Religious Liberty in 2024: Healing our deep divides

Americans are a litigious people and no less so in clashes over religious liberty. Every Supreme Court term, the court wrestles with questions about the place and importance of religion in society vis-a-vis other interests—like public health or LGBTQ rights.

Those deep disagreements often take the form of lawsuits, whether over the right to have religious convictions accommodated in the workplace, allow student groups to require leaders to subscribe to their statement of faith, or permit religious organizations to hire only like-minded people.

In a 2023 book, Religious Liberty in a Polarized Age, constitutional law scholar Thomas Berg takes on hot topics. While not all Christians will agree with him, they’ll likely agree with his goal: to protect religious liberty while also reducing the heat over such disputes. I recently conducted an email interview with Berg, the James L. Oberstar Professor of Law and Public Policy at the University of St. Thomas School of Law in Minnesota. Here are edited excerpts from our conversation.

Polarization is nothing new in American society, and yet you rightly point out that the divisions—and the rhetoric—have become sharper and more heated in recent years. Sometimes it seems as if we are having two different conversations, talking past each other, presuming the worst of our opponents. How have we come to this point?

Social scientists say it began with the “sorting” of political parties from loose coalitions into more ideological blocs. For example, Democrats historically had Southern conservatives and Northern liberals. That’s changed dramatically. When you disagree with political opponents on every issue, not just some, it magnifies distrust. The divide also runs through many social-cultural features: Biden won the vast majority of counties with a Whole Foods; Trump, the large majority of those with a Cracker Barrel. Add to this our gerrymandered districts, which encourage extreme candidates, and cable and social media, which magnify conflicting voices and actually use algorithms that send people negative news about the other side.

You make the argument that even religious liberty disputes have fueled this polarization. How do you see that continuing to play out in the coming year?

My book emphasizes two sets of disputes: attacks on the freedom of Muslims in the name of national security, and attacks on the freedom of religious conservatives (primarily Christians, but also Jews and Muslims) in the name of progressive interpretations of nondiscrimination. Although conservatives have won several recent cases, I expect they’ll face continued legal pressure, especially now that federal employment law has been read to prohibit LGBTQ discrimination. Do religious schools or social services have the right to require standards of sexual conduct from their employees? Do they retain that right when they accept government funds or other benefits? Several unresolved constitutional and statutory issues will determine the answer to those questions.

Your argument is that religious freedom should be a calming influence and not aggravate these often ugly disputes. Doesn’t that require a measure of trust many don’t seem to be able to muster? Where do we begin?

It requires small steps that can reduce distrust incrementally. I do argue in the book that the general direction must be bipartisan: laws protecting LGBTQ Americans from discrimination in employment, housing, etc., with substantial exemptions protecting objecting religious organizations and individuals. Utah enacted such a law in 2015, and it’s increased trust between those two groups. Bipartisan protections are necessary in practical terms: Bills that protect solely religious liberty will pass only in the deepest-red states, not in the states where conservatives most need protection.

You are not alone in arguing that religious liberty, to be meaningful, must mean religious liberty for all faiths. And yet looking around the world, many Christians are skeptical that the Islamic faith produces tolerance for other religions. How do you respond to those concerns?

During the late 1800s, many Protestants supported discrimination against Catholics—measures we now recognize as examples of religious hostility. The defense of this hostility was that popes, and some officially Catholic nations, were suppressing Protestants. But that argument ignored the fact that American Catholics believed in freedom and tolerance like other Americans did. The same holds with American Muslims. The overwhelming number simply want to live out their faith in a free society. Indeed, they can help attest to the importance of faith in our secularizing times. Of course, extremism and terrorism are threats that demand great vigilance from security agencies, but that’s involved very small numbers in America.

Many Christians opposed federal legislation like the Fairness for All bill that guaranteed LGBTQ nondiscrimination rights with meaningful religious exemptions. What’s their best argument against such a law? Why do you believe it was a good path forward?

Skeptics of the Fairness for All bill correctly note that, with respect to nondiscrimination laws and religious freedom, the devil is in the details. Religious-freedom protections in such a bill must be strong, not easily evaded. I support Fairness for All because it has carefully constructed provisions that substantially achieve this goal. I wouldn’t claim it’s perfect—but the perfect shouldn’t be the enemy of the good. A legislative solution protecting both sides would be helpful, even crucial, to preserving religious liberty’s broad appeal in the future. The ongoing polarization over religious liberty harms its appeal, especially among younger Americans increasingly tempted to view it as special pleading for conservatives.

Opponents of Fairness for All worry that it won’t settle things because progressives, if they gain strength, will simply eliminate the religious-freedom protections. But if they gain strength, it will be better to make them try to eliminate an existing protection than to seek to induce them to include protection in a law they have the votes to pass. Moreover, the real contest for hearts and minds is over the ideological middle: people who are willing to sympathize with conservatives’ religious-freedom claims but who also sympathize with LGBTQ persons’ claims to basic nondiscrimination in secular employment, in housing, and in service by commercial businesses.

The Virginia Supreme Court recently gave a remarkably robust interpretation to a state constitutional provision protecting religious liberty—one greater than that afforded by the First Amendment. Do you agree with the majority’s rationale? What are the ramifications of the ruling?

Virginia’s constitution pioneered in guaranteeing people not mere “toleration” but an “entitle[ment] to the free exercise of religion.” This language, the court held, protects not just beliefs but actions based on those beliefs, unless the act harms “public peace or good order” and there aren’t less restrictive ways of preventing the harm. The case’s facts dramatize this rule’s correctness. A school district fired a teacher because he would not use a transgender student’s preferred pronouns—even though, his complaint lays out, he used the student’s preferred first name and avoided pronouns for all students. Assuming those facts (and there’s no contradictory evidence yet), the court correctly held that the school should be liable for refusing simple solutions that would protect the teacher’s conscience and avoid any discrimination against the student.

You write that, “Today’s disputes over religious freedom often have aspects that can be called ‘ironic.’” Can you elaborate? How is this a helpful concept?

The irony I reference occurs when a group attacks others’ freedom and equality using rationales that undercut its own freedom and equality. Christians like Pat Robertson have attacked Islam as a political movement trying to dominate America; ironically, evangelicals face similar attacks claiming they’re a political movement “using religion to cover bigotry.” Recognizing such ironies can generate sympathy—for example, a recognition that American Muslims, like evangelicals, simply want to live their faith in society. We need sympathy across ideological lines today: not agreement with beliefs we oppose, but understanding of the predicament of those believers trying to live their beliefs in face of governmental pressure.

Hope in the midst of these religious liberty battles can be a challenge. Are you hopeful?

Since protecting both sides is important, I’m hopeful in noting that the Supreme Court has already done so—protecting religious liberty vigorously in multiple decisions while also protecting key LGBTQ rights in civil marriage and employment. Another bipartisan step was the 2022 Respect for Marriage Act, in which Congress protected same-sex marriage while also embracing important protections for traditional religious organizations. Many conservatives opposed the act. But its religious-liberty provisions can help stop a range of legal threats, especially potential threats to federal tax exemptions and other benefits. The lesson is important: In our pluralistic society, acknowledging other interests can help achieve real protections for religious liberty.