[This is the first debate of a two part series]
WSJ July 27, 2019
Yes, American Religious Liberty Is in Peril Today’s administrative state is on a collision course with traditional religious communities, and the key battleground is sexual morality.
By David French | 1671 words
As the 2020 presidential contest begins, it’s worth reflecting on one of the issues that made Donald Trump president—religious liberty. And it’s worth remembering a moment that helped him to win.
The date was April 28, 2015, and the case was Obergefell v. Hodges—the case that created the constitutional right to same-sex marriage. But it wasn’t the recognition of gay marriage that cost Democrats. Public opinion had been trending strongly in that direction for some time. No, it was a moment buried deep in the oral argument transcript that sent shock waves through the conservative Christian establishment.
Justice Samuel Alito asked President Barack Obama’s solicitor general Donald Verrilli, Jr. whether constitutional recognition for same-sex marriage would lead to stripping federal tax exemptions from religious colleges that oppose gay marriage, in the same way that federal law strips tax exemptions from colleges that oppose interracial marriage or interracial dating. Rather than immediately answering “no,”Mr. Verrilli said, “It’s certainly going to be an issue.”
And just like that, millions of American Christians could easily and quickly imagine a future where the law held their traditional, orthodox religious beliefs—the beliefs of the Catholic Church and every significant evangelical denomination in America—in the same regard as it held the views of vile racists. But Christians who had been paying attention knew of this risk well before Obergefell. Christians who had been paying attention had seen a trend where legal activists at all levels of government had been aggressively expanding their regulatory and ideological attacks on religious liberty.
During my legal career defending free speech and religious freedom on campus, I saw more than 100 colleges attempt to de-recognize Christian student groups or eject them from campus for reserving their membership or leadership for Christian students. During the Obama administration, Americans watched his Department of Health and Human Services try to force nuns to facilitate access to contraceptives and abortifacients. Catholic adoption agencies that continued to place children with families according to church teachings faced a choice between closing and violating their deeply held beliefs. Christian creative professionals faced ruinous financial penalties for refusing to use their artistic talents to celebrate events they found offensive.
The list could go on, but more disturbing than the individual cases is the deep inversion of America’s constitutional principles that has empowered this legal assault. If governments ultimately prevail in these efforts, the resulting precedents would upend the constitutional order, rendering religious Americans even more vulnerable to future legal attacks, like the threatened loss of tax exemptions for Christian educational institutions.
The Constitution (including the Bill of Rights and the amendments passed in the wake of the Civil War) renders operational and enforceable the founding declaration that Americans “are endowed by their Creator with certain unalienable rights,” which include “life, liberty, and the pursuit of Happiness.” These core American liberties include rights to due process, free speech, assembly and the free exercise of religion. Every other American law—whether a federal statute, state constitutional provision, state law or university regulation—is subordinate to and subject to review under this Bill of Rights.
That does not render any constitutional right absolute, but it does require any government that seeks to encroach upon those rights to provide a sufficient justification for limiting the zone of liberty. In many cases, the burden on the government is strict, requiring it to demonstrate that its law advances a “compelling state interest” and that it does so through means that are “least restrictive” of the threatened right.
What is religious liberty under the Bill of Rights? It includes not only the right of “free exercise” guaranteed in the First Amendment, along with freedom from a state-established church, but also rights of free speech and freedom of association. This means that religious liberty isn’t just individual, it’s collective. Indeed, one can’t enjoy true religious liberty without also guaranteeing the right of voluntary association—the right of religious individuals to create their own institutions and to govern them according to religious rules.
As the modern administrative state expanded, it was inevitable that it would collide with religious communities and test the constitutional structure. As it did, it gave birth to two pernicious legal fictions.
The first (sadly echoed for a time by the conservative judicial luminary Justice Antonin Scalia) is that when statutes or regulations collide with free exercise, it is religious people who are engaged in a form of “special pleading” to exempt themselves from the law. In reality, however, when the administrative state collides with the Constitution, it is the regulators and administrators who are engaged in special pleading. They are seeking carve-outs from the supreme law of the land.
The second fiction is that claims of religious freedom—especially when they conflict with nondiscrimination law—are often just a pretext, an effort to win a license for bigotry. Time and again, isolated Christian requests for freedom of conscience are treated as if they’re akin to the terrible regime of Jim Crow.
This fiction played a decisive role in the recent Masterpiece Cakeshop case, involving a Christian baker who refused to design a cake to celebrate a gay marriage. In that case, the father of gay marriage himself, Justice Anthony Kennedy, condemned a commissioner on the Colorado Civil Rights Commission for describing the baker’s religious freedom argument as “one of the most despicable pieces of rhetoric that people can use.”This view, Justice Kennedy said, is “inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law.” And indeed it is. Traditional Christian sexual morality—the issue in many modern religious liberty conflicts—is rooted not in hate but in the earnest desire to obey a loving Savior.
In these cases, the issue isn’t whether a church you may like (or dislike) wins or loses, but whether the constitutional order prevails. Today, the rights to free exercise, speech and assembly confront the desires of lawmakers and bureaucrats to regulate, restrict and coerce. People of faith are the canary in the coal mine of the First Amendment, and religious Americans are right to believe that their freedom is under fire.
Marci Hamilton responds:
David French says that our constitutional tradition does not give religious believers absolute rights—even as he argues that they should be free, in most instances, from laws that they consider incompatible with their beliefs. But there is only one absolute right in the Constitution, and that is the First Amendment’s guarantee of the right to believe anything you want. The government may never prescribe beliefs.
Belief is a separate category, however, from religiously motivated conduct. The right to act a certain way based on one’s beliefs is necessarily less absolute, because actions can harm others.
There is something absurd about Mr. French’s claim that Christians in the U.S. are the victims of increasingly aggressive “regulatory and ideological attacks.” How much more power and money do religious institutions in this country need? They are victors, not victims.
They receive billions of dollars in property and income tax exemptions and government grants. Many of their philanthropic activities, through which they often proselytize, are heavily subsidized by taxpayers. The system is further tipped in their favor by tax laws that do not require religious nonprofits to disclose their donors or their actual wealth. As the Framers understood so well, a lack of accountability is a recipe for abuses of power.
Religious entities lobby all the time for exemptions that result in harm to others, like releasing clergy from being “mandated reporters” when they observe child sexual abuse. Even in those states where clergy are generally required to report, they seek “clergy-penitent privilege” for information heard in confession. A bill in California this year to remove this privilege only in cases involving suspected child sexual abuse died when Catholic bishops weighed in.
Religious groups have also won exemptions that directly harm children. In Idaho, for example, faith-healing parents are not held accountable when their children die from an easily treated ailment. Many states allow parents to fail to vaccinate their children on religious grounds. Many likewise allow religious parents to ignore compulsory education laws, in keeping with the spirit of the Supreme Court’s regrettable outlier of a decision in Wisconsin v. Yoder (1971), which allowed Amish parents to end their children’s schooling after 8th grade.
Now Mr. French and other conservative Christians want a broad exemption from the anti-discrimination laws based on the Supreme Court’s ruling that LGBTQ couples have a fundamental right to marry and to have a family. He says that Christian universities fear they will lose their tax-exempt status. That’s a red herring. Where are the lawmakers who would make that happen?
But it is hard to justify giving taxpayer dollars to an adoption agency that will not treat all loving homes as eligible for adoption. That is a plain public good. And in employment and the marketplace, how can the government allow segregation by sexual orientation?
Most religious Americans don’t even want what Mr. French says they do: a right to discriminate against others in the name of God. The country is filled with those like Mayor Pete Buttigieg, whose deeply held religious beliefs support same-sex marriage and LGBTQ rights to dignity and equality.
Let’s get back to the First Amendment, which protects true religious liberty. It is a powerful weapon against persecution by the government, such as the Trump administration’s attempt to impose a blanket ban on Muslim immigration. Most of the Founders were Christian, but as my University of Pennsylvania colleague John DiIulio is fond of saying, they also wanted “no religious faith to become a political faction.” None wanted to elevate sectarian church law over democratic public law.
Mr. French is a senior writer for National Review and a columnist for Time. He previously litigated First Amendment cases as a senior counsel at the Alliance Defending Freedom.
Ms. Hamilton is a professor at the University of Pennsylvania, CEO of CHILD USA, and the author of “God vs. the Gavel: The Perils of Extreme Religious Liberty.”