Two Comments and Two Questions about Religious Liberty

[Cross-posted to By Common Consent]

Last week I attended the "Kansas Summit for Religious Freedom," a gathering designed to provide representatives of multiple different faith traditions here in Wichita, KS–Christian, Judaic, Islamic, Buddhist, and more–to share thoughts about and perspectives on religious pluralism. [In the attached photo, from left to right: Rabbi Emeritus Michael A Davis, Congregation Emanu-El; Gehad Qaki, Islamic Society of Wichita; Senior Pastor Rev. Dr. Robin McGonigle, Riverside Christian Church (Disciples of Christ); Rama Gandikota, President of the Hindu Temple of Greater Wichita (and son, providing translation); and Micah Fries, Director of Programs, Multi-Faith Neighbors Network.] The theme of the gathering--which was primarily organized and paid for by the Church of Jesus Christ of Latter-day Saints, the Mormon church I belong to; the main sponsoring organization, the Religious Freedom Alliance Council, was founded in Provo, UT, and is led by BYU faculty and graduates--was "Religious Liberty and Human Flourishing." I appreciated much of what I heard there; it gave me some good things to think about. Unfortunately, the summit wasn't designed to allow for much audience interaction, so I came away with a couple of questions that I really would have liked to have heard some of the speakers discuss as well. So instead, I'll share them here.

The comments first. The presentation the event’s keynote speaker, Dr. Hannah Smith from BYU Law School, mostly covered data that I suspect many who are even just remotely interested in the topic of religious liberty, from whatever ideological perspective, has heard before: that regular participation in a religious community is one of the strongest variables that point towards human flourishing, such as levels of personal happiness, physical and mental health, social connection, etc. The data on this is voluminous (though as with anything, particularly anything that involves the social sciences, there is always contrary data as well). But what really struck me was her argument about how a strong defense of religious liberty contributes to the spread of these positive correlations across society.

Leave aside how exactly to define “religious liberty” (a contentious argument which Smith did not get into); let’s assume that however you define it, its presence will result in more religious believers and organizations exercising their liberty by expressing themselves more fully in more diverse ways. Presumably, that would mean—again, leaving aside exactly how theses expressions would be manifest in the context of actually existing religious organizations, many of which are not entirely friendly to doctrinal or theological diversity within their ranks—more religious institutions offering more religious visions to more ranges of religious perspectives and preferences. That would in turn mean greater levels of competition in the religious marketplace—and such competition will in its turn result in more religious institutions, and their members, necessarily involving themselves in the civic-strengthening work of discussion, engagement, compromise, moderation, and more.

I would have loved to discuss this more deeply with Dr. Smith. It’s a Madisonian framing that I’d never thought of before, one which presents religious diversity in terms of factions that will be obliged—because there are so many of them, thanks to the aforementioned liberty—to negotiates with, learn from, and adapt alongside other religious factions, thereby creating a kind of ongoing civic lesson to all involved in any of those religious organizations. It’s kind of an ingenious argument, though how exactly one is supposed to hold on to a utilitarian conceptualization of religious liberty while also holding on to doctrinal devotion to one’s own religious faction isn’t an easy question to answer, I think. It places the whole theologico-political problem on a liberal footing that I suspect at least few leaders of my own LDS Church, if they understood the implications of this philosophical shift, would have some real concerns about. But it’s a valuable intellectual framing of the problem of pluralism, nonetheless.

Less philosophically weighty, but much more pastoral and wise (perhaps for that reason), was a concluding address given my old friend James Fleetwood, a retired judge and a man I served as a counselor to in a bishopric a decade ago. Rather than touching on any of the contentious debates over or even definitions of religious liberty, Jim focused on the need to peacefully engage with others, and specifically on the Christian requirement, in his understanding, to treat all others’ belief systems with respect, so as to become the sort of people who can love another as God loves us. He organized these ideas primarily around the centrality of sacred spaces–temples, yes, but also mosques, synagogues, and more. Such spaces provide for the faithful with both connection and revivification; as such, the claim of religious groups to spaces of holiness must be respected as much as those making the claims themselves. Here I am expanding upon Jim’s ideas somewhat, but it seems to me that he was describing a more demanding obligation than just respecting “belief,” because sacred spaces are, well, spatial, and therefore social and political. Religious worship is not a merely intellectual exercise; it is a bodily one. Thus, seeking peace in the midst of pluralism involves real concrete acts of respect: sharing spaces, shared participation, and more. One of his lines will stay with me for a while, I think: “Respecting the reverence of others refines us.” If there could be a better summation of what any meeting about religious liberty ought to teach, I can’t think of it.

Okay, so much for comments; now the questions. 

First, a more general one, which again I really would have liked to have been able to talk with Dr. Smith about. If we are to understand that religious liberty will benefit society through her Madisonian model, then presumably it does so through enabling people to find greater numbers of ways to attach themselves to religious factions and organizations. But doesn’t that mean that anything which discourages people to attaching themselves to and engaging with others through religious factions and organizations is actually hurting the cause of religious liberty? Because if that’s the case, then there is a, perhaps small, but still very real problem here.

That problem, specifically, is that the concept of “religious liberty”—once more, however you want to define it—has over the past 25 years been broadly appropriated by, and therefore has become coded as supporting, politically conservative, anti-LGTBQ forces. It obviously doesn’t have to be this way, but both the polling data and the legal record provides good reason to acknowledge the reality of that association, or at least the perception of that association, the religious liberty movement’s involvement in fights over parents being able to shield their children from stories involving homosexual persons (Mahmoud v. Taylor) or over the legitimacy of licensed therapists being able to provide “conversion therapy” to gays and lesbians (Chiles v. Salazer) getting as much or more attention than the fights it has engaged in on behalf of minority religious groups. And that association is driving people away from religious participation—not a huge number of people, but the negative effect of religious bodies involving themselves with politically conservative causes is quite real.

Please note that I don’t see this as a “gotcha!” problem for religious liberty. Personally, I’m not a First Amendment absolutist, as I suspect most of those who presented at the summit were; on the contrary, I tend to see strong readings of the First Amendment as creating at least as many social problems as goods (Buckley v. Valeo, Snyder v. Phelps, Janus v. AFSCME, or National Socialist Party of America v. Village of Skokie, just to start). But still, there’s nothing flawed with the priority that many attach to religious liberty—including the new president of the LDS Church, Dallin H. Oaks. It’s a valid and important principle to defend. I would just like to see people wrestle with the costs of defending it, particularly when those costs include at least some degree of discouraging people from benefiting from the involvement they might have gained through association with religious organizations in the first place. (Of course, this is overwhelming a problem faced by socially conservative Christian churches, including Mormonism; more liberal Christian, Jewish, Islamic, and other religious bodies really don’t face this dilemma at all—which, unfortunately, too often means the former group gets to dominate the discussion when religious liberty comes up.)

Another question, tangentially related to the one above, but even more directly connected to matters of First Amendment interpretation. Lance Kinzer—a smart Kansas lawyer and former legislator whom I'd met and interacted with before—gave a presentation that dove deep into the details of various current and past court cases, on both the state and federal level, dealing with matters of religious liberty. A consistent through-line in his presentation was the problems which Employment Division v. Smith—a case which overturned previous First Amendment precedents and stipulated that the amendment’s guaranteed religious freedoms should not ever provide exceptions to “generally applicable” criminal or civil laws—has posed for religious organizations over the years. Specifically, he wanted to see the post-Smith standard of simply asking whether the government has a “rational basis” for imposing a possible burden on a religious body overturned, and to bring back the “strict scrutiny” rule for judging the constitutionality of any possible burden which essentially existed before that 1990 decision. 

That’s a position that I basically agree with—but it’s one that also presents some conservative defenders of religious liberty with an inconsistency.Specifically, multiple conservative churches (including my own LDS Church) have written a legal brief urging the Supreme Court, in the case Little v. Hecox, to refuse to grant the plaintiffs—transgender athletes who are suing the state of Idaho, arguing that a state law which denies transgender individuals the ability to complete in sports aligned with their gender identity is a violation of the right to be treated equally—a “quasi-suspect” classification. This is deep legal nerdery here, but to make it as simple as possible: past Supreme Court decisions, going back many decades, have articulated various categories of plaintiffs whose standing in American society are either more or less likely to trigger various standards of scrutiny when it comes to judging the impositions and restrictions of laws. For more than 70 years, race as consistently been labeled a “suspect class” and has thus been accorded “strict scrutiny,” with the result that laws which discriminate or burden citizens differently on the basis of race, whether intentionally or unintentionally, are almost always found unconstitutional. Gender, beginning about 50 years ago, has been labeled a “quasi-suspect” classification, which in practice means that laws which end up burdening people on the basis of gender are not as likely to be found unconstitutional as those which do so on the basis of race, but are more likely to be so found than those distinctions which merely have to pass the “rational basis” test.

I think advocates of religious liberty are correct to want to get back, broadly speaking, to that era of constitutional interpretation when the First Amendment freedoms guaranteed to religious bodies necessitate that laws which restrict or regulate churches and other religious organizations have to pass the strict scrutiny standard. But I also think that if churches ought to enjoy such projections from the state, that gender and sexual minorities—like trans individuals that want to compete in sports—ought to be able expect similar protection as well. That’s only consistent, right?

The LDS Church and other conservative religious groups navigate this inconsistency by pointing out that previous interpretations of the rights of churches has included their right to be exempt from laws that make it illegal to fire someone, under certain religious conditions, for being gay or transgender; the same goes for laws having to do with public accommodation or public aid. These interpretations would have to be rethought if the classification of those burdened by what is allowed under those exemptions were to change. They’re not wrong to point that out! Consistency on this point of law would obviously require a whole new set of balancing tests be worked out, probably over a long period of time, and I have no idea what such balancing tests might eventually look like. So it doesn’t surprise me that someone who makes religious liberty their primary concern would rather leave things as they are. But then, if you want to leave things as they are, then why the wish (a justifiable one, I think) to upset current legal balances by hoping for an overturning of Smith?

Point is, these are deeply complicated issues, and they invite a lot complicated trade-offs and difficult arguments. I wouldn’t expect every gathering of folks speaking on behalf of religious liberty to make room for a consideration of all this—but since this particular gathering, valuable and insightful as it was, really didn’t allow for any formal debate, so here I am, making my contribution to such here. Consider it an expression of gratitude for all the important ideas that were voiced by those who participated (at least I hope they see it that way.) I appreciated it being part of it very much!