An article of peace

Back in 2016 in the wake of the Supreme Court’s Obergefell decision that recognized same-sex marriage as a constitutional right, I finally saw the crisis take shape that I’d anticipated for nearly two decades. How so? Because in 1999, I’d worked as a summer law associate with Prison Fellowship trying to pass the Religious Liberty Protection Act and had witnessed stout opposition from gay rights campaigners. Suddenly, I realized that the LGBTQ community identified religious liberty as a threat and would seek to confine free exercise of religion as much as possible.

When the Obergefell ruling came down, the crisis took shape. Religious liberty and gay rights were on a collision course. The stage was set for the American left to use anti-discrimination legislation and regulations not only to impose upon Christians in the wedding trades such as florists and bakers, but also to push Christians out of the nonprofit sector anywhere they insisted upon a male-female view of marriage. Few Christians ever realized how serious the threat was and is.

Religious liberty has gone from being primarily a concern of religious minorities to a much broader kind of political issue because of the continuing clash of religious and secular progressive sensibilities powered by the revolution in human sexuality. President Trump’s recent establishment of a White House Religious Liberty Commission is a sign of how much more prominent the issue has become. The commission is specifically tasked with evaluating threats to religious liberty and seeking to find ways to enhance protections. Notably, an examination of the history of American religious liberty is part of the agenda. Historically speaking, it would make sense to emphasize the degree to which religious liberty is one of the most distinctive American values. Those who argue First Amendment religious liberty somehow skirts the law or operates as a “get out of jail free” card ignore the fact (as Steven D. Smith has pointed out) that free exercise is part of our most fundamental law, the U.S. Constitution.

The commission’s roster reveals some serious heavy hitters in the area of religious liberty. Ryan Anderson, author of a previously banned book on transgenderism and a significant advocate of religious liberty; Rabbi Meir Soloveichik of Yeshiva University; Allyson Ho, a distinguished appellate lawyer who has argued before the Supreme Court; and Kelly Shackelford, who heads the religious liberty litigation firm, First Liberty, all represent tremendous engagement with issues involving the free exercise of religion. Shackelford, an evangelical, is a kind of pioneer in the field and has had success at the highest levels. The thrice-elected lieutenant governor of Texas, Dan Patrick, heads the commission. The Roman Catholic archbishop of New York, Cardinal Timothy Dolan, also serves on the commission and was one of the key architects of the Fortnight for Freedom campaign carried out by the Catholic church in 2012 and which has continued as Religious Freedom Week in years since.

While it is true that the Supreme Court has been relatively friendly to religious liberty claims in recent years, the better course of action is to attempt to make changes in law to better support the constitutional right. As an example, the Religious Freedom Restoration Act (RFRA) of 1993 was the primary reason Hobby Lobby survived the Obama administration’s HHS mandate that employers provide birth control and abortifacients in their insurance plans. Without the protection of RFRA, the company would have either been ruined by enormous fines or forced to sell.

The problem is that in the years shortly after RFRA’s passage, the coalition for religious liberty fell apart. A later attempt, the Religious Liberty Protection Act, aimed at pressing for greater protection in the states. That legislation ended up being greatly diluted into the Religious Land Use and Institutionalized Persons Act and was of no help to claimants such as the Colorado baker Jack Phillips, who continues to be targeted in his state. Further, it is the case that recent legislation from the secular left has explicitly aimed to exclude or limit the operation of RFRA.

The commission will produce a report, which we can hope will be influential. But what is important is that this emphasis on religious liberty not be an isolated event of the kind that pops up as a public policy fad. Rather, religious liberty deserves sustained attention by American citizens and officials. The great Catholic political theorist John Courtney Murray helped lead his church toward the embrace of religious liberty in the middle of the 20th century. He effectively argued that the religion clauses of the constitution act as “articles of peace.” Contrary to secular progressive arguments that religious freedom somehow deforms democracy, Murray noted that honoring religious liberty is deeply practical as it helps people live together in a pluralistic society. Let’s hope that President Trump’s commission can remind Americans how important it is to honor faith rather than try to steamroll it into submission.