More thoughts about Religious Freedom
Exploring "sincerely held religious beliefs"
This is the piece that was planned for Friday. I have long had an interest in religious jurisprudence. One of the first posts on this site was about the praying football coach in Bremerton, Washington (Kennedy v Bremerton). That decision was about religious establishment vs. religious expression. The school district was concerned that Kennedy’s prayers constituted government support of a particular religion while Justice Gorsuch, who wrote the majority opinion, argued it was about protecting Kennedy’s religious freedom.
Several things came together last week to renew my questions about freedom of religion and its limits. On Tuesday, I watched an appeal by the Religious Exemption Accountability Project before a Ninth Circuit Court of Appeals panel. This group had sued the Office of Civil Rights in the Department of Education over its practice of granting religious exemptions to Christian universities that have religious objections to LGBTQ+ populations.
Here’s what I wrote on Facebook after watching the hearing.
Several interesting dynamics. 1) the original case was decided using Lemon rules on religious establishment but the Kennedy v Bremerton case changed those rules. Justices wondered why plaintiffs didn't shift their argument. Plaintiffs attorney argued that they weren't asked to (but could have). 2) Using the "history and tradition" argument required by Kennedy would require a showing that the Congress meant to ban SOGI discrimination back in 1972, a seemingly impossible hurdle a mere three years after Stonewall. 3) There is still a question as to precisely how the Office of Civil Rights of the DOE evaluates religious exemption claims. If the case is remanded back to district court, that will be important. 4) There was an interesting discussion about students' ability to know their school had filed an OCR request based on a case of a student who enrolled w/o knowing, began a transition process, and then was expelled. 5) The Alliance Defending Freedom attorney was quite aggressive. 6) The CCCU attorney was a very nice gentleman. 6) I'd love to see the case remanded and reevaluated under Kennedy but the most likely outcome is a ruling for the defendants. 7) Even if that happens, I would expect a new lawsuit to be filed before long.
I was particularly interested in how the defendants and their amici explained the “religious beliefs” that they thought they were protecting. What is it about “traditional marriage” that makes it a religious belief? That answer never came but if the case is remanded to district court or a new case filed, I fully expect it.
Wednesday morning, Pete Enns wrote his SubStack on “What Does the Bible Say About Life Beginning at Conception?”. After exploring the limitations of Psalm 139 (“knit me together in my mother’s womb”), he ends by considering how we should be using the Bible on contemporary issues:
Responsible readers of the Bible need to be careful not to expect the Bible to speak too directly to our current questions that dominate our thinking. The Bible may not be the answer book– just flip to the right page and there is an answer. In my opinion, Psalm 139 cannot settle our debates. It wasn’t written with our questions in mind.
Whatever answer one might give to the abortion issue, it has to be handled on levels larger than individual passages. It involves the engagement of larger biblical themes, an embrace of the ancient setting of biblical passages, and the careful discernment of our own context.
The abortion “debate” should really be a conversation that tries to bring together the two horizons of scripture and our own moment in history. That is how Christian thinking works. It always has.
The same day on X, my friend Dan Silliman shared an aggregation on The Gothamist about New York police officers who didn’t want to shave their beards (full story behind New York Daily News paywall). The part about the policemen reads as follows:
Speaking of NYPD officers, some of them are using the Bible to justify their beards after a new rule banning facial hair, except for religious or medical reasons, went into effect. “Leviticus, bro,” said an officer in Brooklyn. “I’m Catholic.”
“Leviticus, bro” is exactly the kind of proof texting Pete Enns was arguing against. As such, I seriously doubt that the NYPD higher ups will be persuaded or that they could find a court to support them (unless they can get the case to Gorsuch!).
When I responded to Dan that I needed to rant about religious exemptions, he directed me to Charles McCrary’s Sincerely Held: American Secularism and Its Believers (currently $0.75 on Kindle!). I got the ebook from my local library and spent Thursday skimming it.
McCrary explores the origins of the idea of “sincerely held religious beliefs” which trace back to the Ballard decision in 1944. This was a fraud case where followers of the “I Am” movement were bilked out of thousands of dollars. The defendants argued that they really believed the things they were teaching and the Supreme Court couldn’t or wouldn’t find justification for evaluating whether the Ballards’s beliefs were True. McCrary argues that the secular framework of the judicial system leaves them incapable of answering these questions. Referring to the Hobby Lobby v. Burwell case, he observes:
Whether the content of these beliefs is true in not relevant — contra many commentators who pointed out Hobby Lobby’s apparent misunderstandings of biology and reproduction — since these cases are still subject to the sincerity test. There is something about religious belief that removes it from the realm of facticity (289)
Over the weekend, I started reading Religious Liberty in a Polarized Age by Thomas Berg (a long time social media connection and fellow Eerdmans author). I’m looking forward to reading the book and have only finished the introduction.
Berg opens the book by contrasting two Supreme Court decisions: Trump v. Hawaii and Masterpiece Cakeshop v. Colorado Civil Rights Commission. The former was the final iteration of Trump’s “Muslim ban” and SCOTUS overlooked the various negative comments the president had tweeted about Muslims. The latter was the Colorado baker who refused to bake a cake for a gay couple. Two Civil Rights Commissioners made disparaging comments about the baker’s religion. So, he asks, why were Trump’s comments treated differently? He argues instead for a more expansive view of religious freedom. He writes:
For religious-freedom disputes to fuel polarization is sad, and it’s incongruous. Religious freedom (or “religious liberty”, an equivalent term) is meant not to aggravate, but rather to calm, conflict among deeply held views. Like other civil liberties, it sets ground rules that allow people of differing characteristics to coexist. Religious freedom is particular calms conflicts by giving people of differing views protection against threats they feel to their most basic beliefs and identity. It makes room, within reason, for all persons to express and live consistently with their deepest views. (6)
I’ve only read the introduction, so I don’t want to speak for Berg. But it seems to me that one step forward would be for people to be willing to explain their religious beliefs. Not to cite a favorite Bible verse and thereby shut down conversation (which the Court seems willing to allow) but to articulate to others their “sincerely held religious beliefs”.
Ryan Burge explored the relationship between belief in God and educational level in his SubStack this morning. He analyzed this question from the General Social Survey:
Please look at this card and tell me which statement comes closest to expressing what you believe about God.
I don’t believe in God
I don’t know if God exist and I don’t believe there is any way to find out
I don’t believe in a personal God but I do believe in a Higher Power of some kind
I find myself believing in God some of the time, but not at others
While I have doubts, I feel that I do believe in God
I know God really exists and I have no doubts about it.
He first explored the atheists who selected the first option. He then added in the agnostics who picked the second. Finally, he contrasted those two groups over time with those without doubts.
Because I was already thinking of this post, my attention went to the difference between the last three options. He does show all of the changes over time in his graphs. But there’s a big difference between option 4 and option 6. I’ve written before about my wish that survey questions actually explored the content of religious belief in a more nuanced way.
If religious folks have “sincerely held religious beliefs” that are formative to their identity, it’s not too much to ask for them to explain how those beliefs apply to a particular situation. Whether it’s exemption from nondiscrimination law or limiting the rights of some Muslim citizens or even religious protections for Catholics to have beards, living in pluralistic society requires an articulation of those beliefs in ways that are cognizable to those outside the particular religious tradition.
I’m looking forward to the rest of Berg’s book. I’m sure it will show up here in the future.
Excellent piece. Just one comment: As a believing Christian I don’t just think “it’s not too much to ask for them to explain how those beliefs apply to a particular situation.” I believe I have a duty to share how and why my beliefs apply.
Have you read White Christian Privilege: The Illusion of Religious Equality in America by Khyati Joshi. She has a chapter on religious freedom court cases. She narrates the progress of religious freedom very differently from someone like David French who says regularly that there has been a near straight line toward more religious freedom from the mid 20th century.
One of her main points is that even the concept of religious freedom might have a bias toward a Christian (and Protestant) view of what religion is. And she suggests that the 20th century precedents that have narrowly defined what religion is, may not be harming Christians in the long term as Christianity is less dominant and less understood by most people.
She is not a lawyer…but I thought that getting her different narrative around religious freedom was a helpful counter narrative.