Expert Opinion on the Outlook for American Religious Liberty

on April 15, 2021

The Religious Freedom Institute presented a discussion on the current state and direction of religious liberty in America on April 12. Andrew Graham, Senior Fellow at RFI interviewed the Honorable Matthew J. Kacsmaryck, U.S. District Judge of the Federal District Court of Northern Texas, and James A. Sonne, Professor of Law at Stanford Law School.

Professor Sonne observed the recent comment of U.S. Supreme Court Associate Justice Samuel Alito that “religious liberty is fast becoming a disfavored right.” Sonne pointed out boycotts against states attempting legislative defenses of religious liberty, “harassment of small business owners who refuse to provide abortifacients, even where such goods or services are readily available elsewhere,” and discrimination against houses of worship in applying government restrictions in the coronavirus era.

Among the reasons for the decline in favor toward religious liberty he cited first, the culture wars, in which conviction about the merits of a policy position denies the right “to even hold a contrary opinion … often with the aid of judges who substitute their judgment for [the will of] the people.” He noted that the Little Sisters of the Poor are not attempting to outlaw contraception, but simply want to not be required to provide it.

Secondly, there is the attempt to erase religious presence from the public square, exemplified in the prevailing doctrine of laïcité in France. It takes no account of “the historic and human importance” of not requiring people to violate their consciences “in order to maintain their businesses, ministries, or standing as law abiding citizens.” 

The Stanford law professor noted finally “the “diminished role of religious literacy” in our increasingly secular culture. Sonne believes the answer to this crisis is persuading people that religious liberty is not “a narrow political tool to advance a particular belief on a particular issue,” but is a natural right, including a right to unbelievers in any religion, not to be religious. The “deeply human contexts” of persons holding religious tenets outside of the prevailing ideas in American culture holds persuasive force in grounding religious liberty, Sonne believes.

Judge Kacsmaryck said that the growing secularization of the United States, with less than half the population now having a specific denominational affiliation, only 65 per cent identifying as Christian, and four out of ten Millennials identifying as “nones” is crucial to understanding the crisis of religious liberty. The U.S. district judge noted that the Democratic Party has historically been a party of religious minorities, but now is more a party of secularists. The party went from enthusiastically backing the Religious Freedom Restoration Act in the 1990s to sponsoring legislation that called for its repeal in areas where it would conflict with liberal public policy.

He noted as well the research of Christian Smith and Melinda Lundquist Denton, showing that many self-identified Christians in fact subscribe to “Moralistic Therapeutic Deism,” which has only a tenuous connection to traditional Christianity, and sees mutual self-affirmation as an ultimate good.

Secondly, the sexual revolution has effectively resulted in “the deregulation of sex.” Fornication, adultery, sodomy, contraception, etc. are no longer penalized. He pointed to recent Pew Research Center data which showed increasing support for sexual deregulation even among self-identified Christians, and even in their own personal lives. Only abortion is not part of this developing consensus. It was found to remain controversial among Evangelicals and Catholics. Finally, the therapeutic culture has turned judgments about value from external duty to internal fulfillment. Instead of duty to God and neighbor, focus is on “the politics of power.” Restraints of self-will are seen as oppressive.

Kacsmaryck observed that in the past, American Indians suffered infringements of their religious freedom because their religious beliefs and practices were unfamiliar “to the court and to the culture.” The same situation is increasingly true today for orthodox adherents of the Abrahamic religions (Judaism, Christianity, and Islam), where religious commitment is in conflict with the commitment of Moralistic Therapeutic Deism to personal fulfillment and the duty to be nice.

In reviewing the religious freedom consequences of the recent Bostock decision, which said that sexual orientation and gender identity are included in federal employment discrimination law, Kacsmaryck said that Justice Alito’s dissent from the decision was “prescient.” The Biden Administration, immediately on assuming office, extended SOGI antidiscrimination provisions to include Title IX (Education Amendments), the Fair Housing Act, the Immigration and Nationality Act, and federal agency heads in the administration of law that falls within their agencies. Kacsmaryck said that wherever “sex” appears as an antidiscrimination category, SOGI categories will be applied. It should be added to his specific comments that since transgenderism makes sex arbitrary (self-defined), wherever “sex” appears as an antidiscrimination category, sex must be ignored (just as race must be ignored where race appears as an antidiscrimination category). But this is a problem, since races may be practically treated as equal, whereas sex cannot be treated as equal without problems immediately arising (due to different physical capacity, the need for private spaces, etc.). The attempt to protect sex has effectively abolished sex.

Sonne again emphasized the “human dimension” of religious liberty cases. He said the Supreme Court seemed to be acknowledging this human dimension in protecting the Little Sisters of the Poor by using an administrative provision in the law, Associate Justice Sonia Sotomayor’s stay of the imposition of fines against the Little Sisters, and Justice Alito’s praise of their work, including testimonials on their behalf.

Another important religious liberty case in the last year was the Espinoza vs. Montana decision (2020), regarding public funding for religious institutions. Here the court overturned a “Blaine amendment” provision in Montana’s constitution prohibiting public funding for religious institutions. The court said that a private religious school cannot be denied public funding if private secular schools receive public funding. Although free exercise was cited in the decision, the operative principle appears to be less religious liberty and more the “fairness” prescribed in the new civil religion of Moralistic Therapeutic Deism. Kacsmaryck said that Chief Justice John Roberts, who wrote the decision, dismissed arguments in favor of discriminating against religious schools that would have prevailed fifty years ago.  There is a shift in the decision from using the First Amendment’s establishment clause as a “sword” against religious institutions to using it as a “shield” to protect religious institutions.  Earlier, in the late nineteenth and the twentieth centuries, the establishment clause and Blaine amendments (in addition to their anti-Catholic hostility) were used “to drive religion to the margins of society as a form of scientific progress.” But today, what is called “strict separation of church and state” is, Kacsmaryck believes, “less and less persuasive to this court.”

Sonne asked whether or not the Fulton vs. the City of Philadelphia case, now pending in the Supreme Court, would result in overturning the Employment Division vs. Smith decision (1990), which said that religious freedom is no defense against “neutral, generally applicable law.” The Fulton case involves the right of a Catholic adoption and foster care agency to place children only with married opposite sex couples in accordance with Catholic teaching, which Philadelphia’s municipal government denies. Sonne said that legal observers are predicting that the court will focus on the targeting of a religious social service, rather than issuing a blanket reversal of the Smith decision. Alternatively, the court could focus on the right of the City of Philadelphia to contract services at its discretion.

Finally, Sonne asked about another pending case, the Thomas More Law Center vs. Becerra, which concerns the right of a nonprofit organization to keep its list of donors confidential. Kacsmaryck said that donor anonymity is a great concern to faith based organizations. It is quite important to maintain donor anonymity in the era of cancel culture and boycotting, and donor anonymity has prevailed legally since the NAACP vs. Alabama decision (1958) during the civil rights era.

Graham asked if the ideal of equality is replacing the ideal of liberty as the most important value in the American legal constellation. Sonne expressed the hope that both ideals could be retained as effective legal principles. He again emphasized the importance of showcasing the human element in religious liberty cases. He cited a recent Supreme Court decision in favor of a Muslim death row inmate in Alabama denied a Muslim chaplain. Here equality worked in favor of religious freedom. Alabama’s subsequent effort to deny chaplaincy service to death row inmates meets the equality requirement, but shows the need for liberty (the right to have a clergyman of one’s own confession in one’s final hours).

Sonne said we must always remember the human aspect of religious freedom, of people trying to live according to their faith without violating legal requirements. The passion of current social conflict should not overwhelm this, he said. Kacsmaryck said that key to understanding future development in religious freedom will be what the “fourth branch” of government (the administrative state) promulgates (DOJ memoranda, “dear colleague” letters, etc.). This will greatly affect what cases “percolate up” the court system. A change in administration results in a change of the policies and priorities of the administrative state. Although Kacsmaryck did not explicitly say so, the recent change from the Trump to Biden administrations does not bode well at all for religious liberty. There will, presumably, be many important religious liberty cases to be vigorously fought.

Christians should remember, however, that violating Biblical precepts is not an option when confronted with hostile state requirements. Personal, business, professional, or other sacrifices may be substantial, and legal arguments difficult, but whatever the consequences, our absolute duty is always to obey God rather than men.

  1. Comment by Pirate Preacher on April 15, 2021 at 9:40 am

    This be a right fine treatise, though some words and phrasing be hard ter decipher.

    Leaves me ter wondering if all this talk of splitting from tha Methodist armada and sailing off on a new heading might come ter naught. Two years be an infernal long time fer certain crew ter be held in the hold of vessels and not allowed ter come on deck and worship under tha Sun.

    It may very well be that by tha time tha Methodist armada doth split in ter two, three, or five fleets, tha Colonies authorities ‘ill be roaming tha high seas looking fer any that doth not sail under tha black flag of reprobates.

    Seems ter me it be in tha best interest of all who abide by Skipper’s Code of Conduct and seek ter live by tha words of the Sun, ter jump ship now and make do with whatever craft kin be fashioned.

  2. Comment by Robin Smith on April 15, 2021 at 1:13 pm

    Wait until all religious houses have to pay some $90 Billion a year in taxes. No more “I’m a religious person!” Pay your taxes!

  3. Comment by David on April 20, 2021 at 2:09 pm

    Render unto Caesar.

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