- October 26, 2020
Thomas C. Berg
It’s common knowledge that Americans are more deeply, and dangerously, polarized today than in decades. And religious liberty, a basic constitutional value, is among the polarizing issues. In recent high-profile cases involving same-sex weddings, Muslim immigration, and Obamacare’s insurance mandate, divisions on religious liberty have traced divisions over the underlying policies. Many progressives broadly dismiss liberty claims for conservative Christians; many conservatives dismiss the liberty and equality of Muslims.
This dynamic undermines a key purpose of religious liberty. Today’s polarization, in which the parties “sort” based on numerous cultural as well as ideological features, has made each side fear and resent the other. Religious liberty arose in the West precisely to calm violent conflicts, for example between Protestants and Catholics, and the fears that drove conflict. Religious liberty helps people of fundamentally different views coexist, free from fear of being penalized for living consistently with their deep identities. But today religious-liberty disputes reinforce and aggravate underlying divisions. Americans may come to view religious liberty as merely a tool that each side wields to serve its policy goals.
Today more than ever, we must renew our commitment to religious liberty for all, even for “the thought we hate” (Justice Holmes). That means protecting religious liberty (1) strongly and (2) equally for all, while also (3) drawing careful lines to take proper account of other interests. This approach has consequences for doctrines in several areas.
- Free exercise and government regulation. Issues concerning free exercise of religion have dominated recent debates. Protecting free exercise effectively for all requires recognizing the multiple threats to it. Even facially neutral government actions can be motivated by religious hostility. Muslims often face such measures, as is shown in opposition to mosques and to supposed “Sharia laws,” and in President Trump’s ban on travel from Muslim-dominated nations. But religious liberty should also block laws that, although not affirmatively hostile, reflect ignorance or indifference concerning religious practices. Thus, a law that substantially burdens religious practices, even if it’s “generally applicable,” should require strong justification. The Supreme Court rejected that standard 30 years ago in Employment Division v. Smith, but this term—in the case involving Philadelphia’s disqualification of Catholic agencies from facilitating foster care—the Court will reconsider Smith and may again protect religious exercise, of all faiths, from generally applicable laws. Another important right for organizations of all faiths is freedom of internal governance, which the Court reaffirmed in July’s "ministerial exception" cases.
While protecting religious freedom strongly, we must also acknowledge limits on it set by other interests and rights. For example, by drawing careful lines, we can protect both same-sex persons and religious organizations in the wake of the Court's recent Title VII decision (Bostock) prohibiting LGBTQ discrimination.
- Government funding, government speech. Freedom for private groups and individuals to pursue religious commitments also calls for government to include religious entities equally in benefits programs supporting education or social services. In recent decisions, mostly recently Espinoza (2020), the Court has shifted strongly toward requiring equal inclusion of religious providers in aid programs. That trend ought to continue. By contrast, the Court should retain significant Establishment Clause limits on government’s own religious expression in official prayers or religious displays. In an increasingly pluralistic society, such actions inevitably favor one set of religious views, rather than promoting a plural set of choices by individuals and groups.
Thomas C. Berg is the James L. Oberstar Professor of Law and Public Policy, University of St Thomas School of Law (MN). He filed amicus briefs in several of the Supreme Court cases discussed in this article. He will explore these issues and ideas further in two Burke, Warren, MacKay & Serritella webinars on October 28 and November 18, 2020.