Religiously Strange Bedfellows: A Review of Religious Liberty in a Polarized Age

First Amendment scholar Thomas C. Berg’s Religious Liberty in a Polarized Age highlights the rising polarization in America and how religious liberty can remedy a rising tide of animosity among opposing camps in American political culture.

Religious liberty, Berg laments, is currently treated as a partisan political weapon. He illustrates this point by highlighting three Supreme Court cases of the 21st century: Trump v. Hawaii, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Obergefell v. Hodges. In the former case, the Court upheld the Trump Administration’s halt on immigration from some Muslim-majority countries, to which some conservative Christians praised the decision and Muslims, along with the political Left, criticized restrictions. In the latter case, the Court allowed Jack Phillips, a Christian baker, to refuse designing a cake for the celebration of a same-sex wedding to which he is morally opposed. Similar to Trump, Christians celebrated the decision and the Left opposed it.

In Obergefell, the Court ruled that same-sex couples have a right to marry. This time, conservative Christians lambasted the ruling, while liberals rejoiced. These cases, Berg argues, show the current status of religious liberty: Americans only value it when it favors their specific religion and worldview and disadvantages the religion they disagree with. Berg concludes that when religious freedom is treated partisanly, it abets the already-rising polarization in the republic.

As such, Berg’s thesis is that Americans must renew their commitment to protecting religious liberty for all in order to address the rising polarization. For such a commitment, Berg argues three things must occur. First, defining religious freedom as “the ability of people and religious communities to live consistently with their deepest, most comprehensive beliefs and identity,” we must strongly value religious freedom when thinking about rights and liberties. Second, we must be willing to extend the blessings of religious freedom equally to all religions. Berg argues that both Muslims and Christians should seek to protect the other’s ability to worship if we are to achieve true religious freedom in America. Third, our commitment to religious freedom must recognize boundaries on religious freedom, lest one religion unfairly encroach on other religions and the broader societal interest.

Berg divides his book into three parts. In part I, he uses two chapters to establish using empirical survey data the degree of political polarization in America, as well as contextualize polarization into the category of religious liberty issues, such as LGBTQ nondiscrimination laws or discrimination against Muslims. In part II, he uses chapters 3, 4, and 5 to establish his arguments for a comprehensive religious freedom. In chapter 3, Berg emphasizes how central one’s religious tenets are to his overall personal identity. To curtail one’s ability to believe his religion and act according to his faith would significantly harm his personal identity. Citing John Garvey, Berg contends that if one violates his religious code of morality, he will face “qualitatively” different consequences than if he violated a secular belief, regardless of how committed he is to both beliefs.

In chapter 4, Berg takes a step back by walking through the history of religious liberty as a formalized concept. He argues that from the inception of American religious liberty, which arose as a response to the conflicts of the Reformation in the early 1500s-late 1600s, religious freedom and civic allegiance were intertwined. He writes, “at its worst, the alienation caused by impositions on religious freedom can significantly weaken the government’s legitimacy or its citizens’ allegiance. Attacking the religious liberty of a group may undercut its members’ loyalty to the state.” Further, he argues that the tradition of religious freedom rests on the foundation that respecting the freedom of all religions is necessary and essential to preserving both civic allegiance and civic peace.

Berg uses chapter 5 to tease out the argument that religious freedom not only produces civic allegiance but also contributes to the common good. The link between religious freedom and the societal common good is that fostering religious freedom allows for religious organizations to optimize their services to their communities. Examples include Catholic foster agencies or faith-based homeless shelters. 

In this chapter, Berg narrows his analysis of religion to mainly Christianity, arguing that a thriving Church and Christian organizations can do much good for society as they provide key services and build social capital in communities. Berg warns conservative Christians, however, that there are two evangelical tendencies which threaten their credibility when claiming exemptions from a law on the basis of religious conviction. First, evangelicals are growing more skeptical of calls for racial justice and equality, which he believes hurts their ability to garner sympathy when it is the evangelicals disadvantaged by the laws. Second, Berg believes that the evangelical embrace of Donald Trump will significantly hinder churches when seeking faith-based exemptions to laws like SOGI (Sexual Orientation and Gender Identity) nondiscrimination laws.

Berg then pivots to Part III of the book, Principles of Religious Freedom, which begins with chapter 6’s elaboration of Free Exercise Clause Principles. He focuses this chapter on the Supreme Court’s 1990 decision in Employment Division v. Smith. Revising the previous judicial standard of strict scrutiny that the government had to meet when justifying laws burdening religious conduct, the Smith court held that laws which are generally applicable and facially neutral in terms of religion are not subject to strict scrutiny review. In holding as such, the Court made it easier for the government to enact laws that look fair on its face, but in substance target religious minority groups and make it harder for adherents of such groups to carry out their religious beliefs. Berg contends that the government must show that their refusal to grant religious exemptions to a law, especially when they have approved secular exemptions to the same law, is necessary to promote the interests it has in enacting the law in the first place. Berg concludes this chapter with a discussion on states enacting Religious Freedom and Restoration Acts (RFRAs) and how such acts can protect religious liberty for all in light of Smith’s regime. 

Chapter 7 is devoted to discussing how to protect minority faiths. Berg argues that Christian conservatives must be accommodating to Muslims and other religious groups lest they find themselves on the other foot when political power switches hands. While not always the case, Berg shows how conservative Christians can find themselves in the minority sometimes, especially in more urban areas where progressives maintain control over policies on sexual ethics. In situations where Christians are in the minority, Berg urges progressives to extend grace and tolerance when Christians seek exemptions from laws that cross their conscience. Throughout his work, Berg repeatedly calls for all citizens to defend religious liberty unconditionally; whether the recipient in question believes in the same worldview or not should not affect our overall endorsement of religious liberty. He ends the chapter by discussing how religious minorities can fend off the three threats to religious liberty: hostile targeting, devaluing and selective protections, and unjustified burdens on religious exercise.

In the penultimate chapter 8, Berg submits that one of the greatest religious liberty disputes in our republic is the clash between conservative Christians and members of the LGBTQ community. LGBTQ individuals, Berg asserts, face opposition in conservative and rural America, while Christians face a rising tide of governmental mandates to give more ground to the sexual revolution than their conscience permits. Berg’s solution is to advocate for LGBTQ nondiscrimination laws, while giving the benefit of the doubt to religious individuals and groups that seek a religious exemption to said laws, like Jack Phillips from the Masterpiece case.

For Berg, the smaller the group of individuals seeking an exemption, the greater the chances of success and scope of their exemption should be. In other words, he believes it should be easier for one religious individual to appeal for a religious exemption than it should be for a national business or company.

Berg touches on the Establishment Clause and governmental religious speech in his final chapter. He discusses recent Supreme Court Cases, like Kennedy v. Bremerton School District and Town of Greece v. Galloway, to show how the Court has been open to the government (or its employees) to engage in religious conduct and speech while in their professional capacities. He disapproves of this trajectory, arguing that to allow the government to engage in subtle religious speech constitutes subtle coercion on outside observers. He urges us to adopt a view of direct proportionality: we should strengthen both free exercise of religion and strengthen limits on governmental religious expression. He states, “[free-exercise proponents] can argue that if nonbelievers’ interests are weighty enough to justify eliminating state religious displays…freedom of religious practice is also weighty enough to justify incurring significant social costs to protect it.” 

In sum, readers of all levels have something to appreciate from Berg’s book. Lay readers will appreciate his down-to-earth vocabulary, while academics and intellectuals will value the depth of research he presents to defend his thesis on the importance of religious liberty. Though he infuses his personal positions occasionally, Berg did a fine job highlighting Christians, Muslims, religious minorities, and LGBTQ individuals in their best light to ultimately drive home the argument that for our republic to heal from its plight of polarization, the path forward is to promote religious liberty for all.