Flag waving in front of old church on summer afternoon.

Is Religious Liberty Truly In Peril? A Warning.

R. Albert Mohler, Jr.
August 7, 2019

Is religious liberty truly in peril?

That question was debated recently in dueling articles published in the Wall Street Journal. David French, senior writer for National Review magazine argued that religious liberty is indeed endangered in America. Marci Hamilton, a former clerk for retired Supreme Court Justice Sandra Day O’Conner, who now serves as a professor at the University of Pennsylvania, makes the counter argument. It was a genuine exchange of ideas, viewpoints, and divergent worldviews—the arguments are very revealing.

David French made his case by tracing back to April 28, 2015, which marked the oral arguments before the Supreme Court regarding Obergefell v. Hodges. The Court’s decision in Obergefell would legalize same-sex marriage across the country. The most ominous and telling moment in those oral arguments came during an exchange between Solicitor General Donald Verrilli, Jr. and Justice Samuel Alito.

French wrote, “Justice Samuel Alito asked President Barack Obama’s Solicitor General Donald Verrilli, Jr. whether constitutional recognition for same-sex marriage would lead to stripping federal tax exemptions from religious colleges that oppose gay marriage, in the same way that federal law strips tax exemptions from colleges that oppose interracial marriage or interracial dating. Rather than immediately answering, “no,” the Solicitor General of the United States responded, ‘It’s certainly going to be an issue.’”

Indeed, it will be and has proven to be an issue, and not just for tax exemptions. It will be an issue when it comes to any form of social recognition. The big issue at stake is whether Christian colleges will be able to continue to operate under any semblance of the Christian faith. Moreover, the issues have spread far beyond the college campus—including ministries, adoption and foster care agencies, religious organizations and even hospitals that are now confronted with the realities of diminishing respect for religious liberty.

In reflecting on the oral arguments, French eloquently states: “And just like that, millions of American Christians could easily and quickly imagine a future where the law held their traditional, orthodox religious beliefs—the beliefs of the Catholic Church and every significant evangelical denomination in America—in the same regard as it held the views of vile racists. But Christians who had been paying attention knew of this risk well before Obergefell. Christians who had been paying attention had seen a trend where legal activists at all levels of government had been aggressively expanding their regulatory and ideological attacks on religious liberty.”

The reality is that religious liberty is in peril in the United States and we have known it for a long time. This is one of the reasons why in the 1990s, Congress passed the Religious Freedom Restoration Act with overwhelming support from both parties and in both houses of Congress. The bill’s vast public support made it noncontroversial. Now, however, one of the most cherished liberties in American history is threatened by increasing secularization and the sexual revolution.

French highlights the chief threat against religious liberty, namely, the administrative state. The vast bureaucracy of government can effectively channel a political agenda set out to malign and reduce religious liberty without any legislative or congressional deliberation. Consider the infamous Obama contraception mandate. The administration forced its moral agenda through the bureaucratic powers of the Department of Health and Human Services. With one executive mandate, the federal government demanded that religious employers violate conscience, demanding that they provide contraceptive health coverage (including some forms which may be abortifacients) in direct violation of their own consciences. This encroachment led a group of nuns known as the Little Sisters of the Poor to file suit in federal court, precisely because of the violation of Christian conscience.

That episode marked a calculated and deliberate attempt by the administrative state to dismantle the liberties and rights secured through religious freedom. President Obama could have accomplished the same policy measure without violating the consciences of Christian ministries or companies managed from Christian principles. The threat of the administrative state, furthermore, extends beyond health-coverage mandate. The same kind of policies have come from the Department of Justice or the Department of Education. Just about every dimension of the vast administrative state presents such dangers.

French argues, “The list could go on, but more disturbing than the individual cases is the deep inversion of America’s constitutional principles that has empowered this legal assault. If governments ultimately prevail in these efforts, the resulting precedents would upend the constitutional order, rendering religious Americans even more vulnerable to future legal attacks, like the threatened loss of tax exemptions for Christian educational institutions.”

French then turns to the Bill of Rights, which enshrines religious liberty as a core American liberty. He rightly argues that U.S. constitutional provision in the Bill of Rights does not merely limit the federal government from establishing a religion, but also guarantees the free exercise of religion.

He then writes, “Every other American law—whether a federal statute, state constitutional provision, state law or university regulation—is subordinate to and subject to review under this Bill of Rights.” That argument has enjoyed a nearly unquestionable status of American constitutional order ever since the Constitution was ratified. This is an important argument to maintain because, as French points out, many opponents to religious liberty dismiss its importance by arguing that religious freedom is merely a pretext for bigotry.

The format of these dueling articles in the Wall Street Journal provides space at the end of each author’s argument for the opposing writer to respond. After French makes his case that religious liberty is besieged, Marci Hamilton responded, stating, “David French says that our constitutional tradition does not give religious believers absolute rights—even as he argues that they should be free, in most instances, from laws that they consider incompatible with their beliefs. But there is only one absolute right in the Constitution, and that is the First Amendment’s guarantee of the right to believe anything you want. The government may never prescribe beliefs.”

This is the most revealing paragraph in the entire exchange. Note carefully what Marci Hamilton is doing. She has reduced the constitutional right of religious liberty to a right merely “to believe anything you want.” This is a radically reductionist argument, which undermines the broad and crucial protections guaranteed and respected by the First Amendment. The First Amendment secures more than a mere right to believe, in private, anything you want.

Hamilton’s definition of religious liberty is now divorced from any public action or significance. In her view, the First Amendment only protects your individual, private thoughts. That protection ceases once those thoughts enter the public square.

During the Obama Administration we began to hear references to religious liberty reframed as “freedom of worship.” The freedom to worship is indeed included within the free exercise of religion, but to deliberately use this language is to imply that worship is where the liberty ends. That is not true.

But now, in Marci Hamilton’s argument, we see religious liberty reduced even further. It is as if this new version of religious liberty is restricted to a citizen’s cranium – merely a right to believe.

In Hamilton’s own article, she refers to the Religious Freedom Restoration Act of 1993 negatively, stating that “it didn’t ‘restore’ First Amendment law; it created a new version of extreme religious liberty on demand.” This is astounding. Hamilton construes the Religious Freedom Restoration Act [RFRA] as legislating an “extreme” new understanding of religious freedom. It did no such thing. Interestingly, the President who quite publicly signed the law was Bill Clinton, a Democrat. Moreover, many of the most liberal members of the Democratic Party not only voted for the bill but were co-sponsors of this supposedly “extreme” bill for religious freedom.

What changed in the last 25 years? The culture changed. The culture that once honored religious liberty and respected it as a bedrock freedom for civil society—that culture is no more. Religious liberty now attracts the glare of the cultural left who see religious liberty as an obstacle in the path of their social transformation. They view this freedom as a socially-constructed institution of bigotry from which we must liberate ourselves. Moreover, the rise of the LGBTQ movement now pits religious liberty against the newly constructed sexual liberty—these are two, incompatible freedoms that necessarily collide. The sexual revolution believes it’s time for religious freedom to give way to its higher, newer, morally coercive “rights.”

Hamilton, after lamenting the present state of religious liberty proponents, states, “The good news is that the next generation rejects this extreme idea of religious liberty. Younger Americans are not so sanguine about organized religion. According to the Pew Research Center, the fastest-growing religious cohort among Americans is the “nones,” who either don’t believe at all or believe in God but reject organized religion.” Hamilton openly celebrates the decline of religion, not just religious liberty. This development is apparently, “good news.”

Note carefully that Hamilton presents the decline of religious faith as “good news.”

This project in the Wall Street Journal was a genuine exchange of ideas. It featured two major essays presenting two contrary arguments, and those who made the arguments had the opportunity to respond to one another. It was calm, it was respectful, it was substantial. substantial. It’s a tribute to the Wall Street Journal that it actually published this exchange.

Nevertheless, the debate comes as an ominous warning. Just consider Marci Hamilton’s arguments, especially her assertion that freedom of religion essentially only guarantees the freedom of privately held, privately expressed belief. In this rendering, religion has no respected place in the public square. Your cranium is the only viable real estate for religious expression.

Writing a letter to the Wall Street Journal in response to Marci Hamilton’s article, Don Meindertsma, writing from Annandale, Virginia got it just right when he stated: “Ms. Hamilton opines that the only absolute right guaranteed by the First Amendment is the right to believe anything you want. We hardly need a constitution for that. I can sit in my house and believe whatever I want, whenever I want despite any law (or woke bureaucrat) that instructs otherwise. Rather, the First Amendment’s protection of the exercise of religion is what envelops us when we leave the home to carry out our calling.” He then concluded, “That right might not be absolute, but it is literally the top of the list in the Bill of Rights and should easily trump so-called fundamental rights that the constitution doesn’t even mention.”

This debate carried out on the pages of the Wall Street Journal has massive implications for American public life, especially against the backdrop of the 2020 Presidential Election. Indeed, the Democratic contenders for the nomination need to be confronted with the real questions raised in these dueling articles. The candidates need to be asked if they, as President, would use executive authority through federal departments to force a secular orthodoxy on religious groups, organizations, and businesses. The candidates need to be asked if they will protect the rights of Christian colleges to educate their students and hire their faculty in accordance with the tenets of faith, without being threatened by the state.

I dare someone to ask the Democratic candidates those questions. All the evidence surfacing in this Democratic Primary campaign indicates that none of the major candidates would do anything to upset the new sexual orthodoxy. Furthermore, there is every reason to believe that if one of these candidates were elected, the administrative state would reengage and expand its campaign to dismantle religious liberty, with even greater hostility and ferocity.

One way or another, all the candidates must answer this vital question: will you or will you not uphold the most precious liberty of our national order?

R. Albert Mohler, Jr.

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