Is Winning Some Losing All? The Paradox of Religious Freedom

Close on the heels of the 2014 Hobby Lobby and Wheaton College cases, the Supreme Court’s recent Masterpiece Cakeshop decision is only the most recent ruling to leave the politics of sexuality and religious freedom in an uncomfortable place.  As Indiana University professor Winnifred Fallers Sullivan wrote a couple of weeks ago:

“Over the last few decades, religion in law has been reduced to the attitudes of sincere persons described as devout about sex. By refusing to talk about religion beyond sex, law affirms the avoidance of serious public conversation about what God requires.”

But Sullivan is not blaming this predicament only on legal arguments brought by Evangelicals and conservative Catholics.  As she wrote in The Immanent Frame in 2014:

“The challenge…for American liberals is to explain how they can both be in favor of religious freedom for all and at the same time deny that freedom to Hobby Lobby and Wheaton College.”

Or, we might add, to Masterpiece Cakeshop owner Jack Phillips, who cited religious belief in his refusal to bake a wedding cake for Dave Mullins and Charlie Craig.

Sullivan’s 2014 piece paints a brutally honest picture of the rock and the hard place between which LGBTQ Catholics are so often stuck:  defending the civil rights of LGBTQ persons against discriminatory religious freedom claims, and yet realizing that the same logic could theoretically be turned against religious practices and beliefs that they hold dear.

This conundrum may be only the tip of the iceberg.  Northwestern University professor of Political Science and Religious Studies Elizabeth Shakman Hurd reflected on the wider implications of religious freedom rulings in her recent article in US Catholic:

“Privileging religion as an object of governance means that whatever the authorities designate as religion assumes special political significance….Judges are called on to determine what counts as a religion and to distinguish between orthodox and unorthodox forms of it….[But] whose understandings of which religions are protected? Whose understandings of which freedoms?”

Recently Hurd and I sat down to think about what giving courts the power to define religion might imply for recent religious freedom cases in the US.  What happens when courts get into the business of “empower[ing] some religions over others” and privileging religion over non-religion?

Maybe, as Sullivan has argued, a democratic society can’t live without the idea of religion, even if we need to update its definition from time to time.  Or maybe, as Hurd suggests, defining religion legally has such a tendency to “[politicize] religion and [deepen] the lines of division it is meant to tame or transcend”—that we need to take a completely different approach.

In moments of frustration Hurd imagines rewriting the First Amendment to the Constitution, eliminating the need to give a legal definition of religion by proceeding immediately to freedom of speech.  But short of such unlikely and radical surgery, she wonders, what would happen if we gave the courts a breather and applied social and economic pressures to businesses that discriminate under the banner of free exercise of religion?  It’s just possible that cultural standards of civility would begin to underwrite more just behavior based in human rights and dignity, pure and simple—religious or not, LGBTQ or straight—without involving the courts as often.

To be sure, the law is a crucial protector of freedom, and the court system is a necessary tool of justice. But, says Hurd, in the same way that we are learning to make antibiotics our last, not first, line of attack against illness, we may want to experiment with employing the courts as last-resort rather than first-round means of achieving justice.  The rush to take all incivility to court short circuits the rich, complex social interactions that make up the fabric of social life.  The law is meant to protect that fabric, not constitute it.

That strategy also would ease the intense pressure on the religious dimensions of First Amendment freedoms, giving us time to experiment with, and think more carefully about, legal definitions of both religion and religious freedom.  For Christians at least, it’s also nicely in line with scripture:  I Corinthians 6:1 reminds us to begin by taking our complaints to our religious communities rather than to court.

Americans are unlikely to remove religion from the First Amendment’s explicit protections, at least in the short term.  We also cannot change the confusing and contradictory recent Supreme Court rulings.  But we do have some control over how we deal with injustice and incivility, whether and when such cases ever make it to court dockets, and how they are argued.

Hurd believes that we also have some choice over which cases capture the public eye and drive the news cycle. For example, are we spending proportionately more resources and court time on wedding cakes than on the federal government’s forcible separation of vulnerable children from their families at the U.S. border? To what issues should we—and the courts—devote our limited attention and resources at this critical moment in U.S. and global history?

Hurd’s thoughtful essay reminds us that a more holistic approach might help us to cultivate a more civil society and produce more practical judgments.  The courts are necessary sites of redress.  But we need to ask if we ourselves have done all of the face-to-face and community-building work that is needed to create a strong foundation for their decisions.

The “both/and” work of community building and, when necessary, legal redress is a wise path, she believes.  Would that conservatives and liberals would pursue it with equal energy.

Thanks to Elizabeth Shakman Hurd for conversation and editing.

—Cristina Traina, Northwestern University, Jue 25, 2018