What is the Future of Religious Freedom in the United States?

Marci Hamilton

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In the future, we will see more balance between public policy and religious organizations. In the past 20 years, religious organizations have overstepped, trying to obtain what they call “liberty” but which is really just the power to construct public policy. They pushed for the 1993 Religious Freedom Restoration Act and the 2000 Religious Land Use and Institutionalized Persons Act, both of which give religious organizations more power to defeat the law than they’ve ever had in the history of the United States. The result has been that many Americans have soured on religious organizations and their attempts to control public policy.

Twenty years ago, there was a strong sense in the United States that religious organizations do no harm and that they are good for us. Many states had not yet seen cases involving clergy abuse, and many had permitted religious organizations to avoid liability because they were religious. But now we see, right on the front page, headlines about the cover-up of child sex abuse across a wide spectrum of religious organizations. As the public and the judiciary have become more educated about the prevalence of the cover-up of abuse across all religious organizations, states, the courts and the people have been less willing to give religious organizations a pass.

If there’s a neutral and generally applicable law, it is expected that it will govern religious believers. That’s the original balance between religious liberty and order, which the Supreme Court calls “ordered liberty.” It was quite clear in the framing of the First Amendment, and also in state constitutions, that licentiousness was intended to be excluded from protection.

We also see overreaching now with religious organizations’ entrenched opposition, not just to abortion, but also to contraception in the debate about the Affordable Care Act. The Obama administration is sticking to the bottom line that women have to be able to obtain contraception and reproductive services even if the organization does not believe in providing them.

With the January 30 release of amended regulations, the Obama administration is permitting religious organizations—from universities and hospitals to churches and synagogues—to exclude contraception and reproductive services from their health care plans, while ensuring that women are still able to get independent coverage at no cost. For-profit businesses, though, must include reproductive health coverage in their health care plans.  That is the balance struck in the federal tax law and the federal civil rights laws, particularly Title VII.

This is the kind of balancing act that we’re going to see in the future. We’re at a point in history in which the pendulum had swung too far in favor of religious organizations. But as they continue to grasp for more than the Constitution requires, the pendulum is swinging back to an era of common sense.

Marci Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law and author of God vs. the Gavel: Religion and the Rule of Law.

Robert Destro

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The future of religious freedom in the United States will look just like the history of religious freedom in the United States up to now. Religious freedom has always been a struggle, with a series of competing religious factions challenging one another in the public square and seeking accommodation of their rights in the courts. One can go as far back as the 17th-century theologian Roger Williams, who was persecuted for not following the zeitgeist of the time by not observing the Sabbath, through mid-19th century struggles over school prayer led by Catholic immigrants, to today’s fight over the Obama administration’s mandate that religious organizations such as the Catholic Church provide access to insurance coverage for birth control drugs and devices for their employees.

What people are missing in the debate over the birth control mandate is that it isn’t about birth control at all; the issue is whether the government has the authority to define what religious institutions are. Today there is a tendency to confine the scope of institutional religious freedom to what is done within the four walls of the church and to exclude what is done in the public square. Religious institutions are so narrowly defined that our government wouldn’t even consider Mother Teresa and Jesus Christ as having religious ministries. Many people argue that if the Church goes into the public square, it must comply with the same rules as everyone else. That’s true—to a point, but here the government is trying to change the Church’s message by forcing it to act in a manner inconsistent with its teachings. The idea that, out of concern for equality and fairness as defined by the government, churches aren’t allowed to act the way they act, preach what they preach, or bear witness to their beliefs is outrageous and inconsistent with the First Amendment.

The 2010 Citizens United decision has been good for religious liberty because it recognizes that corporations and other associations are groups of people who have banded together to achieve a common purpose. When people set up a corporation, they exercise their right to associate for a legal purpose.  To argue that we give up our First Amendment rights when we organize and operate a group in public is to say that only individuals have a right to freedom of expression and religion. If that were the rule, newspapers and magazines, which operate in the public square as for-profit corporations, would also have no First Amendment rights. The ability to form a for-profit corporation, a church or a political party for expressive purposes is part of our First Amendment right to peacefully assemble.

My greatest concern today is that the Establishment Clause has become a vehicle through which the courts are establishing and enforcing a “politically correct” way of thinking, talking and acting about the religions of other people. In Idaho, the state Board of Education has held that the public schools may not include readings from any religious books in their curricula.  Students may not read the Bible, the Qur’an, the Book of Mormon, the Mishna or the Bhagavad Gita. In this view, the First Amendment demands ignorance. Our federal government, by contrast, pays for translations of the Qur’an from Arabic into Pashto and Dari so that children in Pakistani madrassas can learn what it really says.  Why must American children be protected by the state from exposure to other religions’ holy books? What are we trying to protect our children from—the fact that Jews and Christians look at important things differently? Understanding and respecting those differences is the foundation of religious liberty: You are my neighbor.  You need to respect me in exactly the same way as I respect you. But if one of us can go to court and say that what you do, or what you believe, offends me and must therefore be banished from the public square or the public school curriculum, then religious freedom is thrown out the window.  Free speech will not be far behind.

Robert Destro is professor of law and director and founder of the Interdisciplinary Program in Law and Religion at Catholic University.

Jeffrey Toobin

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I don’t think religious freedom is in any jeopardy. The hot controversies are about whether government is helping religion too much, lowering the barriers between church and state, rather than hurting religion. This is usually at the request of religion. Right now there are a whole set of issues surrounding parochial schools and how much states can subsidize those schools with taxpayer money. There are always issues about public displays of religious symbols on government-owned land, whether it’s the Ten Commandments or crosses—those issues never really go away. But I don’t think these issues are in particular crisis. With more Republican appointees to the Supreme Court, the barriers between church and state will go down, and with more Democratic appointees, they’ll stay higher. The current Supreme Court is divided on these issues, but not passionately so—there’s a lot of consensus. The arguments are at the margins, so it’s not a bitter controversy.

Jeffrey Toobin is a lawyer and a staff writer for The New Yorker. His most recent book is The Oath.

Marc Stern

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Dickens said it well: “It’s the best of times and the worst of times.” There is much to be confident about the state of religious liberty, but (fortunately for Jews who are compulsive worriers), there is much to worry about—from both the right and the left.

There’s no question that certain forms of religious liberty are beyond question for the foreseeable future. There isn’t a favored government religion, almost everyone accepts the idea that all faiths are entitled to equal official treatment, public schools don’t inculcate (Protestant) religious ideas, people are free to worship as they please, and it’s generally accepted that it is not the government’s business to tell a church, synagogue or mosque who its leader can be. All of those ideas, which couldn’t be taken for granted 60 or 70 years ago, are today universally accepted.

The most important threat to religious liberty today is the dispute about the role of religion in public places. The most obvious example is the fight over the contraceptive mandate in the health care reform legislation and the scope of religious exemptions to people who object to same-sex marriage. The issue is whether there is a space in which people have to put aside their religion and operate under generally accepted secular criteria, or whether they have some right to implement their religious beliefs in the marketplace and public sphere. Judged in this way, I’m not sure that religious liberty is secure. Paradoxically, the federal courts are ever more tolerant of religious displays, going so far as to fail to detect a distinctly sectarian message in the displays of crosses. Elements in the evangelical community support this rollback, but so far these efforts have not changed the overall picture.

There are substantial numbers of influential people who believe that a person ought not to be able to take religion very far into the public. This increasingly vocal secular cohort is no longer comfortable with accommodating religious practice in any way. Some atheist groups are even challenging Sabbath observer accommodation, objections which we haven’t heard for a long time. Their view is that religion should be an entirely private affair, and that the government should take no notice of it. In part, these changes reflect a general secularizing trend in Western society. Religion is no longer taken for granted as valuable, and unfamiliar religious practices (e.g., circumcision) are no longer assumed to be benign. This means both long overdue fairer treatment for non-believers, and constricting the liberty of believers to a right to equal treatment with non-believers, not an affirmative right to practice one’s faith.

Beyond the diminishment of the social status of religion, in those cases in which religious liberty conflicts with the idea that everyone is equal, equality has tended to prevail. Same-sex marriage fits into this paradigm, as does the rejection of objections to contraceptive coverage, since it interferes with the equality of women. In these areas, it’s uncertain how things will play out, but I am pessimistic that conservative religious groups will enjoy protection for their religious practices. Regrettably, several groups in the Jewish community, and groups otherwise dedicated to religious liberty, are insensitive to that liberty’s value in cases where they disagree with the religious practice at issue—and attempt to deny that these cases even involve a plausible religious liberty claim. On the other hand, too many religious leaders are oblivious both to the decline in the status of religion and the importance of equality and personal autonomy in our society.

While basic religious tolerance is at an all-time high, conservative churches, synagogues and mosques are going to have a rough ride on issues such as sexuality or employment discrimination. Some of these claims should fail, but not easily or quickly. The question is whether religious liberty generally or just specific claims are under attack. On that, the jury is still out.

Marc Stern is associate general counsel for the American Jewish Committee.