in authentic religious tradition. For millennia, the Bible has been our surest guide, nourishing a fitting orientation toward God, to the political traditions of the nation, to public morals, to the defense of the weak, and to the recognition of things rightly regarded as sacred. The Bible should be read as the first among the sources of a shared Western civilization in schools and universities, and as the rightful inheritance of believers and non-believers alike. Where a Christian majority exists, public life should be rooted in Christianity and its moral vision, which should be honored by the state and other institutions both public and private. At the same time, Jews and other religious minorities are to be protected in the observance of their own traditions, in the free governance of their communal institutions, and in all matters pertaining to the rearing and education of their children. Adult individuals should be protected from religious or ideological coercion in their private lives and in their homes. (Emphasis added.)

This paragraph describes a form of religious supremacy that relegates dissenting religious believers to the “private” sphere, while granting Christianity a position of powerful public privilege.

But we shouldn’t fool ourselves into believing that the “moral vision” of the signatories broadly reflects the diversity of Christian belief and practice in the United States. After all, there are churches that host drag queen events, as well as churches that condemn drag queens. Both the Democratic and Republican parties are completely dependent on their Bible-believing, church-going base constituencies (white Evangelicals for Republicans and black Protestants for Democrats). 

Are national conservatives thus satisfied when either party wins, so long as a Christian (Joe Biden, for example) is at the helm?

Of course not. For the term “moral vision” to mean anything, it has to mean a particular version of professed Christian belief and practice. And thus national conservatism threatens to blast apart the fragile peace between and among Christians that exists in the United States. It was not long ago, for example, that Protestant politicians were using the power of the state to pass explicitly anti-Catholic Blaine Amendments in 37 American states. 

Blaine Amendments—which purported to deny public support for so-called “sectarian” education—were specifically designed to preserve Protestant religious supremacy in public schools. The state’s Protestant Christian “moral vision” was deeply hostile to the Catholic faith. 

The inevitable result of privileging “Christian” expression and convictions is privileging the dominant Christian faction at the expense of others. And those in power consider those others not truly “Christian.” Thus their rights are limited to the secondary, “private” rights of the other non-Christian faiths. 

It’s painfully naive to believe that a doctrine of religious supremacy will ultimately benefit conservative strands of Christianity: The United States is on pace to become a Christian-minority nation by 2070, if not before. The brand of conservative Christianity advanced by Christian nationalist conservatives is already a minority faith in the United States. They can certainly win fleeting victories by attaching themselves to other American coalitions, but once they’re out of political power they will sorely miss the First Amendment doctrines they intentionally degrade.

There’s so much to say on this topic, but I’ll conclude with this—don’t let anyone refer to robust protections for free speech and religious liberty as mere “procedural liberalism,” a form of government drained of moral meaning. 

No, the protection of faith against explicit state discrimination and the granting of equal rights to free speech and expression is an acknowledgment both of human frailty (the government is always a deeply flawed instrument of coercive moral formation) and human dignity (we should grant to others the rights we seek to exercise ourselves). It is deeply and profoundly just, and the effort to capture the levers of power to “reward friends and punish enemies” isn’t just an obvious threat to liberty. It’s a threat to justice itself.