Playing the GameBettina Krause September/October 2021
In my previous job as a religious freedom advocate on Capitol Hill, I once got into conversation with someone whose approach to advocacy, frankly, defied common sense. He represented a minority faith, the Sikhs—a numerically tiny religious community that’s a mere footnote in the religious demographics of most countries. Yet, despite their small numbers, they tend to stand out. Their distinctive religious apparel sometimes makes their everyday lives challenging. In the days following September 11, for example, hate crimes against Sikhs in America, already high, climbed even further as people mistook turban-wearing Sikhs for Muslims.
As we talked, I asked him about news reports of atrocities committed against Sikhs just days earlier in Pakistan. “What sort of advocacy efforts does your organization mount here in Washington when events such as this occur?” I asked.
“Actually, that sort of thing isn’t my real focus,” he said. “I find my voice is much more effective when I’m speaking for the rights of other groups, rather than just those of my own people.” And he went on to detail the various projects he was currently involved with supporting other religious minorities facing discrimination or persecution.
His strategy seemed counterintuitive, to say the least. It was certainly out of sync with the no-holds-barred, win-or-bust style of many of the Capitol Hill advocates I’d seen in action.
Winning for our own tribe, or our own point of view, seems like a pretty universal drive. And I must admit that from childhood on, I’ve never really resonated with the idea that “it’s not whether you win or lose, it’s how you play the game.” Somehow that idea seemed less than compelling in the midst of a fiercely fought interschool soccer game or swimming race. Later, at law school, it became patently clear to me that winning does, indeed, count for a great deal within the language and practice of the law. There’s a reason it’s called the adversarial system! Within the common law model, each case argued is, in essence, a battle to the death of competing narratives; a battle aimed at producing a winner and loser. The side with the winning narrative receives the spoils of victory—injunctive relief, or monetary damages, or an affirmation of rights. Losers pay the costs, accept defeat, and perhaps make plans to fight another day.
When it comes to religious liberty, how do we measure winning or losing?
By one benchmark, at least, religious freedom is currently enjoying quite a winning streak in the United States. The recent Supreme Court decision in Fulton v. City of Philadelphia in favor of a Catholic social services agency, for instance, was just the latest in a string of High Court rulings that seem to bolster the claims of those who characterize the current Court as predictably “pro-religion.”
But according to one recent study, this pro-religion bent of the Supreme Court is part of a trend that predates the appointment of newest associate justices Brett Kavanaugh and Amy Coney Barrett, who’ve added even more weight to the conservative side of the scales. In the study, researchers analyzed Supreme Court rulings on First Amendment religion clauses from the past 70 years, finding that Court decisions in favor of religion have risen steadily through the decades. Pro-religion rulings climbed progressively from 41 percent in the 1950s and 1960s under Chief Justice Earl Warren to an impressive 81 percent under the current reign of Chief Justice John Roberts.¹
So, religious freedom is winning, right?
And yet if you tilt your head and squint a bit, the picture changes, and it can also look a lot like religious freedom in this country is actually losing ground—quickly. It’s losing the battle of public opinion.
In widely circulated remarks last year, Supreme Court Justice Samuel Alito suggested that “religious liberty is fast becoming a disfavored right” in American society.² It’s hard to disagree that the halo around religious freedom as an uncontested American ideal is slipping. It’s difficult to ignore the frequent opinion pieces declaring that religious freedom has been “weaponized”; that it operates as a cover for discrimination and bigotry; that when the state grants religious exemptions to generally applicable laws, it’s not supporting First Amendment free exercise so much as crossing the establishment clause line.
A national poll last year explored current attitudes in America toward religious freedom, focusing on differences between self-identified liberals and conservatives.3 The bottom line? While debates around religious freedom have always existed, the issue today has become hopelessly entangled in political partisanship, jumbled up with a host of other emotionally charged issues that litter our polarized political landscape.
Perhaps it’s time to take a long hard look at our end goals.
As Liberty’s new editor, I’ve been reading through the magazine’s archives, beginning with the first issue to roll off the presses in early 1906. In the pages of that first issue—a bargain at just five cents a copy—the editors explained why they’d brought this journal into existence, and what they wanted to achieve.
It was, they said, a time of great political agitation for a national Sunday law, which would have far-reaching legal consequences for those who didn’t observe the Sabbath of America’s Protestant majority. As members of a religious minority who worshipped on a different day, Liberty’s editors saw ahead of them a protracted battle for the preservation of religious freedom for all Americans.
They wrote: “Overcome darkness with light. It is the only effective way. In the contest with ignorance, bigotry, and intolerance the best victories will be gained by calling attention to the brightness and beauty of the principles of religious freedom, and not by simply trying to make people see the darkness and ugliness of religious intolerance. Let light and darkness, beauty and ugliness, be put side by side, and the people will soon see the contrast, and make their choice between them.” 4
We’ve inherited the task they began, and in today’s political and social climate, it’s a task far more arduous than pulling off Supreme Court wins. Real victory for religious freedom lies elsewhere and is harder won. It requires salvaging religious freedom from the culture wars. Cleansing it of its political taint. Reclaiming and demonstrating the “beauty of the principles of religious freedom.”
And in rebuilding a culture of religious freedom—as opposed to just defending religious freedom rights—I’d suggest that our tone is just as important as our legal arguments. Maybe, as my Sikh colleague seemed to imply, winning for our own team isn’t all that counts. Maybe it really is more about how we play the game.
1 Lee Epstein and Eric A. Posner, “The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait,” Supreme Court Review, April 3, 2021, https://ssrn.com/abstract=3825759.
2 Address by Justice Samuel Alito to the Federalist Society, November 12, 2020, https://youtu.be/tYLZL4GZVbA.
3 “Examining Americans’ Views on Religious Freedom and Its Limits,” conducted by the University of Chicago Divinity School and the Associated Press-NORC Center for Public Affairs Research, https://apnorc.org/wp-content/uploads/2020/08/Divinity-School_Topline.pdf.
4 Liberty, April 1906, p. 32.
Article Author: Bettina Krause
Bettina Krause is the editor of Liberty magazine.