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Religious Liberty in a Polarized Age, by Thomas C. Berg. Grand Rapids, Mich.: William B. Eerdmans Publishing Co., 2023.
In addition to providing for freedom of speech, press, peaceable assembly and petition, the First Amendment to the Constitution contains two religion clauses. One prohibits the congressional establishment of religion and the second provides for its free exercise. The Supreme Court has applied both provisions to the states via the due-process clause of the 14th Amendment.
In recent years, the U.S. Supreme Court has increasingly focused on the rights of minorities under the free-exercise clause. Victories by evangelical Christians involving their free-exercise rights in the courts appear to be a prime reason that so many still support former President Donald Trump, whose appointees to the U.S. Supreme Court all joined in the Court’s decision in Dobbs. V. Jackson Women’s Health Organization (2022), overturning a constitutional right to an abortion, which the Court had established in Roe v. Wade (1973).
In Bostock v. Clayton County, Georgia (2019), however, the Supreme Court also ruled that Title VII of the Civil Rights Act of 1964 protected the rights of LGBT individuals, while in Trump v. Hawaii (2018), the Supreme Court upheld the right of the president to issue a restrictive immigration order primarily applying to, and clearly motivated by animus against, individuals from predominately Muslim countries. In Religious Liberty in a Polarized Age, Professor Thomas C. Berg from the University of St. Thomas School of Law in Minnesota, who has represented numerous religious and a-religious minorities in court, does a masterful job of linking these and other cases together in a fashion that he hopes might reduce civil discord.
In his preface, Berg cites the adoption of the Respect for Marriage Act in 2022 as an example of how contested rights can be balanced so as to protect the rights of those from rival ideological camps. Overturning the earlier Defense of Marriage Act (DOMA), which had already been rejected by the courts, the law recognized the validity of same-sex marriage under the equal-protection and due-process clauses, while affirming that its recognition would not be interpreted to undercut the benefits or tax status of religious groups that still adhered to the exclusivity of man-woman marriage. It further recognized that the rival views of marriage both rested on deep-seated views that differed from earlier prejudices against interracial marriages. Berg defends the law as an example of reciprocity.
In chapter 1, Berg points to the increasing political polarization within the U.S. between red and blue states, rural and urban areas, and even those who attend church on a regular basis and those who do not. He notes that liberals tend to regard those who uphold traditional views of marriage as bigoted, while conservatives believe that liberals are attempting to impose their ideology upon them. Such feelings lead to fear, anger, and mutual distrust of one another’s motives that cause proponents of both sides to distrust one another and question their motives. Although Trump is often blamed for this polarization, which he has certainly aggravated, polarization existed before his election, and both sides share in the blame, albeit not equally.
In examining in chapter 2 how polarization has affected issues of religious liberty, Berg focuses on conservative support for discrimination against Muslims, liberal opposition to protecting the rights of those who oppose anti-LGBT discrimination laws, and the conservative/progressive divide over the legitimacy of measures designed to restrict the transmission of COVID-19. Berg believes that evangelical Christians are undermining their own claims to religious freedom when they block the construction of Muslim mosques and oppose Muslim immigration. Noting that President Trump boasted that conservative Christians “never had a greater champion in the White House,” Berg observes that “liberty only for the beliefs you champion is not liberty. It is simply a means of advancing these beliefs.” Berg is equally hard on progressives who seek to eliminate all religious exemptions to nondiscrimination laws while comparing members of such religious groups to Holocaust deniers or supporters of slavery. On this issue, he supports the Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2016), ruling that small-business owners should not have to violate their religious convictions by advocating positions that they oppose.
For many years, the Supreme Court protected the free-exercise rights of religious adherents even in cases where such rights conflicted with generally applicable laws Thus, in Sherbert v. Verner (1963), it protected an individual against denial of unemployment benefits after she quit a job rather than work on her designated sabbath. Similarly, in Wisconsin v. Yoder (1972), it refused to apply compulsory school requirements to Amish who believed that attending school beyond age 14 would subject children to undue secular influences.
This free-exercise approach changed when, in Employment Division v. Smith (1990), the Court denied a religious exemption under the free-exercise clause to Native American Indians who were ingesting small amounts of peyote as part of their worship. Berg lauds the congressional response, followed later by many states, in adopting Religious Freedom Restoration Acts, which required any substantial burden on religious entities of neutral laws to be justified by a compelling interest. Adopted by bipartisan majorities, Berg believes that progressives have been mistaken in subsequently condemning the law when it protected religious groups from being forced to comply with broad federal mandates on LGBT rights or health care — Berg favors the Supreme Court decision in Burwell v. Hobby Lobby Stores (2014), exempting closely held businesses from having to provide birth-control insurance coverage that its owners oppose on religious grounds.
Berg is generally sympathetic to Supreme Court decisions in Tandon v. Newsom (2023) and related cases that held that restrictions designed to prevent the spread of COVID-19 should not fall harder on religious than on non-religious entities. He believes that there is a close connection between the free exercise of religion and equality of treatment.
Beginning in chapters three through five, Berg explains how religious identity is a vital part of many individuals’ “personal identity” and depends not simply on religious beliefs but on a robust ability to act out such beliefs. In a comparison that he hopes will help promote understanding between the two groups that are often ideologically divided, Berg claims that there is a close analogy between exercises of religious liberty and same-sex marriage. Members of both groups need freedom to pursue their own identities, and both have faced societal opposition for doing so. Berg believes that such freedom should extend not only to acts of worship but to religious and advocacy organizations through which such individuals seek to put their faith into practice.
However important such an identity might be, the establishment clause is designed to prevent government from forcing such beliefs upon others. Berg thus questions the decision in Town of Greece v. Galloway (2014), in which the Supreme Court upheld prayers before town council meetings, even though the town had drawn clergy members solely from Christian denominations immediately within the town. Religious believers should realize that such state-sponsored public prayers can constitute just as big an imposition on nonbelievers as requiring those with religious objections to provide birth-control or abortion coverage to their employees.
In chapter 4, Berg explains how laws guaranteeing religious liberty and preventing religious establishment were originally designed to promote civil peace while securing the loyalty of citizens regardless of their religious or nonreligious identities. Contrary to assertions in the decision in Employment Division v. Smith, Berg notes that American revolutionaries chose to exempt members of religious minorities like Quakers from generally applicable laws by allowing them to affirm rather than swear their oaths and allowing them to refrain from serving in the military. The constitutional ban on religious-test oaths was further designed to promote religious pluralism. Berg believes that imposing special restrictions on Muslims and other minority religions breeds distrust and is more likely to radicalize their members, much as he believes fears by conservative Christians about being forced to support policies that they disapprove led many of them to support Trump, despite his moral failings, as their “bodyguard.”
Working in part from the idea of subsidiarity (the value of nongovernment smaller-scale organizations), Berg argues in chapter 5 that religious freedom promotes the public good. Again, analogizing religious with sexual identity, Berg believes that liberty allows families to flourish and charitable organizations to serve others, often more effectively than governments can do on their own.
Addressing free-exercise issues in chapter 6, Berg resumes his attack on the Smith decision, noting that laws that appear neutral on their face often fall with particular impact on religious groups. He favors judicial decisions that allow such groups to live out their own beliefs and choose their own leaders on the basis of religious criteria. Whether the Court adopts the compelling-interest test it used before the Smith decision or something similar, it must be “demanding” enough to protect religious exercise as a “fundamental right.” He notes that far from simply protecting evangelical Christians, religious-freedom restoration laws more often protect the rights of Native Americans, Buddhists, and other members of minority religions. By contrast, he strongly opposes the proposed Equality Act and the Do No Harm Act, which would undermine RFRA. The free-exercise clause does not give carte blanche to any group to engage in activities that directly harm others, but for regulations of religious practices to be justified, such harms must be immediate, proximate, and severe.
In devoting chapter 7 to the protection of minority faiths, Berg criticizes conservative Christians for not upholding the rights of other religious minorities, sometimes even to the point of denying that such faiths (for example, Islam) constitute a religion. He notes that “if evangelicals ask for a presumption of sincerity, they must also give it.” Acknowledging that conservative Christians have failed to recognize the rights of non-Christian minorities, Berg believes that progressives, particularly within red-state enclaves, have failed to recognize how their own attempts at promoting equality (as in subjecting college religious groups to nondiscrimination provisions in choosing their leaders), often minimize their effect on their freedoms.
Berg writes that “at a minimum, protection of religious minorities requires protection against government’s intentional discrimination, targeting, or hostilit.y” He further believes that governments should not extend exemptions to some groups on nonreligious grounds while denying them to those whose conduct is based on religious convictions (permitting, for example, certain government employees to wear beards for health, but not religious, reasons, or allowing businesses to serve more customers during a pandemic than churches). Government should further prevent “unintended but unjustified burdens” from generally applicable laws that fall more heavily on religious groups.
Berg thinks that while protecting the rights of religious conservatives, the current Supreme Court has allowed serious impositions on the religious practices of minority groups, such as Native Americans and non-Christian faiths. He is particularly critical of the Court’s decision in Lyng v. Northwest Indian Cemetery Protective Association (1988) that allowed the government to construct a road through part of a national forest that was sacred to Native American faith.
In Chapter 8, Berg returns to the necessity to protect LBGTQ rights and religious freedom, both of which he believes are essential to individual expression and flourishing. Drawing parallels between the two sets of rights, Berg observes: “The commitment to religious liberty itself does not rest on saying that all faiths are spiritually true or morally good. It rests on saying that people need to be able to decide for themselves these matters important to their identity, even if they decide erroneously.” Berg observes that overturning Obergefell v. Hodges (2015), which recognized a right to same-sex marriage, “would be unwarranted and disastrous.” Berg argues that “The Fairness for All Act, introduced in 2019 and supported by a modest coalition of religious conservatives and gay-rights groups, would add SOGI [Sexual Orientation and Gender Identify] nondiscrimination rules and provide meaningful exemptions and limitations to protect religious organizations and individuals.”
Although Berg believes laws must protect religious nonprofit organizations and the owners of small businesses who engage in expressive conduct, he does not think such protections should allow discrimination against LGBTQ members or others in the general marketplace, especially in cases where there are no alternate providers. In similar fashion, he opposes awarding contracts to religious organizations that gives them a chokepoint over any services that they oppose, while arguing that the government has no more right to create its own chokepoint by requiring religious organizations to violate their consciences.
In Chapter 9, Berg addresses government religious speech. He is wary of allowing governments to erect religious monuments, engage in subtle coercion with respect to religious activities in public schools, or endorse one religious viewpoint over another. Barring government sponsorship of religion does not mean that religion must be privatized. Rather it leaves religion, “as much as possible, to the voluntary decisions of private persons and groups — who may carry their faith into public settings if they choose.”
Ultimately, Berg believes that proponents of religious freedom and equal rights for all should, following theologian Reinhold Niebuhr, be alert to irony and the recognition that “one side’s comparative virtue can turn into vice.” Seeking tolerance of others, Berg acknowledges that some issues, such as abortion policies, are more difficult to reconcile than others. He even raises the possibility that there may be circumstances in which an individual’s faith might not only permit but might even require an abortion.
Overall, however, Berg believes that the central issues he has discussed are “more amenable to solution, at least in principle.” Quoting Jonathan Rauch’s analysis of a Utah law that provided for “nondiscrimination in matters like housing and public accommodations, combined with significant religious-freedom exemptions for organizations and individuals,” Berg believes that “Even when we disagree on our core beliefs about faith and identity and justice, we can still share the country. We can still reverse spirals of polarization.”
At a time when it is easier to mobilize individuals on the basis of fear rather than hope by accentuating differences rather than similarities, Berg’s goal is worthy. One can agree or disagree with specific examples of how Berg would draw the line on matters of religious freedom and equality while recognizing the wisdom of his overall approach and its consistency with the aims of the First Amendment religion clauses. Berg’s work is especially important because it shows how the religion clauses of the First Amendment can, like comparable provisions for equal protection of the laws, contribute both to civil peace and human flourishing.
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