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); Sriraman Kadambi, temple priest at the Hindu Temple of Greater Wichita (with his son, Srivas Kadambi, 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!

Rauch Among the Mormons

[Cross-posted to By Common Consent]

Jonathan Rauch’s Cross Purposes: Christianity's Broken Bargain with Democracy, the latest book by the longtime policy journalist and public thinker, argues three things:

--first, that throughout American history Christian churches have played an essential role in enabling our liberal democracy to properly function;

--second, that America’s Christian churches (mostly, though not exclusively, Protestant ones) have of late abandoned this role, and by so doing have contributed to the breakdown of liberal and democratic rules and norms in American life;

--and third, that the Church of Jesus Christ of Latter-day Saints has continued to model exactly the sort of role which historically American Christian churches had once played, and that therefore, the more the rest of American Christianity can learn from and perhaps even emulate the Mormons–very specifically, the room which he believes LDS doctrines and practices make for a pluralistic civic theology–the healthier America’s democratic culture and institutions will be. 

Given the praise contained in that third point–and given the philosophically liberal presumptions which underlie it–it’s not surprising that Rauch and his book have received a positive, bordering on enthusiastic, reception among intellectually-inclined mainstream American Mormons, while a small philosophically (as opposed to merely politically) conservative minority have viewed Rauch’s arguments far more suspiciously. Who is right? Assessing that requires considering Rauch’s claims in somewhat more detail.

Rauch is well-known as an advocate of classical liberalism and political moderation; indeed, a large part of his reputation as a writer has been built on the fact that he is both an unapologetic atheist and a gay activist, yet neither reasons nor votes the way most Americans would stereotypically assume a gay atheist would. Throughout his career, Rauch has presented himself as a consummate pragmatist, always asking careful questions and eschewing any kind of controlling ideology. Of course, as with pragmatism generally, this kind of evidence-based, practical-minded worldview does tend to support a particular ideological position–namely, a classically liberal, utilitarian, and secular one, in the spirit of John Locke, Adam Smith, James Madison, Jeremy Bentham, and John Stuart Mill. Early in Cross Purposes, he describes his ideological preferences (though without calling them that) succinctly: “the modern tradition of freedom, toleration, minority rights, and the rule of law.” In support of such aims, he sees “three linked social systems” as essential: “liberal democracy to make political choices; market capitalism to make economic choices; and science and other forms of open critical exchange to make epistemic choices” (p. 12). He is and long has been a consistent defender of responsible, thoughtful, but nonetheless total individual choice, in matters of politics and economics and religion, unfettered by custom or community.

Still, he's no libertarian. He knows that there are things that he does not and perhaps cannot know, and thus needs reign in his drive for individual autonomy and trust at least to a certain degree in the slow, patient work of ideas and options through society and culture. It is that conservatism in his nature which has led him, a non-believer, to take seriously the historical role that Christianity has played in the development of the American democratic system that he prizes. In the book, he repents of his one-time intellectual over-reliance upon the separation of church and state when addressing social and political problems; he now views his youthful celebration of “apatheism”–the ideal of simply “not caring very much one way or another about religion”–as “superficial” (p. 5). Instead, he now believes “not just that secular liberalism and religious faith are instrumentally interdependent but that each is intrinsically reliant on the other to build a morally and epistemically complete and coherent account of the world” (p. 21).

In his view, since secularism and freedom of choice cannot fulfill the human need for belonging and meaning, and since the Christian religion cannot escape its inability to account for the physical laws and the moral horrors of the universe, what is necessary–and what he believes that “the United States has been generally good” at for most of its existence–is for both American Christianity and liberal democracy to do their part in holding up the walls of our civic home. Creating an environment wherein this balance can be maintained requires “that the Constitution be interpreted in a way which is consistent with the well-being of law-abiding faith communities, and that God’s work be interpreted in a way which is consistent with the well-being of democratic pluralism” (p. 33). The rule of liberalism in matters of politics and law must always accommodate religious exceptions, he affirms–but at the same time, the rule of Christian faith in society and culture must always give way to liberal protections and rights. This is a complicated balance, but it is one Rauch has confidence in, and one that he seeks to persuade his secular readers to be confident in as well.

Having laid his foundation, Rauch proceeds to build an argument that aligns with a good deal of other contemporary sociological research and political observation. First, that over the 20th century, mainline Protestant churches became less culturally distinct, losing their ability to mold their parishioners and implicitly direct them towards the virtuous role they had historically played in America’s civic order. And second, that Protestant churches which rejected the mainline’s compromise with secular liberalism gradually moved in an ever more partisan direction, adopting a paranoid and conspiratorial version of Christian teachings which Rauch refers to as “the Church of Fear.” This transformation led them to acquiesce to–and eventually triumphantly embrace–the vulgarity, immorality, and cruelty of Donald Trump’s paranoia and defensiveness as their perfect political avatar. And while I will not deny that my personal political judgments are a factor here, I would still insist that the passages where Rauch brings receipts, showing how thoroughly un-Christian it is to support Trump and the party he has built in his image, are really the best in the whole book. 

Rauch shows how evangelical (again, primarily Protestant) Christians have dismissed their previous insistence upon personal character in judging candidates, and in so doing ignored Trump’s criminality; how their gleeful identification with Trump as a cultural fighter has underscored how little faith they actually have in God’s providence; and how their embrace of what Rauch calls “sharp Christianity” has prevented them from articulating even a semblance of adherence to the Christian imperative to forgive and love, rather than fight and punish. It is, frankly, a damning indictment–and since he believes that those imperatives have been central to the develop of the civic culture within which American democracy developed, it is an indictment of Trump’s Christian supporters as un-American as well. All of which leads him to conclude:

[S]ecular liberalism and Christianity have separate purposes. They do not need to ally (and should not); but they do need to align, at least well enough so that democracy’s wheels don’t come off. . . . In that respect, we seculars are entitled to hold the church accountable to the democracy of which it is part. We are entitled to hold it accountable for the choices it makes. While the church’s relationship with God is its own business, secular Americans are justified in reminding our Christian friends that the Church of Fear is toxic for them and for us. We are not out of our lane to suggest that what Russell Moore calls 'confident Christianity'–one which 'constantly reminds us that this life is less important than the next [and] demonstrates something of what it means to forgive and serve one another'–needs repair for all our sakes. In short, we have standing to hope, perhaps even insist, that Christians get their act together (p. 89).

As I wrote at the beginning, Rauch believes American Mormonism provides a model of action that Christians could use a blueprint to repair themselves. But should we accept as accurate his overarching historical account of American civic pluralism? Should we accept as correct what he sees within the Church of Jesus Christ of Latter-day Saints as contributing to it? And if we do not accept one or both of these, does that mean the conservative critique of Rauch is correct? 

Let’s begin with what I assume to be the most obvious problem (at least for the likely readership of this essay; were I a Roman Catholic, Rauch’s Protestant-centric account of America’s civic culture would probably rankle even more). Any Mormon who is remotely familiar with our own history ought to be prompted to ask Rauch why his initial description of the American bargain between Christianity and democracy doesn't incorporate an explanation for the profoundly anti-pluralist attacks on Mormonism that defined its nineteenth-century development. After all, perhaps the single greatest argument that America’s liberal democracy was not, in fact, built within the liberal civic walls he describes was the official exclusion and persecution that violently drove the Church of Jesus Christ of Latter-day Saints out of the United States entirely. And this is not a parochial point; placing nineteenth-century anti-Mormonism alongside slavery and Know-Nothingism as clear signs that America’s Protestant Christian civic culture was heavily dependent upon racial, ethnic, religious, and gender exclusion is broadly accepted as a key component of any historically honest consideration of America’s civic identity.

Yet the only discussion of this defining example of religious oppression in American history which is present in Cross Purposes isn’t to be found Rauch’s description of the intellectual components of America’s liberal democratic culture, as it should be; rather, it appears as one of the motivating reasons why Mormons–on Rauch’s reading–are so supportive of that democratic culture: “the modern church’s...memory of persecution has bred sensitivity to the importance of religious freedom and pluralism” (p. 108). Contrary examples from Mormon history–like Brigham Young’s politically illiberal State of Deseret or the economically illiberal United Order of Enoch–receive no mention in the book. Joseph Smith’s Council of Fifty does get a mention, but even that rhetorical embrace of religious authoritarianism–however quickly abandoned–is instead presented entirely in terms a defense of freedom and religious choice, emphasizing how “Smith went so far as to...propose constitutional revisions requiring ‘the armies of the government’ to enforce ‘principles of liberty’ for all people, not just the Protestant majority” (p. 110). That Rauch passes over the complications of Smith’s not-always-coherent embrace of both religious authoritarianism and republican freedom, to say nothing of other explorations of very real authoritarian alternatives present throughout American history is, perhaps, predictable, but still unfortunate.

My point here is not to claim that LDS church members (like myself), or Americans generally, necessarily must have some secret, ambiguous authoritarianism historically buried in our belief system. (Not that the rise of Trump hasn’t led some historians of American religion to suggest exactly that.) Rather, it is to claim that Rauch’s understanding of America’s liberal democracy and its relationship to expressions of religious faith, both as a matter of history and a matter of theory, is simplistic, and it requires papering over many ideas and actions that cannot be neatly arranged into a straightforward argument against the terrible choices which Christian churches that have embraced Donald Trump’s person and agenda have made, however worthwhile such an argument may be. 

Rauch makes a good deal of the LDS doctrine of agency, and connects that doctrine (one which, under Rauch’s reading, stipulates that, as all of God’s children have the ability to make choices, the process of choice–if not necessarily the end result–must be respected and tolerated and negotiated with) to several passages in sermons and speeches of President Dallin H. Oaks: “Oaks argues for an alignment between God’s moral constitution and Madison’s political one. Speaking for the church, he sees patience, negotiation, and compromise...as social and spiritual ends unto themselves” (p. 96). Rauch’s discussion of Oaks’s ideas is thoughtful, and his connection of them to larger LDS perspectives on matters dear to Rauch’s heart (he describes the surprise passage of the “Utah Compromise” in 2015, which provided protection against housing and employment discrimination to Utah’s LGBTQ population, as “inspirational”–p. 100) is obviously sincere. But it is difficult to square his praise of Utah Governor Spencer Cox for apologizing to LGBTQ Utahns for his past offenses in 2016, with his silence regarding Cox’s vocal support for Donald Trump and opposition to the interests of trans individuals in 2024, or his quotation of polls from 2016 and 2020, showing comparatively low levels of support for Trump among LDS Republicans, while failing to note more recent polls which show that support for Trump increased among all Mormon demographics in 2024. To be sure, these snapshots are part of a complicated story. But a complicated story about LDS history and culture–one where our appreciation of personal agency and public spiritedness is deeply entwined with our own particular, prophet-idolizing Church of Fear–is not what Rauch wanted to tell. 

In some ways the critique of Rauch made by conservative–or “post-liberal”–Mormons is thus correct here. Ralph Hancock’s pointed challenge--“how can religion ‘align’ itself with liberalism...without at some level in or some way ‘supporting’ Rauch’s liberal (that is, atheistic and ‘scientific’) understanding of truth and of humanity?”–is a hard one for those desirous to accept Rauch’s conflation of being a good Mormon and being a good (that is, non-Trumpist) modern American to deal with, and his fierce dismissal of Rauch’s key theological claim about Mormonism–“his understanding of ‘agency’ is neither a remotely adequate phenomenology of human choice nor a serious rendering of LDS belief”–is undeniably true. Unfortunately, Hancock’s conservative rebuke of Rauch’s longed (and simplistic) for rapprochement between liberal principles and Christian churches in America is also, in it’s own way, superficial. Rauch’s summation of the message of Christianity as “Don’t be afraid. Imitate Jesus. Forgive each other,” is obviously incomplete, and designed to point out an easy alignment between Jesus and his hero James Madison. But it is a substantive message, nonetheless, one grounded in a deep conviction of and commitment to Jesus’s loving, sacrificial gift of grace. To claim, as Hancock does, that the characteristics of Christianity which Rauch correctly condemns many Christian churches for having abandoned in their partisan, paranoid embrace of Donald Trump--namely humility, forgiveness, and tolerance--are somehow actually insufficient to allow for a “substantial participation as Christians in public life” is pure nonsense (or at least, nonsensical assuming one accepts such giants of liberal Christianity from Dorothy Day to William Sloane Coffin to Fred Rogers to Eugene England as Christians, which I assume Hancock would, though perhaps only with large, grudging asterisks beside their names).

To be fair to Hancock, none of those Christian leaders had to explicitly confront what he considers to the primary challenge to maintaining a substantive Christian anthropology today: namely, gay marriage and other assorted LGBTQ issues. Rauch himself frequently underscores how difficult these concerns–or indeed, his own marriage to his gay partner–are for certain Christian believers, which is again what brings him back to the LDS church, and how he believes its chastening failure in the fight against same-sex marriage made it re-dedicate itself to its supposed inner liberalism: “After its Proposition 8 debacle in 2008, the Church of Jesus Christ of Latter-day Saints has foregrounded those elements of its faith which harmonize with America’s constitutional order” (p.120). Rauch believes, in short, that even Mormonism’s illiberal elements (which he does not theologically explore) point in the direction of a Christianity at peace with pluralism and negotiation. The LDS church changed regarding plural marriage and the priesthood ban on Blacks, after all, and yet it remains a substantive, in no sense “thin” church. So why shouldn’t the rest of Christianity follow its example, and make its way through a culture supportive of gay rights respectfully too? And it is this prospect which most horrifies conservative critics of Rauch’s vision of Mormonism–in Hancock’s words, the fear that “LDS church members have been insufficiently appreciative of the positive cultural and evangelical effects of the church’s alliance with Roman Catholics and others” in opposing gay marriage; the fear that the institutional church, in its drive to “participate in the fashioning of legislative compromises” over LGBTQ issues, will not fully attend to the “trade-offs of these compromises and their long-term effects”; and the fear that Mormons will take a little too seriously the idea of “peacemaking,” which comes “perilously close to endorsing not only the fundamental dignity of all God’s children, but even the ideological self-understanding of those with whom we find that we must compromise.” These are the sorts of terrors that will keep those who find the substance of their Christian faith mostly fully defined by few passages from Paul’s Letter to the Romans and a few pages from Spencer W. Kimball’s The Miracle of Forgiveness awake at night, that’s for certain.

Surprisingly to me, I find myself thinking that President Oaks’s words provide a better guide to the complexities of maintaining a binding Christian faith in the midst of a world of individual choice, as well as a better guide to the doctrinal imperatives behind such supposedly banal principles as showing respect to and non-violent acceptance of those whom one disagrees with, than do either Rauch or his critics. Rauch celebrates Oaks’s comments from the University of Virginia in 2021, “Going Forward with Religious Freedom and Non-Discrimination,” but that speech leaves aside explicit consideration of LGBTQ issues, mentioning them only in passing, preferring to avoid any explicit reference to doctrines or ideas, and instead endorsing the view of a colleague that practical, informal, non-rule-based trade-offs often work well in addressing questions about compromise where “abstract principles sometimes cannot.” Hancock describes Oaks’s General Conference sermon “Balancing Truth and Tolerance” as a “classic address,” highlighting its martial language “We are cast as combatants in the war between truth and error. There is no middle ground.” However, he seems to fail to fully appreciate the sermon’s very next sentence: “We must stand up for truth, even while we practice tolerance and respect for beliefs and ideas different from our own and for the people who hold them” (italics added). The post-liberal rejection of Rauch’s version of Mormonism appears to insist upon a supposed distinction between respect and tolerance, between people and the beliefs they hold--Hancock in fact goes so far as to state that it simply isn’t possible for religious believers to function honestly in an environment of democratic compromise while holding to a doctrinal understanding that their opponents are “profoundly and disastrously wrong.” Yet that admittedly hard, deeply Christian thing is pretty much exactly what Oaks is calling the Mormon faithful to do. 

Rauch is too much of a secular liberal, too committed to open inquiry, to automatically assume that any one view is “profoundly and disastrously wrong.” In contrast to the paranoia of the post-liberals, Rauch’s view of Christianity–even that Christianity which he believes has been horribly twisted into an advocacy for authoritarianism–is neither dismissive nor domineering; on the contrary, he holds up the minority position, what he calls the “exilic mindset,” as something profoundly honorable (p. 135). Like Oaks, Rauch understands the virtue of those see the world in accordance with a different truth than he. (In his General Conference address, Oaks insisted that, even when believing Mormons enjoy a majority position in a community, “they should always be sensitive to the views of the minority,” something that those members of the LDS church who have become convinced that they, and their conservative Christian allies, stand alone, defending Western Civilization, against the woke and LGBTQ hordes, perhaps ought to be reminded of.) So while Rauch’s articulation of that virtue is far from philosophically complete, he has nonetheless perceived something about kindness and respect, compromise and forgiveness, something that too many Christians in America have forgotten. If this gay atheist has found a way to use Mormonism–or at least one small, perhaps insufficiently developed part of it–to call those Christians (including some members of our own tribe) back to those principles, we owe him our thanks, and ought to listen to him as well.

On Substance and Signaling, in Trumpland, Topeka, and Beyond

[This is an extensively rewritten version of an essay I wrote for Kansas newspapers last Sunday.]

In a recent substack post, my old friend Damon Linker made an obvious, but still important, observation:

One thing I think I and many others got wrong during the first Trump administration was to spend far too much time allowing ourselves to be triggered by things the president was saying—in his social media feed, at rallies, and in press conferences….[T]here’s a reason why journalists…began to joke about the importance of taking Trump seriously but not literally. That’s because he frequently communicated in a very different way than presidents usually have, often speaking from anger and in an off-the-cuff and ill-informed way. In many cases, his primary goal was to trigger the libs rather than clarify what his administration would be doing in the near future. That made his comments a distraction from what his administration was actually doing or aspiring to do.

Trump is, in many ways, a unique case (though it seems likely that such won’t be the case in the future, unfortunately). Generally speaking, our democratic political culture, in terms of how the public and the mass media internalize and reflect the ways in which representatives--both those in office and those hoping to be elected to such--seek votes and articulate priorities, has organically come to recognize that some statements from politicians are “mere” signaling, whereas others are “actually” substantive.

I put those qualifiers in quotation marks because, among the many other democratic ills which Trump’s influence on our political culture over the past decade has introduced, the recognition of even basic value distinctions like those—specifically, the idea that signaling a position to one’s political allies is, well, just that: a matter of positioning, rather than a matter of substantively working towards an actual, achievable solution--is harder than ever. Still, the assumption that some statements made by politicians need to be taken literally, even if they aren’t serious ideas, remains a hard concept to many voters to accept without resistance, because it runs directly against our inherited experience, going back through the whole history of America’s struggles to make mass democracy work, regarding what responsible government even means.

This may seem like I’m dressing up a mundane reality of democratic politics into something more weighty than it deserves to be. Because all politicians lie, right? So who cares that the lies of Trump, and an unfortunately large number of those who have followed his example, seem categorically different? Elected representatives spending their time on meaningless bills or resolutions that show their support for causes promoted by major interest groups or another donors, rather than getting down to the business of building actually substantive legislation—isn’t that just to be expected?

Maybe. But still, I care in particular about these sorts of lies, because they help to make the distinctions upon which much of the public’s ability to connect to their own elected representatives depend upon even harder, necessitating both 1) changes in the way the media does its work, such as Damon describes in his above-linked post, and 2) even more work on the part of those who the substance of legislation affects more directly.

As an example, consider the ongoing arguments over medical support for individuals who identify as transgender, since these debates are particularly rife with serious concerns that are based on matters that are not, in fact, literally true. To put it another way, these are our elected leaders taking actions that some might justify as “merely” signaling serious intent, even though there is little or no literal substance “actually” behind their intentions.

Kansas Senate President Ty Masterson recently affirmed that, with the Republican legislative majority even stronger after the 2024 elections, the leadership will bring back the push to ban, among other types of gender-affirming care, transgender surgeries sought by those Kansans who are under 18 years old. The last effort to do so ended with a veto from Governor Laura Kelly and a veto-override attempt which failed by only two votes. It’s reasonable, now that they have additional votes on their side, that the Republicans would try again. Why? Because the significance of the signal doing so would send, a signal of their “seriousness” about the threat of young people being pushed into receiving surgeries when they’re too young to know whether it’s what is best for them, hasn’t changed.

Of course, the literal reality of the situation, the actual substance of the subject of the proposed legislation, hasn’t changed either. (Note: I recognize that there are other gender-affirming concerns tied up with this, regarding the availability of puberty blockers and other medications to minors, but since Masterson himself led with the extreme issue of transitional surgeries, I’m comfortable treating that as a separate issue.)

I know many legislators, and I sympathize with how difficult their job can be, particularly those on the state and municipal level. On the one hand, they are closer to their constituents, and can more directly hear and respond to many diverse local appeals. But on the other hand, their funding, the parties which structure most of their ability to reach out to voters (and thus both do good work as well as protect their jobs), so profoundly entwined with America’s nationalized media environment, and with major interest groups and organizations that usually care little for specific local budget or policy matters, and instead are focused on creating signals that serve primarily to rile up or placate key donors and constituencies across the country. I can understand a politician coming to the reasonable conclusion that have to play the signaling game, if only to make sure they have the opportunity to also focus on the difficult, substantive matters that may actually affect those whom they represent most.

Now that’s not to say that there aren’t members of the Republican super-majority in Topeka who, for a variety of reasons, may well be sincerely concerned—maybe even horrified—by the prospect of someone under the age of 18 receiving gender modification surgery, and see banning such as a necessary action in the name of public health or morality. I’m sure more than a few fit that description. But most of them, I suspect, are actually well-read enough to recognize that they are crusading symbolically against an almost non-existent concern.

Here is where the literal substance of the matter gets serious. There’s no definitive evidence of any Kansas medical center ever performing complete gender transition surgery on a minor, and nationally the numbers for such surgeries, according to data reported by the American Medical Association, are incredibly low: out of all gender-affirming surgeries in the United States in recent years, perhaps 2 out of every 100,000 were performed on a person between the ages of 15 and 17, and 1 out of 1,000,000 were performed on a person between the ages of 13 and 15. Beneath that age, the number is zero. So, as I wrote, an almost non-existent concern.

(Another note, for the record: after an earlier version of this piece was published in Kansas newspapers, I was contacted by a concerned individual who insisted that my information was wrong; that gender re-assignment surgeries have in fact been performed on Kansans under the age of 18. The data which this individual relied upon had been collected by Do No Harm, an organization devoted to “protecting health care from the disastrous consequences of identity politics.” Their reported information on Kansas lists a total 22 “surgery patients”(though their breakdown of hospitals actually record a total of 25; I’m unsure why three are excluded); they obtained that information by looking at insurance records, focusing on claims that involved procedure codes which are used for “confirmed surgical gender transition procedures,” though they allow that those procedure codes could have been used for “surgeries related to intersex conditions” or “congenital conditions or other non-gender transition-related reasons.” I appreciate the additional information, but 1) since I don’t see any breakdown in the ages of the minors who supposedly received these surgeries, unlike the information from the AMA, and 2) since there is apparently no way to effectively distinguish between corrective and elective surgeries among these numbers, to say nothing of there being to no way to capture the individual complexities and differences present in any of these instances, and 3) since a total number of 22, or even 25, surgeries performed in a state with a total of nearly 706,000 people under the age of 18, is a number so much smaller than even the national number, that I can’t see how sticking with my judgment of this proposal being an act of signaling in regards to an essentially non-existent phenomenon can be faulted.)   

To return to my main point: when Senator Masterson says that the Republican super-majority are going to do something, we need to take him seriously. There’s a serious message they (the Republican leadership, certainly, and presumably at least some other members of the caucus) want to send regarding the disapproval the Republican majority feels toward “transgender ideology,” and connecting it to the issue of minors receiving gender-affirming surgery is a major part of the signal they intend to send. But is there an actual, literal, substantive basis for them spending time on sending this message? The answer there is, on my review of the data, no.

This pattern—when the data and the message don’t match--holds for many other issues as well. The number of transgender athletes seeking to play sports competitively in the category of their chosen gender is tiny, yet everyone seems to have a story about some transgender woman with an unfair advantage at their daughter’s high school. It’s the same for illegal immigrants, who are far more law-abiding than the rest of the population, yet every story about an undocumented resident who commits a crime will be shared over and over and over again.

On a certain level, one must simply accept this as a political reality, one that the type of lies and misinformation which our President-elect has specialized in, is only making more complicated. It is true that most people, lacking both the time and inclination to become experts regarding any given matter, depend upon—and make decisions upon—the conveying of key signals, whether involving law or morality or anything else. This is something that interest groups have long known and made use of—and which too many politicians have come to rely upon in preference to the unglamorous, necessary work of finding substantive compromises on actual, literal concerns. As for those who do have expert information on what is literally happening—often because they actually are one of the people being symbolically discussed (a person with sexual dysphoria, perhaps, or a Dreamer, or more)—the battle to call attention to the actual data, and introduce substantive arguments to push back against the signally, is never-ending. But also necessary, all the same, and never more so than today.

What the Constitution Says About Parents, Public Schools, and Students' Gender, and What it Doesn't (Yet)

[An expanded version of a piece which appeared in the Wichita Eagle and elsewhere on February 27, 2024.]

What does the law actually say when it comes to a young person’s right to privately decide what gender they identify with, and to their parents’ right to engage in or even direct the decisions they make? As usual, the law is a lot more ambiguous and contentious than many might wish.

Recently Dion Lefler--arguably the best-known journalist in Wichita, Kansas’s largest city-- picked a fight with Kansas’s Attorney General Kris Kobach--arguably the best-known politician in the whole state--over essentially this exact problem, and Kobach--who, despite his protestations, has never been retiring when it comes to defending his beliefs--picked back. Both of them drag multiple ancillary issues into their argument, but let’s focus on the legal heart of their dispute, and see what we can clarify.

Last December Kobach sent a letter to six Kansas school districts regarding policies which allegedly require teachers of students who identify as trans or non-binary to avoid revealing information about the students’ self-identification to their parents unless the students give consent. In his letter, Kobach cited multiple Supreme Court cases defending “parents' right to direct the care, upbringing, and education of their children,” and implied that he would treat these policies as a violation of those constitutional rights. (In response, two school districts publicly changed their policies, while four others continued to defend them.)

With the news of this letter became public, Lefler called Kobach a “bully,” and said that seeking to intimidate school districts into abandoning these policies was “endanger[ing] transgender kids without legal grounds.” His claim about the absence of any specific legal ground is correct: while a bill was proposed in the Kansas legislature last year that would have extended parental rights in this exact context, it lacked the support to make it out of committee, and as a result, these policies do not violate any current state law.

But Kobach responded that his job was to “protect the constitutional rights of Kansans in court, regardless of whether the Kansas Legislature has passed any statute on the subject,” and this is also correct: Kansas officials swear to uphold the U.S. Constitution as well as our state one, after all. So the real question is: what is the merit to Kobach’s conviction that the U.S. Constitution, as presumably reflected in the multiple Supreme Court cases which he cites, is on his side?

It is true that federal cases stretching back a century (and most of which rested upon substantive definitions of "privacy" as central to personal "liberty," a claim which Dodd v. Jackson Women's Health Organization, the anti-Roe v. Wade decision, may have unintentionally (?) declared invalid, interestingly enough) have established that parents have a fundamental right to make decisions about the education of their children. However, none of them are directly applicable to the present debate over names, pronouns, and privacy. Moreover, other cases insist that parents have to demonstrate a harm which “strike[s] at the heart of parental decision-making” before public schools, which are required by federal law to consider the needs of all students equally, can be forced to change policies which had been locally and legally decided upon.

In his response to Lefler, Kobach did mention one Kansas case that was directly on point—a 2022 federal district court decision which forbade Geary County’s USD 475 from enforcing a policy to not share private information regarding a student’s gender identification because it violated how the student’s teacher understood her religious faith. Why didn’t he mention that case in his original letter? Likely because he knows there are other federal district court decisions (like Massachusetts’s Foote v. Town of Ludlow) which have taken up nearly identical cases and found for the school district instead. In the end, the Supreme Court will have to decide.

So ultimately, what is being fought about is unsettled law. I suspect that Kobach, ultimately, will end up being found correct, or at least mostly correct, in his interpretation by the Supreme Court--partly because of the contemporary dominance socially conservative justices enjoy on the Court, but also partly because some of these policies can be legitimately interpreted as requiring public school teachers to purposefully hide information from or even lie to parents, and the case law supporting parental rights, stretching back long before the current make-up of the Supreme Court, will make that possibility very difficult to uphold. But in any case, for now Kobach's his letter reflects broad cultural assumptions rather than controlling constitutional principles. So round one, I think, has goes to Lefler.