Seeking Religious Freedom Win-Win Solutions
Freedom of religion and freedom from religion are under systematic attack. We seek win-win solutions. Are there any?
Welcome Back to Win-Win Democracy
I hope everyone had a wonderful holiday season and I wish you a Happy New Year.
Last year was perilous for American democracy and the rule of law. The reactionary Supreme Court justices’ full-throated adoption of originalism was at the forefront of taking back hard-won, longstanding rights related to religious freedom: freedom from forced birth; freedom from government-coerced prayer; and, if Justice Thomas has his way, freedom to choose if and when to procreate, freedom to choose whether or not to engage in private, consensual sexual acts, and the recently-gained freedom to marry whom one chooses1.
In the last four issues of the newsletter (Religious Freedom, Weaponizing Religious Freedom, The Crumbling Wall of Separation Between Church and State, and The Crusaders) we’ve been discussing the systematic attack on religious freedom that has been underway for decades. Ironically, the Crusaders have successfully reframed freedom of religion to mean their freedom to impose their religious beliefs on the rest of us.
Achieving win-win solutions to such fundamental conflicts seems near impossible. In this issue of the newsletter, I want to explore where I do and where I don’t see opportunities for win-win solutions.
I see three categories of breaches of Jefferson’s wall of separation of church and state:
Breaches Jefferson’s wall, but not worth fighting about
Breaches Jefferson’s wall, people’s lives are being affected in important ways, so we must remedy the breach
Artificial breaches, which Crusaders create for political gain by inflaming the public
We’ll look at some examples of all three categories.
Breaches Not Worth Fighting About
Our Constitution’s Establishment Clause seemingly prohibits government from establishing religion. In practice, this is a matter of degree.
Many states and localities have laws that prohibit certain business transactions on Sunday, the Christian Sabbath. Christmas is a national holiday with government offices and services closed. Religious organizations are granted favorable tax treatment and clergy can exclude from their income the value of parsonage. Senior political leaders attend “prayer breakfasts” and there is an Episcopal church called the Washington National Cathedral, which considers itself “a sacred space where the country gathers during moments of national significance.”
In our town, on Sundays all parking is free and no-parking restrictions on the main street near a big church don’t apply. Municipalities across the country spend public funds to decorate for Christmas, and the White House lawn hosts both a decorated Christmas tree and an Easter-egg hunt.
While I’m a staunch supporter of a strong, high, wall of separation of church and state, and these sorts of things rankle me, they’re not hills I’d want to die on.
Instead, I view them as minor benefits that some people get by virtue of being in the majority: Since a lot of people are Christian, governments provide minor services for them and help them celebrate Christian holidays, much the same way that governments provide services to the many people who like sports.
Two dangers lurk:
Normalization: Celebrations that originated as Christian become normalized into American cultural festivities and events. People say “the holidays” instead of “Christmas,” which some Christians feel diminishes the religious nature of Christmas. I get this: when Christmas becomes more about pretty lights, Santa, and shopping for gifts than about the birth of Jesus, Christianity, the religion, is diminished.
This normalization has occurred so much that various courts have ruled, absurdly, in my opinion, that displays like crèches and crosses, and mottos like “In God We Trust,” are secular.
Slippery slope: Once Christians become accustomed to public support of Christmas decorations and tree-lighting ceremonies, it is easy for them to take the next step and demand public support for overtly Christian religious symbols and practices, or to think that America is a Christian nation.
Strict separation of church and state is simplest because the boundaries between the two would be clear. To illustrate, consider the ludicrous situation we are in about crèches displayed on public land or funded by public money.
The Supreme Court ruled in the 1984 Lynch v. Donnelly decision that a standalone crèche displayed on public property or funded by the public is unconstitutional but a crèche as an element of a larger display that includes secular symbols like Santa and his reindeer and Christmas trees is acceptable. This is known, sarcastically, as the reindeer rule. In another case, County of Allegheny v. ACLU (1989), the Supreme Court ruled that a crèche displayed in a courthouse along with some poinsettias and a few small trees with red bows was unconstitutional because its location in the courthouse gave the unmistakable impression of government endorsement of Christianity. Short, readable reviews of the constitutional issues are available here and here.
Such subtleties, however, escape most of us. It would be far better to simply tell people who want to display religious symbols to do so on private property with private funds.
Win-Win Not Likely
The obvious win-win is:
Governments continue to help people celebrate Christian holidays with trees, egg hunts, and other festive decorations and events, even using public lands and de minimus public funds.
Governments prohibit fundamentally-religious Christian (or any religion) symbols or ceremonies on public land or using public funds.
Yes, there still is some judgement required. But I think that most people would agree that a crèche is a symbol of the fundamental beliefs of Christians celebrating Christmas, while a decorated tree and scenes of Santa and his reindeer are folkloric celebration.
Unfortunately, I can’t imagine getting to this win-win because those who insist on displaying fundamentally-religious Christian symbols on public land must want to do so as a way to assert government endorsement of Christianity. Otherwise, why wouldn’t they be happy displaying such symbols on the grounds of prominently-located churches?
Using the Power of Government to Enforce Religious Ends
Suppose my religion says that women should be subservient to men and that, in the name of my religious freedom, the government enforces my right to subjugate women. In theocracies like Iran, Afghanistan, and Saudi Arabia, this is what happens. In the United States, we no longer consider women chattel and we no longer give husbands and fathers the legal right to control all aspects of a woman’s life. That’s progress.
Some people nevertheless seek to use the power of government to control important aspects of other people’s lives, usually justified by appeal to religious precepts.
The argument goes roughly like this: My faith dictates that “x” is wrong and when “x” occurs I’m obligated to try to stop it; if the government prevents me from stopping “x,” it is violating my freedom of religion; my freedom of religion trumps other people’s right to not suffer the harm of stopping “x.'‘
Here are a few egregious examples of this argument:
Some people’s religious beliefs compel them to want to restrict various aspects of reproductive health, ranging from use of contraception to termination of pregnancy.
Some people’s religious beliefs compel them to want to deny the benefits of marriage to any couple that is not a traditional “one man, one woman” couple and to deny non-traditional couples the right to foster or adopt children.
Some people’s religious beliefs compel them to want to deny people who gender identify outside traditional gender roles basic employment and civil rights protections.
Some people’s religious beliefs compel them to want to deny medical scientists access to new lines of stem cells that may yield major advances in the treatment of many diseases.
Some people’s religious beliefs compel them to want to deny educators the ability to each students accepted scientific knowledge.
To the considerable extent that these people have been successful, they harm women who are forced to give birth against their wishes or even against medical advice, sometimes putting women's lives at risk; they harm couples trying to raise a family, and children who need foster or adoptive parents; they harm people seeking a job but facing discrimination; they harm all of us by slowing medical advances; and they deny our children the opportunity to learn how science works to understand and improve our world.
I have a bit of sympathy for those who act this way driven by deep religious faith and the sincere belief that they are acting on their god’s command2. I say “their god’s command” to emphasize that various religious traditions have both different notions of God and different interpretations of what God commands. This is true even across major Christian denominations, within major Christian denominations, and, even more-so, across non-Christian religions.
For example, the Catholic Church opposes abortion, giving primacy to the life of the fetus; American Baptists recognize a spectrum of beliefs about abortion within their community; the Episcopal church has long supported the right of women to choose abortion, but even so there is varying belief about its morality; Jewish tradition gives primacy to the mother’s health and requires abortion to save the mother’s life, with various denominations of Judaism having different views about the acceptability of abortion in other situations.
Even if one were to accept that religion should have a direct role in setting our laws,3 it is clear that religion speaks with many, often conflicting, voices. When Crusaders seek to enshrine their religious beliefs in law, they are both harming people directly and trampling on the religious freedom of those whose religions have different views.
I see no win-win possibility here. We must use all of the tools of our democracy to fight the harm that religious zealots are trying to inflict on the rest of us in the name of their beliefs.
Authority Figures in Coercive Settings
We saw previously in the praying coach case (Kennedy v. Bremerton) that Crusaders are succeeding in allowing authority figures employed by governments, like teachers and coaches, to coerce religiosity in young people. We see similar behavior with legislatures and town councils opening with prayer in situations where not participating could have adverse effect on one’s business with those bodies.
Again, I see no win-win in such situations. We must oppose such coercive behavior on behalf of religion.
Controlling Public Funds to Promote Religious Beliefs
Control of public funds is being harnessed to promote religion and enforce religious beliefs. There are two approaches:
Spend public money to promote religion
Restrict the use of public money on activities that the Crusaders oppose
The Crusaders have used both approaches.
Government money can be spent in many ways to promote religion. While I’m concerned about all of them, school vouchers are the most insidious because the Crusaders’ framing, which doesn’t explicitly mention religion, is compelling to many people:
Public schools are failing our kids
Private schools cost less and do a better job of educating our kids, so take money out of the public schools and give it to parents in the form of vouchers that they can use to send their kids to private schools
School vouchers make it possible for economically-disadvantaged kids to get a quality private school education
What’s not to like?
There are many drawbacks including that in most states there’s little or no accountability for what is taught and the ability of economically-disadvantaged families to send their kids to private schools is mostly a mirage. I refer you to the National Coalition for Public Schools fact sheet on vouchers for a concise but comprehensive overview. Here, I just focus on how vouchers promote religion.
How do vouchers promote religion?
In many states, religious schools get most of the funding for private schools. In North Carolina, where I live, vouchers are called Opportunity Scholarships. A Duke University study of school vouchers in North Carolina through 2020 found that 92% of the vouchers have been used to pay tuition at religious schools.
Since the program has greatly expanded since 2020, I looked at data for the 2022-2023 year: 539 private schools received voucher money; you can see the list of schools and funding amounts here. Of the 539 schools, 278 had the words Christian, Baptist, Catholic, Jewish, Temple, Gospel, Islamic, Adventist, Country Day, and Trinity in their names. Skimming the list sorted by amount received, there are many other schools that are clearly religious schools. It is also striking that the top funding recipients are religious schools, by far, although I did not do a formal analysis.
These religious schools are free to discriminate against kids and teachers that their religions don’t like (LGBTQ, for example), they can teach whatever curriculum they like, including religiously-inspired but incorrect interpretations of science and history. Indeed, the Duke study concluded that “[m]ore than three-quarters of those schools use a biblically-based curriculum presenting concepts that directly contradict the state’s educational standards.”
Lest you think that this is unique to North Carolina, the Indiana Coalition for Pubic Education reports that as of 2019, 99.4% of Indiana’s voucher money went to religious schools, and there are rampant violations of the civil rights of both teachers and students in these schools.
Is There a Win-Win?
Vouchers harm public schools regardless of how they are formulated. But the issues related to government establishment of religion could be somewhat mitigated by requiring that all schools receiving voucher funding meet the same (secular) standards that public schools must meet and provide equivalent outcomes for their students.
It is hard to imagine religious schools accepting such constraints, arguing that such constraints would be undue government intrusion in religion.
I don’t see a win-win solution and believe that this is a battle that must be fought to preserve public education.
Spending federal funds on abortion, biomedical research related to abortion, and some aspects of family planning, both at home and abroad, is restricted by many laws (and related policies), which have been passed in 50 years since Roe v. Wade.
In 2022, the Kaiser Family Foundation published a two-page summary of the laws and policies that affect US funding of international family planning and reproductive health. It is worth reading. For our purposes, however, it is enough to understand that these laws exist and have substantial impact on the ways that we assist developing nations with family planning and reproductive health.
At home, the Hyde amendment, passed soon after Roe v. Wade, blocked federal funds from being used to pay for abortion outside of exceptions for rape, incest, or danger to the mother’s life. Even before Roe v. Wade was overturned last year, the Hyde amendment meant that women insured by Medicaid and other federal programs (like the military’s TRICARE) often couldn’t afford access to abortion.
Since Medicaid is a joint federal-state program, 16 states provide their own funding to provide abortion coverage to women on Medicaid. The Kaiser Family Foundation’s analysis of the Hyde Amendment’s impact concluded that 56% of reproductive-age women on Medicaid live in states that follow the Hyde Amendment’s restrictions.
Before the Crusaders were able to overthrow Roe v. Wade, restricting federal spending proved a powerful way for them to deny rights at least to poor women.
Embryonic stem cells (i.e., stem cells taken from embryos) show great potential to be used to create therapies for many diseases. Originally, the principle source of embryonic stem cells was from aborted embryos. In 2001, President Bush implemented a policy to restrict federally-funded research involving new lines of embryonic stem cells, based on opposition to using aborted embryos. Currently, embryonic stem cells are obtained from leftover blastocysts4 from in vitro fertilization treatments, so the controversy over using aborted embryos is mostly moot5. In 2021, the National Institutes of Health funded more than $2 billion in stem cell research — stem cells are that important in medical research.
This example illustrates how restrictions on funding, based on some people’s religious beliefs, can impact medical research, affecting us all.
Is There a Win-Win?
Again, it is difficult to see a win-win on these sorts of restrictions on federal spending. The Crusaders see appropriations bills as a good opportunity to impose their religious beliefs on the rest of us, even when the benefits to society of the spending could be very large. This is another battle we must fight.
Finally, let’s look at an example of a non-existent breach of Jefferson’s wall that Crusaders are creating artificially for political gain.
In the words of Colorado’s attorney general, Colorado’s public accommodations law “requires public businesses to serve all customers and prohibit denials of service because of a customer’s religion, sexual orientation, race, sex, disability, or other characteristics protected under the law.”
Put simply, the law says that if you open a public business you can’t say “no” based on protected categories. So, for example, an architectural design firm can say “no, we won’t take your business” because “we don’t do the kinds of designs that you want,” but it can’t say “no” because you’re Black, or gay, or female, or Christian.
In Masterpiece Cakeshop, LLC v. Colorado Civil Rights Commission, Jack Phillips, the owner of the cake shop said “no” to Charlie Craig and David Mullins, a married gay couple who wanted a cake to celebrate their wedding. (My description here is based on an article by Erwin Chemerinsky6.) Craig and Mullins filed a discrimination complaint based on Colorado’s public accommodations law. The Colorado Civil Rights Commission found that Phillips violated the law.
Alliance Defending Freedom (ADF) — remember them? — represented Phillips and argued, in their own words, “that the government cannot force artists to use their expressive talents to celebrate events or express ideas that they do not support.” ADF continues: “In a 7-2 ruling, the Court found that the government was wrong to punish Jack for peacefully living out his beliefs in the marketplace.”
And that’s how it was portrayed in the media: Jack Phillips refused to bake a cake that went against his religious beliefs. Yay: Victory for an individual’s freedom of religion.
But that’s not what the Court really ruled: Instead the Court ruled that the Colorado Commission displayed “discriminatory animus” to religion7. In other words, they left open the question of whether Colorado's law violates the First Amendment.
Indeed, the facts, agreed by the parties, indicate that there was no discussion between the parties about the cake's design or content8. Phillips rejected their business simply because they were gay, not because they wanted some message on the cake with which he didn't agree.
Because they recognize that the issue they’re trying to create in the public’s mind was not really decided by Masterpiece, ADF is back in front of SCOTUS with a new client, another Colorado company called 303 Creative, which designs websites. They’ve never done wedding websites, but want to expand the business into wedding websites. The company wants to be able turn away gay couples and filed suit to gain assurance that it could do so once it entered the wedding website business. This case was argued in December with the result pending.
Again the question being asked is whether the Colorado law violates the Free Speech Clause of the First Amendment. In an opinion piece in The NY Times,
David Cole, national legal director of the ACLU, argues that this is the wrong question:
“[E]ven businesses open to the public are free to define the content of what they sell. A Christmas store can sell only Christmas items without running afoul of public accommodations laws. It need not stock Hanukkah candles or Kwanzaa cards. But it cannot put a sign on its doors saying, “We don’t serve Jews” or “No Blacks allowed.”
303 Creative argues that it is not turning away same-sex couples because they are gay, but because it objects to the message that making a wedding website for them would convey. The company has, however, asked the court to declare its right to refuse to make any website for a same-sex couple’s wedding, even if its content is identical to one it would design for a straight couple. According to this line of argument, the company could refuse a gay couple even a site that merely announced the time and location of the wedding and recommended places to stay.”
We’ll see what the Court has to say. But certainly, 303 Creative already has the ability to refuse to design websites with content with which they disagree. But as a public business, they’re not free to hang out a sign (perhaps virtual) declining to serve Jews or Blacks or gays or disabled people, etc. Alternatively, Lorie Smith (303’s owner) could operate as an individual artist instead of a public business and wouldn’t be subject to any restrictions on who she serves.
Is There a Win-Win?
Sorta. There really isn’t an issue here. Under no circumstance is Smith being forced to produce “expression” that violates her religious beliefs. The case is being falsely framed that way because the Crusaders are using the case to further their efforts to impose their religious beliefs on the rest of us.
The win-win would be for the Court to conclude exactly that. Everyone not try
If you’re like me, this newsletter issue leaves me unsettled and unsatisfied. With minor exception, I have not been able to define win-win solutions to the most important problems of religious freedom. It is going to be a continued struggle, with the Supreme Court likely the most significant player.
The majority of the Court’s justices are reactionaries who apply originalism to uphold tradition and retract rights. This is widely recognized and there is much interesting discussion about ways to reform the Court.
Some of those ideas will be the topic of the next issue of the newsletter.
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In his concurring opinion in Dobbs v. Jackson Women’s Health Organization, Justice Thomas says (page 3) “… in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”
I have only contempt for the politicians and supposed religious leaders whose behaviors regularly demonstrate their personal disdain for religious or moral principles, yet who seek to use these issues as part of political “culture wars.”
I do not accept that religion has a direct role in setting our laws. But, realistically, there are enough religious people in the United States that religion influences the opinions of some of the electorate and thus indirectly influences setting our laws.
A blastocyst is a rapidly dividing ball of 200-300 cells at five or six days after an egg is fertilized.
However, efforts in some states to declare an embryo a person at fertilization would effectively outlaw in vitro fertilization and perhaps embryonic stem cells.
Chemerinsky is Dean and Distinguished Professor of Law at the University of California Berkeley School of Law. The article was published in the American Bar Association’s Human Rights Magazine.
See Chemerinsky’s article for his explanation of just how hypocritical this ruling was in the context of President Trump’s “Muslim ban”.
See page 61 in Andrew Seidel’s previously-cited book American Crusade.