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Religious Freedom is for Everyone

The Roberts Court has been criticized for wielding its power of judicial review under the Free Exercise Clause and its power to interpret statutes like the Religious Freedom Restoration Act (“RFRA”) to protect Christians perceived to be in the majority—and not just minority religions that had previously been the objects of judicial solicitude. As one news story put it, “[o]bservers question why the court needs to repeatedly intervene on behalf of a religion that has historically held plenty of political and cultural power.”

That kind of critique has been suggested in the run-up to a case, Groff v. DeJoy, which will be argued this month. There Gerald Groff, an evangelical Christian who was a postal worker, claimed that his religion required him to avoid working on the Sabbath and thus he invoked a provision of Title VII of the Civil Rights Act that requires companies to accommodate such workers unless doing so would cause “undue hardship.” Almost a half-century ago, the Court in a case that involved a Jehovah’s Witness made the statute’s protection very narrow by defining hardship to a company very broadly as anything more than de minimis cost. Groff is arguing that the past interpretation was wrong.

But this particular complaint about the Roberts Court is mistaken on many levels. First, the Court has recently intervened on behalf of non-Christian religions that are clearly a minority, even when its practitioners are convicted criminals. Second, many Christians, like those that adhere to traditional teachings on morality to which the Court has extended protection, are a minority in this country. Finally, there is no principled way to interpret the law to make the protection of religious practices depend on the level of support the practice enjoys. Indeed, the complaints about the protection of these practices themselves reflect a long-standing animus against traditional Christianity and sometimes the Western tradition of which it was a principal component.

The Problems with Minority-Majority Distinctions

The Roberts Court has protected minority, non-Christian religions under both statutes and the Constitution. In Holt v. Hobbs, the Court strictly interpreted the Religious Land Use and Institutionalized Persons Act (RLUIPA) to require an Arkansas prison to permit a Muslim prisoner to grow a six-inch beard. The Court unanimously rejected the argument that the prison had a compelling interest in forbidding beards of this length to prevent the hiding of contraband. In Murphy v. Collier, the Court unanimously stayed the execution of a Buddhist prisoner who made a timely claim for the presence of his spiritual advisor at the execution, spurning the argument of Texas that only state-employed ministers, who were all either Christian or Muslim, could be present.

It is true that the Court upheld Trump’s travel ban against majority-Muslim countries, but national security orders have traditionally received very limited scrutiny and the administration had removed the ban from three important majority-Muslim countries before the case was decided.

But a more fundamental factual mistake of the criticisms of the Roberts Court’s focus is to assume that all Christians are members of a majority religion. It is true that in the latest polls, a sixty percent majority of Americans identify as Christians. But that does not mean that they all share the same beliefs. Since the Reformation, Christians have been divided into many different sects that disagree on key beliefs. For, instance, most mainstream Protestant denominations have abandoned traditional teachings on sexuality—matters that have been key to cases like Masterpiece Cakeshop. And even within particular sects, many do not share all beliefs. The Catholic Church is riven by disagreements on many issues, including those about sexuality.

It is thus almost certainly false that a majority of Christians still believe religious claims that homosexual relations are sinful or that abortion is a taking of an innocent life. Certainly, a majority of Americans do not share these beliefs, as surveys demonstrate. Those who think that Christianity forbids work on Sunday are also a minority.

Moreover, these views are held even less among elites who have disproportionate power in politics. Thus, even if the religious clauses should give particular solicitude to minorities, people like the baker Jack Philips in Masterpiece Cakeshop and website designer Lorie Smith who wants to design marriage websites only if they reflect her religious views in another case this term—303 Creative LLC v. Elenis.

It is also both unprincipled and unworkable to interpret the Constitution or statutes to protect only minority religions. Neither the Free Exercise Clause nor any statute that provides particular solicitude for religious practice, like the Religious Freedom Restoration Act (RFRA), makes any distinction between majority and minority religions. Whatever the scope of these protections, they should be equally available to all religions regardless of their support. The Court does not make a distinction between actors with majority support and those with only minority support in other provisions in the Bill of Rights. It is true that some have argued that the Fourteenth Amendment’s guarantee of equality should distinguish between majorities and minorities, but such arguments hinge on its genesis in the Reconstruction effort to protect newly freed slaves. And limiting its scope in that way remains highly controversial.

Some moderate enlighteners worried that radicals were replacing one dogmatism with a different one that endangered social solidarity.

Nor is it practicable for the Court to gauge how much support a religion or religious practice has. The support varies from state to state. Mormons may be powerful in Utah, but not at all in New York. Even within sects, adherents have a range of attachments to various practices. Moreover, the difficulties any religion has in protecting its interests in the political process is not only a matter of how much support it has, but how much animus it generates. In the nineteenth and early twentieth centuries, Catholics were numerous but they also had numerous detractors in the most powerful precincts of society. Hence laws that especially burdened Catholics, like the Blaine Amendments, were enacted in many states. Catholics, at least of a traditional kind, may well be the object of similar elite animus today.

Finally, it is anomalous to be focused on minority status when asking whether religious groups can invoke a constitutional or statutory right. The only reason that they are coming to Court is that the political process did not provide sanctuary.

The Radical Enlightenment Roots of Christian Animus

Despite its frailty as a legal argument, the concern about using the structure of our regime to protect traditional Christianity has deep roots that go back to the radical strand of enlightenment thinking. As Jonathan Israel has shown in a series of excellent books, the Enlightenment was divided against itself. On one side was the radical Enlightenment. It was wholly opposed to Christianity, seeing it as an obscurantist religion that thwarted the building of a society based on reason and scientific inquiry. Christianity in this view was also a straitjacket that prevented people from realizing their true selves. Radical enlighteners hoped it would disappear.

On the other side was a more moderate Enlightenment. It too embraced reason, but saw possible compromise with religions, including Christianity, so long as societies also embraced religious toleration. Indeed, some of the moderate enlighteners worried that radicals were replacing one dogmatism with a different one that endangered social solidarity. They welcomed religious belief as a foundation of social order less likely to be disturbed by the latest intellectual fad—fads to which radical enlighteners were sometimes prone.

Today, we are essentially witnessing the same debate with a new twist or two. Left-liberals, many of whom are intellectual descendants of the radical enlighteners, do not want the rights of religious freedom to prop up Christian practice whose decline they welcome. But they do not object to protecting religions like Buddhism and Islam for two reasons. First, these religions are not serious competitors in the West to radical enlightenment thought. Second, the radical enlightenment has taken an anti-Western turn and these religions are welcomed as another source of opposition. The anti-Western current was a minority one in the original radical enlightenment, but it was present in some strands, such as in the celebration of the noble savage, and has grown stronger today.

In contrast, the moderate enlighteners today are those who again seek compromise between religion and the latest enlightenment moves. The state may recognize new experiments in living and sexuality, like same-sex marriage, but there should be tolerance for those who do not want to endorse these practices or want to live according to the values of traditional Christianity and Judaism.

The general advantage that today’s moderate enlighteners have is that our legal traditions reflect the moderate Enlightenment. To be sure, Thomas Paine and, in some of his moods, Thomas Jefferson were radical enlighteners. But they did not have much influence on the United States Constitution. They welcomed the French Revolution—an example par excellence of the radical enlightenment—but most of the Founders quickly recoiled from it, preferring America’s more moderate version. That moderate version has continued throughout much of American history. The Religious Freedom Restoration Act, for instance, which protects all religions equally from federal government burdens, passed Congress almost unanimously just thirty years ago.

The radical Enlightenment and the French Revolution it helped create were in turn responsible for the Counter-Enlightenment. Its greatest thinkers, like Joseph de Maistre, believed no compromise between enlightenment and religion was possible as the dynamism of the Enlightenment would ultimately erode support for religion and tradition. Toleration was inevitably a one-way street to religious decline.

Not surprisingly, given the renewed strength of radical enlighteners among academics and most other intellectuals, we are witnessing our own Counter-Enlightenment in America in the form of thinkers like Adrian Vermeule and Patrick Deenen who have renewed de Maistre’s argument that no compromise between religion and liberalism is possible.

The rise of the radical Enlightenment and the Counter-Enlightenment in our time is yet another reason that the current Supreme Court is so important. The Court interjects in our polarized society the voice of the moderate enlightenment as reflected in past statutes like RFRA and in the Constitution itself.