Thinking In Public

February 10, 2020

Religious Liberty in a Secular Age: A Conversation with Attorney Luke Goodrich

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Albert Mohler:          This is Thinking in Public, a program dedicated to intelligent conversation about frontline theological and cultural issues with the people who are shaping them. I'm Albert Mohler, your host and president of the Southern Baptist Theological Seminary in Louisville, Kentucky. Religious freedom is a frontline issue and often a headline issue these days and one of its most ardent defenders is Luke Goodrich who serves as vice president and senior counsel at the Becket Fund for Religious Liberty. Mr. Goodrich earned his baccalaureate from Wheaton College and his law degree from the University of Chicago. During his time at Becket, Mr. Goodrich and his team have won major victories before the United States Supreme Court, including the cases known as Little Sisters of the Poor versus Burwell and Burwell versus Hobby Lobby. He's known for his numerous media appearances. Just this year, he authored the book, Free to Believe: The Battle over Religious Liberty in America, which was awarded book of the year by the gospel coalition and world magazine. Mr. Goodrich, welcome to Thinking in Public and you have experienced not only of course as an author and scholar dealing with these issues, but also as a litigant, as a lawyer, deeply involved in these issues and many of the crucial cases of recent years. Your book  entitled, Free to Believe: The Battle over Religious Liberty in America is one of those titles that isn't particularly dated. I think you could possibly have published a book with that title in 1789 but there is a particular urgency to it in 2019, 2020. Why this book right now? Why that title?

Luke Goodrich:         Well, as you mentioned, I've had the privilege of litigating religious freedom cases on the front lines for over a decade and in the course of my work. I've had a chance to speak with a lot of Christians, a lot of Americans who are very concerned about religious freedom and there are really two events that prompted me to write this book. One was about a decade ago; my church in Washington DC asked me to preach a sermon about religious freedom because we were doing a summer series on Christ and culture. That really forced me as a religious liberty litigator on the front lines to think about this issue more biblically and theologically and ask what does scripture have to say about this and the sermon was very helpful to our church community and I just dwelt on that for a while. And then a few years later, I was at a gathering of Christian leaders on the eve of the Supreme Court's decision in Obergefell, the same sex marriage case. And these are leaders of denominations, of religious colleges and universities and major social service organizations. In that room, the fear around religious freedom was palpable. There was so much fear about what was coming down the line and not a lot of practical knowledge. And so I realized at that point having spent a decade litigating these cases; maybe I would have something to add to the conversation. That's why I wrote, Free to Believe. Just wanted to take my frontline's experience litigating religious freedom cases and help ordinary Americans, especially Christians understand why does religious freedom matter? How has it threatened in our culture uniquely today, and what can we do about it?

Albert Mohler:          In a bit, we'll talk about the new development here; the most urgent which is that inevitable collision between the newly defined sexual liberties and religious Liberty, something which by the way, the LGBTQ activists saw before. I think a lot of Christians did. They understood the consequences of what they were demanding and what they've now largely accomplished. But going backwards in time, let's just look at the biggest picture across the tapestry of American history. If you were to write about Supreme Court religious liberty litigation, my theory is that if you were to even say that was your business or your expertise; say 100 years ago, people would have a hard time defining exactly what that would mean. I mean the religious liberty cases that have come before the Supreme Court or that came in the first century of the American experience, they were largely unpredictable. They didn't follow a particular pattern and of course my argument is they basically do follow a pattern now. But what changed and when?That's a huge historical question. What changed and when?

Luke Goodrich:         Yeah. There are a number of major historical changes but I would say one of the biggest ones was the Supreme Court's decision in a case called Everson in the 1940s and that was when the Supreme court decided that the establishment clause of the first amendment, the part that says, "Congress shall make no law respecting an establishment of religion” but that could be enforced against the States. That really kicked off a decade's long wrestling by the Supreme Court with the meaning of the first amendment. It really made the Supreme Court one of the major battlegrounds of religious freedom issues where before these were handled mostly by legislatures and by state courts. That was a huge change in our jurisprudence. I know there have been a number of significant changes since then and I'd also be happy to go into.

Albert Mohler:          Sure. No. I think you're exactly right to point to Everson but I want to put that in the larger context. In the larger context, that particular religious liberty precedent basically fell in line. Perhaps inevitably fell in line with the greater compromise as a federalism that had taken place with a more progressive as direction of the Supreme Court and the federal judiciary and frankly, the ambition to expand the powers of the federal government. It wasn't as if that came out of a vacuum. It really was the next step or the next shoe to fall, so to speak; in the Supreme Court and the federal government basically taking on arrogating to itself an entire new area of responsibility.

Luke Goodrich:         That's absolutely right. We've seen a trend over our history toward more and more centralization of power, more and more power at the federal level. And now today we're seeing that play out in the field of religious freedom. I mean, obviously one of the hugest religious freedom conflicts in recent years was over the contraception mandate. My firm had the privilege of handling the Hobby Lobby and Little Sisters of the Poor cases in the US Supreme Court. That was an instance where the federal government under the Obama administration issued really in an unprecedented regulation forcing religious organizations across the country to use their own health insurance plans to fund abortion inducing drugs. We'd never really seen at that wide of a scale and at that federal level, that assault on traditional Christian beliefs and that's a major religious freedom issue today.

Albert Mohler:          Yeah. You used one word there that triggers another major consideration and background. You use the word regulation and indeed the Obama contraception mandate was not an act of Congress signed into law by the president. But rather on the authority of the affordable care act, that responsibility was delegated to the department of health and human services and it was through the regulatory process. We also have the background development of the administrative state. We're actually dealing in many ways as you were in those two cases with a regulation that had the force of law but had not actually been a matter of legislation.

Luke Goodrich:         That's absolutely right. It's not just the contraception mandate where federal regulations are creating religious freedom conflicts. I'm still litigating a case today based on a regulation that came out at the end of the Obama administration where HHS decided that all doctors and hospitals across the country would be required to participate in and perform a gender transition procedures even when it violates their religious beliefs and their medical judgment or else they would be deemed to be discriminating based on gender identity. That was a massive overreach by the Obama administration. We fortunately got a federal court to put that regulation on hold and the Trump administration is currently reconsidering it but that's just one more illustration of your point that federal agencies nowadays play a critical role when it comes to religious freedom.

Albert Mohler:          Now, I think you and I would be an absolute agreement that a state established church of any form is a bad idea and you make that clear in your book. I appreciate that. I am in wholehearted agreement but to say that something is a bad idea is not to say it is per se, state by state, unconstitutional. It reminds me of the story about Justice Antonin Scalia, the late Justice said that he wanted to rubber stamp that could simply declare stupid but not unconstitutional. Actually, when I cited this so often; someone actually made one of those for me. I have no opportunity to act judicially using that stamp, but boy do I think of it logically many times. When you think about this, the United States constitution and you detail this in your book makes very clear in the establishment clause that Congress may make no law concerning an establishment of religion. As you point out in the debate over the constitution itself, Congress was not an accidental word.

Luke Goodrich:         That's exactly right. At the time of the founding. At the time of the drafting and ratification of the first amendment, there was a vigorous debate in the colonies about an establishment of religion. Nine of the thirteen colonies had established churches. Some thought it was a good thing; some thought it was a bad thing. And ultimately what the convention decided was a federalism solution that Congress would be limited when it came to legislating on a question of religion; Congress couldn't set up a national established church and Congress also couldn't interfere with state established churches. And that was how it was originally understood in the 1780s, 1790s and then over time. All of the States eventually, voluntarily disestablished their churches. Nowadays, one of the big problems is that most of us; it's been so long since we've dealt with an established church, we don't actually know or remember what an establishment of religion is. Yet, that had a definite well-defined meaning at the time of the founding where the government was controlling the doctrine and personnel of the church. It was mandating attendance in the established church. It was giving exclusive financial support to the established church. And it was limiting worship and political participation by those who were members of dissenting churches. That's what an establishment was at the time of the founding. Unfortunately; over time, the Supreme Court has migrated its interpretation of the establishment clause to even stamp out innocuous government recognition of how religion is an important aspect of our history and culture.

Albert Mohler:          Right. A more substantive, a redefinition of establishment rather than concrete. As we're thinking about these issues, keeping our narrative straight, we've gone from the constitution and the definition especially of the establishment clause and we've tracked through a considerable territory of American history to the beginning of the progressive of this era with the federal government taking on all kinds of responsibilities, reversing the logic of federalism, and of course a jumping out of the constitutional limitation on the federal government of enumerated powers. I asked you where the turning point was and you pointed to Everson. We're looking after the Second World War at the fact that there is another historically in the 20th century a second great expansion of government power and of the logic of the federal authority. Everson fits within that, doesn't it?

Luke Goodrich:         Yes, absolutely.

Albert Mohler:          It does so by basically deciding that no state can allow school prayer and the reading of scripture. By the time you put the cases together throughout the 1950s and 1960s not even a moment of silence, by the time these cases basically come to a conclusion that such an act even student initiated would be a violation of the constitution.

Luke Goodrich:         That's right. 60s, 70s, 80s, the Supreme Court aggressively pursued a separationist interpretation of the establishment clause and has no real relation to the original meaning of the establishment clause, struck down a number of very innocuous practices, just recognizing religion as a natural part of human culture and really made the First Amendment into something that was hostile to public expression of religion in a way the founders never intended. I'd say the good news is the Supreme Court is trending back the other direction, trending back toward a more historic understanding of the establishment clause and even trending back towards more robust protection of free exercise of religion. My friend Becket in the last quarter century; we have a 90% win rate across all of our cases and undefeated at the Supreme Court and seeing a number of really great decisions from the Supreme Court in recent years. Those are some of the positive trends we're seeing nowadays.

Albert Mohler:          Yeah, absolutely. You're not writing without hope but you are writing with a sense of urgency and frankly a rather sober-minded assessment of where we stand and where we could stand should things go otherwise. I want to use two other decisions in order to set the stage for getting us to the most urgent part of the crisis. Those are the Lemon Decision and the Smith Decision. Let's go to Lemon first because it produced the now infamous Lemon test. I think we need to talk about that in order to go further.

Luke Goodrich:         Yeah. Lemon versus Kurtzman in the early 1970s was a case involving aid, government aid, financial aid to religious schools and the Supreme Court cobbled together what it called a three part test for looking for violations of the establishment clause. Basically looking at what's the purpose of the government action, what is the effect of the government action, does it advance or endorse religion, and then third, does the government action unduly entangle the government in religion? You say those three parts none of them sounds like a horrible idea but the problem is that test is extremely subjective and it really gave the court, the Supreme Court and lower courts licensed to reach almost any result they pleased in establishment clause cases and often took on a very anti-religion cast. That's what produced through the 70s and 80s and end of the 90s, some of the very religion hostile decisions from the Supreme Court.

Albert Mohler:          Well, you mentioned the word subjective, and that's probably the best word for it. But the other word is a psychoanalytic; I mean with in that first part of the Lemon test about a secular purpose, it's amazing how much has been dragged into the federal courts trying to show some hidden agenda. You're even trying to more or less read the minds of those who at the local level or the state level or a county, or a branch of the government. It's not subjective just in terms of the judge or justices, it becomes a matter of trying to read the subjective state of mind of individual legislators.

Luke Goodrich:         That's right. The famous quote was this test asks for quote, "judicial cycle analysis of a drafter's heart of hearts" unquote. We have to figure out what was in the heart of hearts of the multi-member legislature when they were enacting a law. Then another layer of subjectivity comes with the second part of the Lemon test where the court looks at what was the effect of the law and the court says has deposit this, what it calls a reasonable observer. It has to imagine what a reasonable person would think when they see this religious symbol or hear about this funding for a religious group and lo and behold, the reasonable observer always ends up looking like the judge or justice who holds the deciding vote. These cases are basically decided not based on the written text of the constitution but on the predilections of the judges who are deciding it.

Albert Mohler:          Absolutely. I believe the justice of the Supreme Court who coined that phrase most memorably was Oliver Wendell Holmes. And even when it was colleagues at the time said that evidently, Justice Holmes understanding of a reasonable man is by no coincidence; Oliver Wendell Holmes. That's the way it works. Well, the Smith Decision is the other one because the Lemon Decision there in the 70s, it's set up a basic hostility on the part of the court because that test is, and you say that three parts test about purpose and effect and entanglement. It appears innocuous but it's actually stacking the deck because it's almost impossible, especially on effect. This is an issue that I've tracked in these cases for so long. Let's say that an unintended or ancillary effect of a law just might be arguably that some religious ministry received some benefit, that's an almost impossible. I mean just even if it makes the economy better, it's almost impossible for a law to have a purely secular effect.

Luke Goodrich:         That's right. I have the chance to litigate this just recently on an issue that probably affects you personally and many of your listeners and that's housing allowances for ministers of the gospel. Pastors all across the country can take an exclusion of their income when the church pays them a housing allowance to obtain housing. An atheist group challenged this provision of the tax code, which has been around for over half a century as a violation of the separation of church and state. They said, "Hey, this is benefiting churches and ministers." A federal judge struck that down as unconstitutional and that would've had a multibillion dollar effect on churches and ministers across the country. I had the privilege of appealing that ruling and arguing it in the seventh circuit and basically telling the court like, "look, when you assess whether a law or regulation is benefiting religion, you have to figure out what your baseline is. Yes, of course ministers benefit when they receive this tax exempt housing allowance but there are all kinds of secular workers who can also receive tax free housing allowances as well.” There's a baseline problem that you have to address first. There’s also just the concern about a legitimate concern about separation of church and state. Do we really want the IRS looking at how ministers use their homes and in deciding whether that's really necessary for the mission of the church. Fortunately the court ultimately agreed with us and upheld that longstanding tax exemption for ministers and said, "Hey, this really is neutral." It didn't rely just on the Lemon test. It relied importantly as we urged it on history and the historical meaning and historical practices under the establishment clause, and that gives a more objective basis for deciding these kinds of cases.

Albert Mohler:          Luke Goodrich has said that he has written this book in order to help ordinary Christians to think through these issues and to be aware of the challenges we face but he's also writing in order to define terms and of course he's making many arguments along the way. That's what makes this a very interesting conversation. Okay. Continuing in the line of our narrative here, we've got to talk about the Smith Decision. You do so in your book; because my argument is that this really becomes the hinge with what follows as a congressional response but we'll get to that in a moment. First of all, the Smith Decision, what was it and why does it matter so much to this discussion?

Luke Goodrich:         Yeah. The Smith Decision is crucial. As we shift from our discussion about the establishment clause. Smith is about the free exercise clause says Congress shall make no law prohibiting the free exercise of religion. This is a Supreme Court decision in 1990 involving Native Americans and in Oregon had a criminal law that made it illegal to possess or use Peyote. Now Peyote is a central sacrament of many Native American religious practices. We have a government law that criminalizes the central sacrament of a religious group. The question was does this prohibit the free exercise of religion? You would think that criminalizing the central sacrament of a religion does prohibit the free exercise of religion. In a very surprising decision, the Supreme Court led by Justice Scalia said, "No. This does not prohibit the free exercise of religion." It reinterpreted the free exercise clause as exclusively like a nondiscrimination provision said, "As long as the law is neutral and generally applicable, as long as the government is not out to get religious people or targeting religious people, the free exercise clause really doesn't come into play." This really gutted the free exercise clause in a very real sense. I made it very difficult to prevail under free exercise claims under the constitution and has had a long standing negative impact on religious freedom.

Albert Mohler:          Absolutely. By the way, you just passed an invisible integrity test in that answer when you mentioned Justice Scalia, because I have such great admiration for Justice Scalia and yet he was the author of that majority opinion. You didn't mention that in your book, so I was waiting to see how you're going to describe it. But it does remind us that when you're looking even at individual justices and even someone with a titanic influence of an Antonin Scalia over the course of a long life and career on the Supreme Court even a justice's mind can change over time on an issue of this consequence. Justice Scalia was the author of this majority opinion. As far as I know, he really didn't change his mind on this according to his colleagues. He really thought that it was illogical that prisoners in particular should have a religious liberty claim to use Peyote and he was basically willing to redefine religious liberty in order to get to that conclusion. I hate to put it that way, but I mean that's the effect.

Luke Goodrich:         Yeah. I mean he gets credit for integrity in the sense of adhering to his own principles but I think his decision in Smith was deeply misguided, both as a textual matter and an original matter. It's gotten a lot of criticism from both sides of the judicial spectrum ever since. Fortunately the silver lining here is that the Supreme Court's bad decision in Smith did prompt Congress to respond. Our Congress three years later passed the religious freedom restoration act by huge bipartisan margin. That religious freedom restoration act is now a key civil rights law that has protected religious liberty for people of all faiths, including our Supreme Court victories for Hobby Lobby and for the Little Sisters of the Poor. The constitution is not the only protection of religious freedom. That bad decision in Smith led to a good law, which goes by RFRA for short.

Albert Mohler:          Yeah. I was very involved in that and that law took place the very year I entered office as president here at Southern seminary. That's where the pulse quickens a bit in our discussion because this is where the most current debates are hottest. I mean you now have people who voted for RFRA in 1993 who are basically making the opposite argument in 2019. You are looking at a massive reversal in one generation of ...Especially amongst; I'll state it bluntly as Democrats who see “religious liberty” as defined in the Religious Freedom Restoration Act as incompatible with higher goals they've adopted since.

Luke Goodrich:         That's absolutely right. In 25 years there has been a massive shift in the understanding of religious freedom. I addressed this in my book, Free to Believe. Why this shift has taken place. I think you can look at a few different currents but the biggest thing is that longstanding Christian beliefs about absolute truth about abortion and human life and about sexual autonomy. A longstanding Christian beliefs that may not have been uniformly held but at least weren't controversial throughout most of our history. Those beliefs are now viewed as a threat to progress in modern culture. You also see religion playing a less important role in the everyday lives of many Americans and an increase in religious diversity and you put all those things together and that is basically flip flopped support for religious freedom. Particularly among Progressives where at least when it comes to Christian beliefs about life and about marriage, religious freedom is now viewed as a threat to progress in modern culture.

Albert Mohler:          Yeah. I really appreciate the candor with which you address this in your book. I have a book coming out in 2020 and titled, The Gathering Storm in which I deal with a very similar argument. My argument is this: in the Western elites especially, let's say, the French revolutionaries, the Jacobin traditionally, the idea was that religion itself. Any form of theism was antithetical to human freedom and had to be overthrown. It was quite graphically during the French revolution. The American tradition rooted in the English-speaking enlightenment rather than the more radical continental enlightenment came to a different conclusion as you mentioned in the book of the founders believing in the utility of religion, the necessity even if some kind of religious faith in order to give a moral basis for the society. My theory is this, that the basic framework of orthodox Christianity was recognized early by the European elites as incompatible with their understanding of human flourishing.

Albert Mohler:          It was not considered that by the English-speaking elites but rather was seemed to have some functional advantages. But the current elites in the English speaking world have now joined those old European elites and believing no. After all orthodox Christianity is incompatible with a human flourishing and human liberation. I think that's the shape of the urgency. I think that English-speaking project has changed when it comes to those who are in control of the culture. I mean that primarily in academia and entertainment, all the cultural signaling. The difference is that I think our elite culture is willing to tolerate certain forms of spirituality. Even you can have a brand name, you can have the Episcopal Church which would not have fit the French model but you have to surrender all of those doctrinal issues that are associated with the orthodox Christianity, and thus incompatible with human flourishing and human liberation.

Luke Goodrich:         Yeah. That sounds absolutely right. I look forward to seeing your book because I addressed a similar phenomenon in my book and I would say you can hear a lot of Christians fear secularism, anti-religion. I think what we see today is our culture and the elites are increasingly drawing a distinction between ‘good religion’, what they view as good religion and ‘bad religion’. Good religion is private, stays in the church or their home. It's tolerant, accepts other beliefs. It's relativistic. It doesn't tell others they're wrong and it's non-discriminatory. It accepts people for who they really are. Bad religion in the eyes of our culture is public. It affects all of life. It's not confined to the four walls of the home or the church and affects our schools and our businesses. It makes absolute truth claims not afraid to say others are wrong. It's evangelistic tries to persuade and it makes moral claims and is willing to condemn what it views as sin. Nowadays our culture is very willing to condemn what it considers bad religion and oppress it but it won't really lay a finger on what it views as good religion.

 

Albert Mohler:          Yeah. I know, Ross Douthat has made a very similar argument in terms of how the culture views good Catholicism and bad Catholicism following more or less the same logic. I think you do an outstanding job in your book by the way of laying that out, honestly, and extremely clearly. I do want to argue, however; that that is a form of secularization and so to look at a theorist like Peter Berger. He would simply say that looks like an American form of secularization, pluralization and the shifting of terms such that you really do it so long as you hold a private belief. Who cares? They're not going to strap you into an interrogation chair to find out if there might be some shred of theism menu, but as long as you keep your mouth shut and don't try to speak about these things in public. I think of Frank Bruni a columnist for the New York Times who said, "Keep your religion in your hearts, in your heads, and in your pews." I think he said, your homes. In your hearts and your homes and in your pews, just don't let it get out of that or you're out of bounds.

Luke Goodrich:         That's right. As you say, that does have the effect of secularizing the public square and of our culture.

Albert Mohler:          Yeah. It's a softer form of secularism or secularization, we should say here. It's a softer form because it doesn't require you to take a church sign down. It doesn't even require you to at this point pay taxes on your church property. It just says you may have no claim to public consequence that isn't in keeping with. So again, they're glad to have the secularists are very glad to have the Episcopal Church or the United Church of Christ or the Unitarian Universalist Association show up and even seek to influence public policy because they are in keeping with the spirit of the age.

Luke Goodrich:         That's right.

Albert Mohler:          One of the most important aspects of your book is that I think you speak with unusual honesty to Christians about our own responsibility in dealing with issues of Religious Liberty and engagement with the public square. I want to credit you with that because it's not as if you write this book saying there are big bad secularist enemies out there and we've got to rise up the defenses and go to court and beat them. You're willing to go to court and congratulations on your record in court by the way. I have great appreciation for the Becket fund and what you do but you're also speaking to Christians about our responsibility and you expand that out as a Christian in terms of our own responsibility as gospel Christians but then also how to be smart--or smarter--in the midst of these challenges. Speaking about that first part, why do Christians bear a particular responsibility as Christians in the way we engage these questions?

Luke Goodrich:         Yeah. I think a lot of Christians approach religious freedom first and foremost as a political issue or a legal issue without always that it is before that it's a biblical issue and a theological issue. There's a couple of different ways we as Christians can easily get religious freedom wrong. One way, I call them the “pilgrims” in my book, is to treat religious freedom primarily as a political tool for maintaining a privileged place for Christianity in society. The other main way to get it wrong, I call the “martyrs.” It's a reaction against the pilgrims and dismisses religious freedom as a significant issue and treat it as a culture war issue that we don't really need to fight about and say Christians flourish under persecution and treat it as a luxury that we can abandon lightly.

Luke Goodrich:         You have other Christians; I call them the “beginners.” I'm sorry, and who are just waking up to the issue of religious freedom. They may hear about it more often in the news and want to start thinking about it but they're really not sure what to think. I've written Free to Believe after all of these groups and really to say religious freedom is not just this political tool for protecting ourselves. It's not a luxury that we can abandon lightly. It's not just a good idea; we don't need to pay attention to.

Luke Goodrich:         Rather religious freedom is a basic issue of biblical justice rooted in the nature of God and the nature of man. We need to reclaim the theological foundation for religious freedom as Christians. Take that with us as we engage in the cultural and legal issues. What are the modern threats and how do we respond to those threats? That was really my goal with Free to Believe, to start equipping us first biblically, then legally and culturally, and lastly, practically with what do we do about it?

Albert Mohler:          Yeah. I think you're right that there's a typology of how these responses breakdown. I wouldn't exactly label it the way you did. But nonetheless, we'll use your labels for the conversation here. I don't know what the pilgrims would do with your category of pilgrims in this category but they're not here to argue so we can just move on. You're not saying it's wrong. I mean clearly look at your job. You're not saying it's wrong to go to court but you are saying that we don't go primarily on the basis of our commitment even to the U.S. Constitution but because of deeper theological and biblical commitments beginning with Imago Dei, love of neighbor.

Luke Goodrich:         That's right. It's absolutely not wrong to go to court or else I'm wrong every day but it matters a great deal why we go to court and how we go to court and even before we get to court. How we talk about these issues within our communities and with our neighbors. I think as Christians it's vital to enter into the conversation of religious freedom rooted in a biblical worldview. Understanding that the religious freedom is an issue of biblical justice for all people and also that we're called to enter into the religious freedom space, not from a posture of fear. There's so much fear and even sometimes fear-mongering when it comes to religious freedom. They're saying the sky is falling; our rights are going to be taken away in code red emergency.

Luke Goodrich:         And yes, I mean, we've already talked about the dramatic shift in our culture last 25 years and there are major religious freedom challenges ahead that we as Christians have never faced in this country before. Our overarching posture in entering into these conflicts needs to be a posture of hope rooted in the person of Jesus Christ who said, in the gospel of John; “in this world you will have trouble.” He was a realist. When it comes to religious freedom, we will have trouble. In the very next breath he said, "Take heart. I have overcome the world." As Christians we have so much confidence in the ultimate victory of Christ. That's already been one that it really needs to inform everything we do about religious freedom.

Albert Mohler:          Well, well said, and of course it does. I have a little bit of concern at this point because of very contemporary controversies that are going on discussions in the last couple of years amongst American Evangelicals and Roman Catholics and others. There are those on the left who are accusing conservatives of doing exactly what you say. I don't think it's entirely fair to say the least. They're saying that Evangelical Christians, conservative believers in the United States are in a state of panic--a word recently used in a New York Times editorial--and are operating out of fear. I think we have to be really careful because we are not saying that things are not as bad as they look, so I want to be real clear about that. Things are just about as bad as they look but we're not thinking merely out of that frame.

Albert Mohler:          We are operating out of the full wealth of Christian truth and the power of the gospel. I hope I'm making sense when I say I think we have to clarify the argument that way because there are those who are trying to say things aren't as bad as they look and on many particulars of just fact they are as bad as they look. But panic, rightly diagnosed is always the wrong thing for Christians. Being accused of panic when you say there's going to be an inevitable collision when it comes to Christian colleges and universities with a sexual orientation and gender identity laws, that's not panic. That's honesty.

Luke Goodrich:         That's right. We need this sober and well informed educated, look at what the threats actually are because there are very real threats. I'm litigating them today. I'm working on behalf of a religious adoption agency in the City of Philadelphia is shutting them down because of their religious beliefs about marriage. I'm representing a religious school in Indianapolis that's facing lawsuits, multiple lawsuits because they declined to hire teachers who are in same sex marriages. We just had a case granted by the Supreme Court today where the Ninth Circuit said the government can interfere with a religious school's decision about who can teach religion in religious schools. We have a number of very significant threats. What I'm trying to do in my book Free to Believe is really give ordinary Christians, ordinary Americans a realistic assessment of what those threats are. Because we're not facing ... Pastors are not going to go to jail anytime in the next decade for declining to officiate, same sex weddings.

Luke Goodrich:         That's not one of the threats. Even though some people will sometimes bring that up, but there are a wide host of other threats when it comes to religious freedom. On the left they might point to like, oh, you had one case involving a Baker who wouldn't make a cake for a same sex wedding. They would try to say that that's the only aspect of the problem but really that's just the tip of the iceberg. There are so many other issues that are already playing out in court today. If we want to enter into these conversations in an informed, sober and realistic way, we need to understand what the issues are.

Albert Mohler:          Yeah. We have to be vigilant and alert all the time because even as you're speaking about and I'm incredibly thankful for the record you guys have at the Supreme Court. But we also have to recognize that had any one of those decisions gone the other way, the consequences would have been truly dire. Becket does not take unimportant cases. You're looking for appellate cases with precedential value. I get that, I respect that, but that also means that the downside of losing is that it could be massive. If you take the recent Bladensburg case about the War Memorial Cross there in Maryland, had that gone the other way? We really are looking at case by case municipality by park and facility. We just be seeing the stripping of all religious symbolism from American public space. That didn't happen, but I think most American Christians have very little idea how close it came just in the last several months.

Luke Goodrich:         Yeah. Many of these cases have been decided very closely and there are very real risks. If the cases go the wrong way. One thing I'm trying to encourage Christians to ask through my book is what if we lose some of these cases? What if we start to lose? Why does that matter? Does it matter because we won't be winning the culture war anymore? Does it matter because we won't be on top of the heap, or what I argue is it matters because it's unjust when the government shuts down a Christian adoption agency because they don't place children with same sex couples and stops the good work of that ministry? Children go without homes, and that is unjust when the government does that.

Luke Goodrich:         When the government forces a religious school to hire teachers who repudiate the core religious beliefs of the school that is unjust but much of scripture was written to Christians who are facing just those injustices and even worse. As American Christians, we've been so blessed to live in a country that has guarded Religious Liberty so well for so long. We can sometimes forget that so much of scripture was written to the persecuted church and so I devote a number of chapters just looking at what does scripture have to say to Christians who are facing persecution and what can we take away from that in our everyday lives today?

Albert Mohler:          Yeah. Even that word persecution is theologically difficult because I find it rather embarrassing to talk about persecution even in the terms we're talking about it here. Even with dire constitutional and legal effects in the United States when you consider there are brothers and sisters around the world who are in danger of losing their heads simply for allegiance to the Lord Jesus Christ. The word persecution is too big an umbrella for us right now. I'm trying to get American Evangelicals not to use that word about any current or foreseeable threat to the church in the United States. We have opposition but persecution is a word that I think, just in humility, as a church historian ought to be used sparingly.

Luke Goodrich:         Yeah. I think that's absolutely right and we do often throw around that term in a very loose way and I think it's important still to look at scripture and what does it say to Christians who are suffering because that can so inform the types of conflicts, the types of opposition that we face today.

Albert Mohler:          At no point in any canonical book of scripture was there envisioned a representative democracy that would define liberty as we have known in this country since the late 18th century, that's not envisioned in scripture. I would argue that scripture and the scriptural worldview helped to produce that and I'll make that argument assiduously. But yeah, there's just very little direct guidance to Christians about how to vote because no individual in the Old Testament or the New Testament and that sense had a vote. This is new.

Luke Goodrich:         Well, that's right. That's right. I have a chapter with over a dozen stories from scripture on religious freedom conflicts. It's really fascinating to see the variety of stories in scripture involving a conflict between the demands of government and the demands of God for people of faith. Maybe just one; we were talking about persecution versus opposition. All of us know the story of Daniel in the lion's den and also of Shadrach, Meshach and Abednego and being thrown in the fiery furnace for refusing to bow down to the golden statue. Those are stories of persecution like nothing we face here in America. But there's another story in Daniel that's much more similar to what we face and that's where Daniel and his colleagues were invited or given the food from the King's table.

Luke Goodrich:         They were given non-kosher food and this is not the government out to get them to force them to violate their conscience. The government thought it was actually doing something beneficial for them. Yet Daniel and his friends looked at that food and said we can't eat that. That's a violation of our conscience and then their response is quite interesting as well. They didn't engage in civil disobedience. They didn't raise a huge hue and cry. They actually went quietly to the authority who was over them and negotiated for a religious freedom accommodation. They're not in those terms but they said, "give us vegetables." Let us prove that our religious practices aren't going to undermine your interests as the government and the government official let them do that and basically gave them a religious accommodation. It's a fascinating story. We don't often think about it as a religious freedom story. But there are many, many stories like that throughout both the Old and New Testament that I think can speak to the unique religious freedom challenges that we have today.

Albert Mohler:          No. I appreciate the spirit of your book. You're basically calling on believers. Even as you're educating believers about these challenges. You're calling upon Christians to be faithful and vigilant and kind and rooted in the gospel but there's a lack of belligerence and I think a basic respect and kindness baked into this cake as you're presenting it. I think that's very helpful. I want to raise another issue with you that you mentioned a moment ago, press back just a little bit. You were talking about infringements upon religious liberty as injustices and you mentioned, as I recall, an adoption agency or foster care that would now not be able to serve children and that the larger society would recognize that as the loss of a public good and being unjust.

Albert Mohler:          I always have to make the case for your second illustration which is a religious school and its freedom to hire persons who hold to those religious convictions and not to be forced to hire people who do not hold to these religious convictions. I think they're going to be many people especially on the other side of the great cultural dynamic here who are going to deny that that's a social good at all. As a matter of fact, a Christian school is being Christian or for that matter and Islamic school being Islamic and Orthodox Jewish school. Being Jewish in an Orthodox mode is not contributing to the public good, but is a threat to the public good. I think that's one of the great intellectual shifts in our time. I just don't know that we're going to have much traction with the people who are making me these arguments by saying that an authentically Christian school operating in an authentically Christian way as a public good. That's the business I'm in and I intend to keep doing it.

Luke Goodrich:         Yeah. We're representing multiple Christian schools right now that are facing lawsuits precisely for that reason because they want their teachers and leaders and administrators to be fully committed to their religious mission. You're absolutely right. That's one of the major battlegrounds on religious freedom today. The good news is there are some helpful Supreme Court precedents are already on the books. One of those cases actually involved the Mormon Church in my home state of Utah, and the Supreme Court decided nine to zero that the constitution supports the right of religious organizations to hire people who are fully committed to their religious beliefs. There is a public case, a public argument to be made even in those who disagree with us. I mean climate, organizations devoted to environmentalism. They're not going to hire climate change deniers or organizations devoted to abortion. A Planned Parenthood is not going to be forced to hire pro-life people. Even liberals and progressives get that, they get the idea that mission driven organizations need to be able to hire people who support their mission.

Albert Mohler:          Well, they get it except when they don't get it; they certainly didn't get that point when it came to the Christian legal society, the Hasting School of Law.

Luke Goodrich:         That's right. They get it at a theoretical matter. They're often unwilling to extend the same treatment to religious organizations. The good news is that that Mormon case, Amus, was nine to zero from the Supreme Court. Our Hosanna Tabor case in 2012 was nine to zero from the Supreme Court. There's some good precedent on the books that we can appeal to.

Albert Mohler:          Right. The Hosanna Tabor is just such an historic case. I think we'll be looking if we have opportunity, I mean not individually. If I'm alive several decades from now, I'm quite certain that Hosanna Tabor is going to be cited as a key precedent. I think in some ways the analog or anti-pole to the Lemon decision.

Luke Goodrich:         Right. I think this is one of the areas where the Supreme Court is a bit different from our cultural elite right now. That's actually a good thing. I think many of the cultural elites would be glad to force religious schools to hire people who reject their core religious practices but there's good Supreme Court precedent on the books. I think the big pressure point is going to come in the area of government benefits--like government funding, particularly like voucher programs.

Luke Goodrich:         In blue states, blue municipalities, you're going to see a lot of efforts in the next five to 10 years to place strings. To attach strings to government benefits, to place conditions on government funding and telling religious organizations. Well, you can ensure you can get vouchers but you can't discriminate if you want to get vouchers. A lot of those issues are going to be litigated or really litigating one right now for the religious adoption agency. A lot of those issues are just going to be religious organizations having to make tough choices. How important is it to you to get government funds and can you make yourself independent from the need for government funds in order to maintain your religious mission?

Albert Mohler:          Well, you're saying exactly what I would hope you would say you said it in the book, so I greatly appreciate that. The institution I lead receives absolutely no tax money of any sort, participates in absolutely no Title 4 funding, nothing and never has. The same thing is true at our undergraduate and graduate levels. There is only, I don't know, something like 12 institutions across the educational world of which I'm aware of that hold of that policy. We have no government grants for any research or whatever. Our federal government by the way is not tempting many theology professors with big grants in order to translate the scriptures or something. But that is a key issue and the practicality of your book is toward the end where you actually offer guidance to Christian institutions.

Albert Mohler:          One of them is basically; I'll just say, travel light. You better decide what you have to have, especially when it comes to external funding and whether or not you're ready to go without it. I don't think that's going to be a choice for and you mentioned state by state. Yes. I think also program by program eventually is not going to be a choice. I also think, by the way; that some of this is non-governmental. I think one big flashpoint for Christian colleges and universities is going to be the NCAA, which is not a government agency. But boy, I tell you they have huge authority and the accrediting agencies as well that I would argue are quasi-governmental now operating on behalf of the government, but we've got a lot to look at here.

Albert Mohler:          One other very important issue you mentioned and, as an institutional president, this is something that shocks me when I discover it. Even in the last couple of days I've discovered it. You have Christian institutions that do not state clearly what their Christian beliefs are in such a way that they would even be able to tell a court. This is how we hire and this is how we admit students and this is what we believe and teach. It's non-negotiable. I'm an ardent confessionalist. I'm just surprised at how unarmed many Christian organizations are even to defend what their beliefs are because they're not clear about them.

Luke Goodrich:         That's right. I think you've hit the nail on the head for where these threats come from. Some of them come from the inside and this is what I address in the book. You have some threats come from the inside. If you fail to clearly define and pursue your religious mission and you're not wise enough in your employment practices and aligning those employment practices with your mission, you will be bringing in into your organization threats to your own religious freedom. Those will manifest in lawsuits and employments. You also have threats from the outside. And again, that can come from not clearly defining your religious mission.

Luke Goodrich:         It can also be come from being too reliant on your partnership with the government or with other organizations. There are so many steps, whether it's higher education; whether it's small K-12 religious schools, churches, business owners, there are many steps that we as Christians can take to start anticipating religious freedom challenges before they arise and positioning our organizations and our ministries so that they can weather the storm that is ahead. And that's one of the reasons why we need to get prepared is just a matter of stewardship and a matter of being not just innocent as doves but also as shrewd as serpents.

Albert Mohler:          The author is Luke Goodrich and the book title is Free to Believe: The Battle over Religious Liberty in America. I don't often say this on this program, but it's the book that every pastor needs to read, every ministry leader and intelligent Christians. It's also been a wonderful conversation. Mr. Goodrich, thank you for the conversation and thank you for joining me today for Thinking in Public.

Luke Goodrich:         Dr. Mohler, thank you so much for having me and thank you for your work.

Albert Mohler:          Thanks again to my guest, Luke Goodrich, for thinking with me today. If you enjoyed this episode of Thinking in Public, you'll find more a hundred more at albertmohler.com under Thinking in Public. For information on the Southern Baptist Theological Seminary, go to sbts.edu. For information on Boyce College, go to boycecollege.com. Thank you for joining me for Thinking in Public. Until next time, keep thinking, I'm Albert Mohler.

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