Luke Goodrich

Current Religious Freedom Battles and a View to the Future

on March 19, 2020

Luke Goodrich, Vice President and Senior Counsel of the Becket Fund for Religious Liberty, discussed current religious liberty battles, with a view to the future, at the Faith and Law Forum in Washington, D.C., on February 28.

He began by saying that just this year, the “Supreme Court agreed to hear one of the most significant religious freedom cases in many years.” It is Fulton vs. the City of Philadelphia. Philadelphia’s government has endeavored to shut down a religious foster care ministry, Catholic Social Services, that has served the city for over 100 years, because of its beliefs about marriage. Also, the court will hear a case from Montana about government funding for religious schools, another about the freedom of religious schools to choose their own faculty, and a third case concerning the continuing efforts to require the Little Sisters of the Poor to conform to the Obama Administration’s HHS mandate. This is, therefore “a huge time for religious freedom at the U.S. Supreme Court … We are also facing levels of hostility toward religious beliefs and toward religious freedom itself that we haven’t seen in many years.”

Goodrich said that Christians need: 1) an “understanding of where religious freedom comes from, and why it matters,” 2) an understanding of the real threats to religious freedom in the contemporary world (“which are different from the threats of years ago, and the threats in other countries”), and 3) “to be equipped to take prudent and practical action to preserve religious freedom for years to come.”

Different perspectives on religious freedom are voiced by different groups of Christians in responding to the current controversy, he finds. The first group he calls “the Pilgrims.” They consider religious freedom important “for the spread of the gospel,” and they cite America’s Judeo-Christian heritage and the Constitutional guarantee of religious freedom to support their claim to religious freedom. Secondly, “the martyrs,” claim that religious freedom doesn’t matter because “Christianity flourishes under persecution.” But Goodrich said that both groups “view religious freedom mainly as a legal and a political issue,” when in fact “it is a Biblical issue, and a philosophical issue.” As a Biblical issue, it is, “rooted in the nature of God and the nature of man.” While he said that there is no single Bible verse that supports religious freedom, Scripture has numerous stories of “religious freedom conflicts,” and Biblical themes can “undergird” a doctrine of religious freedom.

The first chapter of Genesis declares that man is made in the image of God, giving human beings a capacity to relate to God. Throughout Scripture, “we see that God is pursuing a relationship with humanity.” Nevertheless, the Bible describes how Adam rejected God, and “the people of Israel reject him repeatedly.” But prophets exhorted to repentance, and Christ and his apostles proclaimed salvation. Christianity involves both the divine free offer of the gospel, and the free human response. Therefore, when the government “inserts its power” into religious affairs, “the government is exceeding its God-given realm of authority; in a very real sense it’s elevating itself above God, and committing an injustice.”

This writer would add to Goodrich’s summation of Biblical support for religious freedom the Pauline admonition to act only from faith (Rom. 14:23). This would seem to preclude either participation in a state religion in which one does not believe or action against religious conscience.

Since the Western world is to a great extent secular, it is prudent to advance arguments for religious freedom that do not depend on Scripture. To do this, Goodrich cited “three main arguments.” The first is that “religious freedom benefits society.” This was a common argument of the founding fathers. It was posed in the formula that moral virtue needs religion, and religion needs religious freedom. Much religious charitable work, benefiting society, also results. Secondly, religious freedom “imposes a profound limit” on government. This should be obvious from the very nature of religious belief. Since it addresses ultimate reality, it addresses “something deep within us that the government is not allowed to touch.” By requiring neutrality on religion (which is “outside of government,” really addresses all of life, and “places limits on government”), religious freedom really grounds other rights. Thirdly, religious freedom is a good in itself, because it is a fundamental human right, rooted in our desire for truth, goodness and beauty. People find religious faith both from reason and an “inner voice” urging us to choose the good and reject evil, which is our conscience. Beyond that, we desire transcendent truth, which by its nature cannot be coerced, but only can be embraced freely. “When the government coerces human beings in matters of conscience, it’s violating who we are as human beings …. That’s the sense in which religious freedom is a basic human right.”

Goodrich said that the first area in which religious freedom is challenged is in the campaign for homosexual liberation. This was seen in the in the Masterpiece Cakeshop decision, but now in Fulton vs. the City of Philadelphia, in which Philadelphia is trying to shut down a religious foster care agency that provides children only to married couples of one man and one woman, in line with its religious beliefs.

A second area is in the legal requirement to facilitate abortion in the provision of goods and services. The Little Sisters of the Poor are back in court, and their case will be heard by the Supreme Court, to determine if the Little Sisters must be required to use their insurance plans to cover abortions of their own employees, who would be violating the Little Sisters’ religious commitment even to use the benefit.

A third area of conflict is “religious autonomy.” This is the freedom of religious groups to choose their own members and leaders according to religious doctrine. He referred to two Catholic schools in California that his law firm, the Becket Fund for Religious Liberty, is representing against the state’s attempt to interfere in the choice of religious teachers.

A fourth area of conflict concerns “non-Christian religious minorities.” Here the issue is whether or not these groups have the same religious freedom “as everyone else, and will Christians stand up for their religious freedom.”

The fifth area of conflict is the question of faith in the public square. At issue is one of a number of Blaine amendments, in this case a Montana law prohibiting state funding for religious schools, and whether or not this law is constitutional.

Goodrich focused particularly on the question of LGBT liberation versus religious freedom. He said that in the Philadelphia foster care agency case, “the issue is not whether same-sex couples will be able to provide foster care for children.” He observed that 29 private foster care agencies in the Philadelphia area provide children to same-sex couples. Catholic Social Services, while providing children only to married opposite sex couples, has never, in fact, been asked to provide children to same-sex couples. He said that the question in cases such as this is whether the government is going to “take sides” in the debate over homosexuality, or whether “the government is going to respect the dignity of both sides.”

Goodrich said that the main objection to a “win-win solution” is the claim that religious sexual morality is analogous to racial discrimination. He said that there are “multiple reasons why the analogy to race discrimination fails.” First, “race is different as a historical matter.” Three hundred years of slavery, civil war, and segregation resulted in “systematic barriers to full participation” in America by black citizens. No other group has faced these barriers, he said. The government has been given “uniquely powerful tools” to fight racial discrimination, which it has not been given with any other form of discrimination. All 50 states have strict laws against racial discrimination, with no religious exemptions. By contrast 23 states have laws against sexual orientation discrimination, and all these laws have religious exemptions. Similarly, in striking down Virginia’s law against inter-racial marriage in 1967, the Supreme Court condemned the beliefs underlying it, while in mandating same-sex marriage in 2015, the court “went out of its way” to say that the belief in traditional marriage which underlay the laws it invalidated in the same-sex marriage decision was acceptable in our society.

The real issue in this debate is a “debate about what is called ‘dignitary harm.’” This is the claim that the indignity of being told that your behavior is immoral is a legally actionable harm. But Goodrich said the “dignitary harm” argument faces several problems. In the first place, “dignitary harm is almost never viewed as a sufficient basis for restricting First Amendment rights.” It does not restrict free speech, and politely declining to facilitate same-sex behavior is hardly comparable to hate filled speech, which is perfectly legal. Secondly, there are dignitary harms on both sides. Being “branded as a bigot” by the government, and perhaps having one’s business or institution shut down is an even greater dignitary harm than hearing an objection of conscience to one’s own behavior. It is also a financial harm. The “just result” in these debates is for the government to respect the dignity of both sides and not crush everyone who disagrees.

Goodrich said that a “broader case” also should be made for “why religious freedom benefits all of society.” He said that this “is easy to see in a case like Fulton vs. the City of Philadelphia, because Catholic Social Services in this case is one of the best social services out there. They do a great job of recruiting families and supporting them so they can provide a loving home to foster kids.” If religious freedom is violated in such cases as this, there is no benefit to foster care. Foster care will in fact be poorer because of it. Similarly, shutting down the Little Sisters of the Poor because they will not violate their conscience only hurts the elderly poor. Also, ending scholarships to religious colleges only hurts students who would have benefited from the scholarships. Here it might be pointed out that enemies of religious freedom may claim people should change prejudiced views, but that is in fact an attack on religious belief, and thus a demand for unconstitutional restrictions.

Finally, Goodrich considered what people need to do to protect religious freedom “for generations to come.” Here he said Christians are often first preoccupied with winning cases. But “much of Scripture” was addressed to believers “who were losing religious freedom battles, who were persecuted for the faith.” The most basic question, he said, is “what kind of people are we called to be?” First, we are not to “expect protection,” but “expect suffering.” When there is a loss of religious freedom, “we’re not called to lash out in anger,” but “we’re called to rejoice.” We should “continue doing good, even when it’s costly.” Most importantly, we should “not be angry at our enemies, but love our enemies.”

But we also need “to take prudent action that will preserve religious freedom for many years to come.” Here there needs to be attention to “religious freedom conflicts that come from within an organization.” A common conflict may come with employees, because religious social services tend to become progressively more mission oriented and less religious over time. They may not be “clear enough about how they define their religious mission.” Then, perhaps years later, they find themselves in conflict with employees about their requirements of maintaining religious standards of which the employees were not aware, or were not aware were serious commitments. The other area which calls for prudence on the part of religious organizations is the possibility of attacks from outside the organization. Conflict may result from the “lines of business” the organization may be involved in. Also of concern in terms of external threats are the consequences of accepting government money in support of the organization’s mission.

Goodrich said that there needs to be less of “a posture of fear, and more from a posture of hope, and of a confidence in the gospel.” He believes that America has “strong constitutional guarantees of religious freedom” and “a judiciary committed to the rule of law.” He noted the Becket Fund’s “ninety per cent win rate” in its religious freedom cases. He also said that Becket “is undefeated at the Supreme Court.” But beyond this, for Christians, “our hope does not depend on favorable elections or friendly Supreme Court justices.” Rather, “our hope is ultimately rooted in a person, Jesus Christ.” He quoted the John 16:33: “in this world, you will have trouble.” But in the same verse, Christ says “take heart, I have overcome the world.”

  1. Comment by Ted R. Weiland on March 20, 2020 at 4:05 pm

    There’s nothing good about religious freedom in America – that is, unless you’re an advocate for violating the First Commandment.

    If, instead, you’re referring to Christian liberty, that’s a different thing entirely. But there will never true Christian Liberty (which cannot be severed from Christian dominion) until the polytheism-enabling First Amendment is repealed.

    Until then, Christian Liberty will continue to be sacrificed on the alter of Religious Freedom, with just enough scraps thrown to the Christians under their secular masters’ table to keep them happy enough to keep them on their leash.

    For more, see online Chapter 11 “Amendment 1: Government-Sanctioned Polytheism” of “Bible Law vs. the United States Constitution: The Christian Perspective” at http://www.bibleversusconstitution.org/BlvcOnline/biblelaw-constitutionalism-pt11.html

  2. Comment by Mike on March 22, 2020 at 9:52 am

    Would you rather live somewhere like Russia, China or North Korea, and see how much religious liberty they have? Our problem today is not that we allow religious liberty to infidels or false religions; rather, as John Adams put it so succinctly, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” We are no longer that kind of people.

  3. Comment by Ralph Weitz on April 18, 2020 at 9:09 am

    In 1710 my Anabaptist ancestors escaped persecution by the Swiss Calvinists to William Penn’s Holy Experiment to experience religious freedom. The nine generations since that time have celebrated their freedom to worship as they saw God leading, not as the Calvinistic state dictated. Freedom is always a precarious venture but one set before us by Christ. “If you abide in my word, you are truly my disciples, and you will know the truth, and the truth will set you free.”

  4. Comment by George James on March 21, 2020 at 11:14 pm

    >>There’s nothing good about religious freedom in America – <<
    Ted,

    Really?

    I have and will continue to advocate for you right to free speech as well as your right to religious freedom.

    And with those rights you have license to twist them, turn them, and trounce them in any kind of illogical way that you may wish.

    Thank God for our Constitution and the first commandment.

    As for your profundity — I say, meh. But thanks anyway.

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