Religious freedom is not free

As part of his ongoing argument that conservative Christians in the United States are more like the persecutors than victims of anti-religious intolerance, the New York Times columnist David French has consistently pointed to victories at the Supreme Court as a kind of definitive proof of his case. “Religious liberty proponents haven’t lost a significant Supreme Court case in 14 years,” he says.

There’s much to unpack in French’s contentions, and perhaps his scorecard would change in light of the high court’s recent decision in the case of the Catholic virtual charter school in Oklahoma. But let’s take a moment to consider the significance of Supreme Court cases themselves. It may well be true that religious liberty advocates have had a good run at the highest court in the land over the last decade or so. As French puts it, “The Supreme Court has spent much of the past two decades correcting the overcorrection that began in the 1960s and 1970s,” and asserts that we have now reached “a different, sustainable equilibrium.”

But while victories at SCOTUS are certainly important, and can even be generationally transformative, they come at a high cost. Consider the case of Coach Joe Kennedy, whom French highlights. While Kennedy v. Bremerton was decided in favor of Coach Kennedy in 2022, the case had actually been going on for seven years. Actions against Coach Kennedy by the school district began in 2015, and it was only after the Supreme Court denied a request to consider the case in 2018 that they eventually agreed to take the case in 2022, eventually deciding in favor of Kennedy in a 6-3 decision. Was it a win for Coach Kennedy in the end? Indeed it was. But did it come at the cost of emotional, spiritual, and legal struggle? Most certainly it did.

And for each claimant who someday receives vindication at the Supreme Court, there are hundreds more whose cases never make it to that august venue and whose demands for justice are left unresolved. While French targets conservative Christians in his analysis, the fact is that religious liberty is a costly good sought by Americans of many different creeds and confessions. Already this year the Supreme Court denied a request to review the case of Apache Stronghold v. United States, which involves the proposed transfer of land held sacred by the Apaches from the United States government to a copper-mining operation. The Apaches had challenged the move, arguing that the mining would destroy Oak Flat.

Here we have a very clear opposition between economic interests and religious liberty claims. The economic case is clear: the mining operation is estimated to generate “$1 billion a year for Arizona’s economy and create thousands of local jobs.” But what of the religious interests of the Apaches? As Justice Neil Gorsuch put it in his dissenting opinion joined by Justice Clarence Thomas, “the government and a mining conglomerate want to turn Oak Flat into a massive hole in the ground.” The Princeton legal scholar Robert P. George characterizes the stakes of the case this way: “The Apaches’ religious practices at Oak Flat represent the highest expression of their spiritual lives. If Oak Flat is destroyed, it will end Apache religious existence as it has been practiced since before the United States existed.”

Respecting religious liberty is indeed costly. It takes the investment of those committed enough to their faith not to bow to social pressure and legal threat. It takes the work of attorneys and advocates to take cases to the courts and defend them in the public square. It takes the time and tears of years of seeing justice deferred without any guarantee of vindication in the end. And in cases like Apache Stronghold v. United States, it requires favoring these deeply significant spiritual rights over the tangible benefits of economic development.

A win at the Supreme Court is most certainly something to celebrate. But every such victory is by necessity bittersweet. Each person who is granted his or her day in the highest court has endured great cost, and in some way also represents hundreds—even thousands—of others who have had justice denied. Given the nature of humanity and political economy, there will always be temptations to cut deals or compromise in ways that disfavor religious practice. Religious liberty is costly and for that reason its protection requires continual vigilance. So we can cheer when justice is done at the Supreme Court—even as that joy is tempered by sorrow at the costs that have been endured and by the justice that inevitably remains unrealized on this side of eternity.