January 9, 2017

Liberalism and Religious Liberty in the Trump Era



Under the presidency of Donald Trump, it seems likely that Christians will enjoy greater religious liberty, while Muslims and others may have some of their religious liberty taken away.

President-elect Trump has suggested a total ban on Muslim travel into the United States, and has entertained the possibility of a Muslim registry. This may all have been election hyperbole. But when asked about these ideas in light of the deadly truck track attack on a Berlin Christmas market, Trump said, “You know my plans. All along, I’ve been proven to be right, 100 percent correct,” which does not suggest a softening of his alarming position.

That the election may have such an extraordinary effect on religious freedom in the United States—that President-elect Trump really might pose a threat to foundational American principles of religious liberty and tolerance—underscores the urgent need to articulate and defend those principles anew.

In the spirit of that project, I will outline what I think is a consistent and morally compelling liberal approach to religious liberty, drawing on my work on the subject in Liberal Politics and Public Faith and elsewhere.  

The simple principle of religious liberty was articulated by the political philosopher John Rawls: we should defend the most extensive set of religious liberties that is compatible with the same liberty for all. That is to say, we should allow one another as much religious freedom as we can equally give to everyone, regardless of her religion or her rejection of it. This means that religious liberty is the default and restrictions on religious liberty require a sound justification.[1]

For Rawls, as with most other liberals, the only restrictions on religious liberty that are permitted are those needed to protect the liberties of others. That’s why there’s no religious liberty to sacrifice someone to your deity, or to establish your religion as the state religion. These acts restrict the liberty of others.

The odds are good that you agree with the Rawlsian principle in its general form. But its implications are various and controversial. To illustrate the complications, I’ll focus on the religious liberties of three groups: prisoners, Muslims, and Christians.

Prisoners

Everybody forgets the imprisoned. I write on religious liberty, but the religious freedom of prisoners wasn’t really on my radar until a few years ago. The primary issue raised by prisoners is their liberty to abide by their faiths’ conventions of appearance, diet, and ritual practice while in prison. For instance, many Muslims wish to wear lengthy beards, but they are often prevented from doing so based on the concern that they might use their beards to conceal weapons. In other cases, say, during a lockdown, religious inmates are often denied meals that comport with their dietary restrictions.

Sometimes the problems are even more basic. In 2012, a Jewish man was transferred to three different Illinois correctional facilities. His religious affiliation was wrongly listed as Protestant, and he had no way to get the error corrected. He was not able to have a vegetarian diet and his Jewish Bible was confiscated.

(The Religion Clause blog keeps a record of many prisoner free exercise cases. Subscribe to the blog and you’ll get a sense for what they endure on a regular basis.)

While a free society has an interest in protecting its people from harm, it is extremely hard to justify our present system of imprisonment on generic liberal grounds. There is little evidence that our extremely punitive justice system is necessary to protect the basic liberties of most individuals. Many countries better protect their people with a lot less incarceration.

Even if such restrictions were justified, it is hard to find a legitimate reason to restrict the religious liberty of those who have basically been abandoned by society to a fate that is, for many, worse than death. If people wish to grow beards, eat consistently with their faith, retain copies of their sacred texts, engage in fasts, and so on, the liberal principle is clear: leave them alone, for God’s sake.

Most of America’s incarcerated population is held in state prisons, under state control, but the Department of Justice and Federal Bureau of Prisons set the tone for acceptable treatment of prisoners. The Obama administration earned a good reputation for honoring the religious freedoms of inmates. In light of his rhetoric, it will be surprising if Trump demonstrates the same regard for the religious rights of non-Christian prisoners, though it’s hard to say how his administration will affect prisoners on balance.

Those who worry about religious liberty, on both the left and right, would do well to pay attention to the religious freedom of prisoners precisely because this issue is currently so neglected. The liberties of the vulnerable and invisible can be infringed at little political cost. The government’s treatment of the most defenseless populations may be a revealing early indicator of its true priorities and principles.

Muslims

Donald Trump has said some morally atrocious things about Muslims and how they should be treated. It is hard to know how seriously to take him, but if his cabinet appointments are any indication, he intends to have an anti-Muslim regime. I expect a more aggressive national security state that targets Muslims more often than they are already targeted. Muslims will stand under greater suspicion in a largely Christian country with a mostly secular ruling elite.

Muslims make up just one percent of the U.S. population. The typical American overestimates this proportion by a factor of 17. Most Americans don’t know much about Islam. And most Muslims have brown skin, which makes things even harder for them. Fortunately, we have strong constitutional protections against the sort of targeting of Muslims that occurs in Europe. We’re not going to ban Muslim dress, including at the state level. I’m skeptical that Trump will establish a registry of Muslims (though his proposal was to revive the related Bush-era policy, so it would not be unprecedented).

However, a lack of moral concern for Muslims will have one clear and terrible consequence: Muslim refugees are less likely to be admitted to the country because they are seen as alien and dangerous by much of the population. If Syrian refugees were uniformly Christian, and their opponents were uniformly Muslim, Americans would be more welcoming. Though even then, we might not be that welcoming. After all, Mexicans are almost uniformly Christian.

According to the liberal principle of religious liberty, Muslims get the same liberty that everyone else gets. If Trump undermines the liberty of Muslims, that’s a very serious injustice. Fortunately, this point is fairly obvious. Consistent liberals must stand up for basic Muslim freedoms.

Christians

One simple but controversial implication of the liberal principle of religious liberty concerns the question of appropriate religious exemptions. Government will sometimes create an exception to a generally applicable law on the grounds that the law places an undue and substantial burden on the religious liberty of some particular individual or religious group. One common concern about exemptions is that they’re unequal, since secular people, appealing to non-religious moral principles, do not receive them.

This problem can be solved relatively simply by extending protections for the exercise of religious conscience to cover secular worldviews and moral commitments. If we end up with too many exemptions, that is reason to repeal the law that has been sliced and diced already. This means that we’ll end up without some laws that conservatives and progressives sometimes want. But if we are liberals, we must recognize that it is not always fair or right to get what we want through the force of law.

Another concern is that religious exemptions might be used to impose harms on third parties or to impose expressive harms against traditionally marginalized groups. For instance, a common complaint about the religious exemptions granted to Hobby Lobby is that they allow Hobby Lobby to harm their female employees by denying them the maximum FDA-allowed range of contraceptives (Hobby Lobby is happy to cover 16 of the 20 approved forms of contraceptive services, just not Ella, Plan B, and the copper and plastic IUDs). A common complaint about giving conservative Christian wedding services exemptions from serving gays and lesbians is that they somehow harm gays and lesbians by contributing to the diminished social standing of gays and lesbians.

Despite the controversy, I think the application of the liberal principle to these cases is fairly straightforward. The Supreme Court got Hobby Lobby right. The government restricted religious liberty in ways that were unnecessary; they could have provided contraceptive coverage without forcing the evangelical Christian Green family, which owns Hobby Lobby, from violating their conscience. It is also hard to see how a simple decision not to provide a limited range of contraception counts as Hobby Lobby harming their employees, any more than anyone else is harming them for not paying for contraception.[2] So this is a case where the government was out of bounds and was rightly sent back to the drawing board, legislatively speaking, because it lacked a sufficiently strong justification for restricting religious freedom.[3]

Second, religious exemptions should be granted to Christian wedding services when the number of these businesses is very small, and at least when those businesses publicly post their objections[4]. If the people wanting the exemption are very small in number, the idea that they can reinforce social stigma is implausible. I suspect that no more than twenty or so wedding services would actually go through the (lengthy) legal process of securing these exemptions. And if the objection is publicly posted, there is no need for an offensive act to take place. Everyone knows the policy. 

This is not to say that what these businesses do is morally right. It is surely offensive, whether it is intended to be or not. But as J.S. Mill taught us long ago, a free society must distinguish between harms, which are rightly regulated by the law, and offensive acts, which are not. One of the great failings of many progressives today is an inability to distinguish between harms and offenses. This error stands behind many of the most illiberal attitudes of  progressives, which are most frequently and forcefully expressed on college campuses.

Christian wedding services are complicated in one respect because they’re for-profit businesses, and there’s a general social and moral expectation that you should be open for business to everyone, regardless of what social group they’re a member of. But wedding services, I think, often have an expressive or artistic dimension, in which case serving gays and lesbians does constitute a kind of cooperation in what these businesses regard as a sinful act. And in that case, since acting on one’s conscience is central to a person’s moral life, which includes her economic life, the liberal principle of religious liberty requires granting an exemption.

But even if you don’t agree that for-profits ought to be able to refuse service on religious grounds, you really should extend the liberal principle to non-profits. If a non-profit hospital doesn’t want to perform abortions or provide contraception, don’t make them. If a non-profit hospice center run by Catholics doesn’t want to give contraception to their employees then please just leave them be.[5]

I know many of you disagree. But ask yourself whether these fights are really worth winning. Winning through legal violence alienates many people from the liberal cause. These issues have enormous symbolic power for many Christians. Going after groups like Little Sisters of the Poor creates the impression that Christian religious liberty is not taken seriously or respected. In the Trump era, we need all the support for liberalism we can get. And, if you think about it, relenting on these issues is not really a big deal. There are much bigger fish to fry.

Another reason to respect Christian religious liberty is that many Christians are acting on a reasonable approach to sexual morality, if not the one secular liberals hold to. Sexual morality is one of the most variable parts of the otherwise common morality that runs through human cultures across time and at present. The contemporary liberal view that homosexual sex is morally blameless is extremely historically novel, and almost no one held it even twenty years ago. But today you almost certainly know someone prepared to lump Pope Francis’s position on sex with David Duke’s position on race.

Secular liberals should step back from their historically novel position and recognize that sensible and rational people of good will might see such an incredibly variable moral domain differently without being evil or wicked. It’s possible to recognize that the natural law sexual ethic that many contemporary Christians defend is actually fairly subtle and sophisticated, even if you think it is absolutely wrong-headed. The traditional Christian view should not be the legally established position. But it is surely a position that can be held by reasonable people of good will. So if people want to live according to that conception of sexual morality, liberalism requires letting them do so, including with respect to how they run their organizations, both non-profit and some for-profit organizations, even those that employ people who disagree.

If you’re not convinced, consider stepping even further back from our current conflicts. Long ago, Protestants and Catholics thought that their differences were so fundamentally irreconcilable, and that the other side was so dangerous, that violent wars were appropriate responses to the dangers posed by the other group. The solution they came to, over many decades, was to embrace a much disliked regime of tolerance. And over time, Protestants and Catholics came to accept that this compromise had better consequences than endless violent struggle. Given that nearly all of us affirm a basic right of religious freedom, we think Protestants and Catholics ultimately made the right call. I suggest that many secular liberals and conservative Christians are in a similar situation. An institutional peace, a new regime of mutual tolerance, would be better than fighting. Unfortunately, few liberals can see it.

A genuinely liberal peace allows people who disagree to live together and avoid a politics of continuous institutionalized aggression. On religious liberty issues, I’m afraid we’re moving away from a liberal peace and towards aggression. But we don’t have to.

A Consistent Liberal Approach to Religious Liberty

The liberal principle holds that religious liberty is the default position in a free society. Restrictions of religious liberty must be justified. And in many cases where we restrict religious liberty, the justification is insufficient. That goes for the religious liberty of prisoners, the religious liberty of Muslims, and the religious liberty of Christians. If we are to be principled liberal defenders of a free order against the threat of authoritarianism, we must step back from our side in the culture war and recognize that the liberal tradition requires a demanding adherence to principle that forbids approaching our political life as a war between our righteous cause and the wicked opposition.

It is the aggressive, zero-sum mindset of sectarian conflict that makes Trump possible. Only a GOP that despises Democrats is willing to elect Donald Trump to the presidency. Part of that hatred is generated by the perception, which holds more than a grain of truth, that liberals despise conservatives and theologically orthodox Christians. We must not let our mutual disdain lead us to compromise our principled commitment to religious freedom.

Kevin Vallier is Associate Professor of Philosophy at Bowling Green State University, a Niskanen Center adjunct fellow, and author of Liberal Politics and Public Faith: Beyond Separation.

Notes

[1] In my view, that justification must be public in nature, one that each person can make sense of from her own perspective.

[2] The issue of religious exemptions and third party harms is complicated, and merits further discussion that I cannot provide here.

[3] I think only closely held commercial businesses like Hobby Lobby should be granted these exemptions, because publicly held businesses cannot be said to have a conscience worth protecting. Consequently, the number of large businesses even eligible for such exemptions is fairly limited, and only a small fraction of those care about securing exemptions.

[4] Though they should be legally protected from doxxing, violent harassment, and threats that will invariably follow such postings.

[5] Note that I have only defended exemptions for owners or employees in private companies. Exemptions for public employees, when they constitute state endorsement of religious values or deny people public services to which they are entitled, are not required by the liberal principle.

Correction: in a previous version of the article, I incorrectly stated that the common law requires that businesses serve all comers, such that wedding services have a legal duty to be generally open for business. However, Prof. Ilya Somin corrected me. Only common carriers, public utilities, and a few other unusual enterprises are required to serve all comers by the common law; otherwise, businesses have a legal right of refusal in the absence of legislation to the contrary.