Untying the Religious Liberty Knot
Bettina Krause January/February 2024An interview with author and professor Thomas C. Berg
Not too long ago, religious liberty was a cherished, bipartisan constitutional value. Even as late as 1993, both sides of the political aisle in Congress rallied to pass, almost unanimously, the Religious Freedom Restoration Act, giving a considerable boost to federal religious-liberty protection. Three decades later, though, religious freedom is no longer a unifying ideal, but is instead contested territory in the culture wars that now define American politics.
It’s this reality that provides the starting point for a new book by nationally renowned First Amendment scholar Thomas C. Berg, James L. Oberstar Professor of Law and Public Policy at the University of St. Thomas School of Law, Minnesota.
Religious Liberty in a Polarized Age (Eerdmans, 2023) is a tour de force. Berg deftly describes the historical, social, and legal developments that have led us to the point where religious liberty claims are often viewed not just with skepticism but with hostility. And he makes a surprising argument—that a renewed commitment to a robust and inclusive understanding of religious liberty could help heal, rather than fuel, divisions in America.
Liberty editor Bettina Krause recently talked with Professor Berg about his book, which Christianity Today has named among those “most likely to shape evangelical life, thought, and culture” in the coming year.
Krause: If someone picks up your new book and turns to the author bio on the dust cover, they’ll see that through the years you’ve represented the legal interests of Christians, Muslims, atheists, Native Americans, Jehovah’s Witnesses, Hare Krishnas, Jews, and others. What’s the thread of principle that runs through your approach to religious liberty issues?
Berg: If I were to identify a common thread, it would be working for the civil liberty of all Americans in the things that are most significant to their lives and identity. This civil liberty is an important component of what the Supreme Court has called “a society of ordered liberty.”
Freedom of religion is essential to that. Historically and logically, you can say that freedom of religion is the first freedom—it’s the generator of all other kinds of civil liberties. It’s the first freedom in terms of setting limits on the government’s ability to control aspects of our lives and control the groups that we form outside of government. But I’ve come to emphasize more over time that protecting civil liberties also helps promote and sustain an ordered society.
In the landmark 1943 case, Barnette—which affirmed freedom of conscience for Jehovah’s Witness students who objected to saluting the flag—the Supreme Court wrote that when people have the assurance that their rights of conscience are secure, it tends to “diminish fear and jealousy of strong government.” They referred to “strong government” to mean the expanded role of government in the context of wartime and during the New Deal.
And this observation is relevant for us today. People today are fearful of the government. They’re fearful of what the “other side” will do if it gets control of the government.
But when we feel confident that our civil liberties are secure, it lowers the stakes in these ideological battles. It reduces our perceived need to attack those on the other side before they attack us. And it increases our sense of allegiance towards the government itself, which protects and recognizes our liberties. Government will only have allegiance from the people if it also recognizes their higher allegiances.
Krause: So, promoting religious freedom is—or should be—more than just a utilitarian exercise of just trying to advance our own policy preferences on different issues. We should be thinking of religious freedom as something that supports this bigger idea of “ordered liberty”?
Berg: Religious freedom has often been used, in effect, as merely a means to advance certain policies. The idea of religious freedom, or freedom of conscience, was invoked this way during the Reformation era of fifteenth- and sixteenth-century Europe. It was selective: “freedom of conscience for me,” as a way of ensuring that my side could continue to fight and prevail. But it didn’t lead to freedom of conscience for you. Each side defended their own conscience rights while seeking to punish others for exercising theirs. And that quickly broke down into waves of violence—the English Civil War, for instance, or the Thirty Years’ War.
There are parallels, I think, between what happened then and what we’re experiencing today. We’re caught in a softer version of the cycles of fear, resentment, and retaliation that, during the Reformation, led to out-and-out violence.
But in those earlier cycles, it was the idea of religious freedom for everyone that finally provided a solution—a way to break the cycle of violence. And religious freedom can, again, be at least a partial solution to the cycles that we’re experiencing now.
Krause: Some of these religious freedom conflicts we’re grappling with today revolve around issues that both sides see in terms of “zero-sum morality.” For some people of traditional faith, for instance, beliefs around issues of human sexuality aren’t up for negotiation. Yet some on the other side hold an equally strong moral conviction that these religious views should receive no quarter whatsoever in our laws. And so how do you get past this kind of zero-sum equation we’re locked into?
Berg: We have tied ourselves in a tight knot; we have to look for places to start picking at that knot, to start untying it. We need to find incremental ways of reducing the distrust between us. I think for most people—religious believers and others—there’s room within their religious tradition, or their philosophical tradition, for understanding and affirming protections that everyone should have, even people we disagree with.
So, how do we incrementally build trust? Dialogue helps, especially as practiced by groups such as Braver Angels. That organization convenes people from both sides of issues to discuss their differences in structured, positive ways—not the unstructured, negative ways we see on social media, where people just flame at each other. It matters how arguments are presented. It matters whether people are truly understanding what each other is saying and are avoiding misunderstandings. And when we’re talking about competing rights, describing each carefully can show how the key aspects of both can be protected.
In surveys, people respond differently to questions depending on the information presented in the question. Consider, for instance, the example of whether a cake designer or website designer should be required by law to produce work for a same-sex wedding. If people in a survey are asked broadly, “Can a conservative Christian decline to serve gay people?” overwhelming percentages say “no.” But if they’re asked more narrowly, and more accurately, “Can this person decline to produce creative work for a same-sex wedding?” then more people support that narrower claim. And the narrower question is really what’s at issue in the cases.
Krause: Throughout your book, there seems to be an underlying idea that we should seek the humanity in our ideological opponent, see them as an individual with rights, needs, wishes, and a personal identity they want to fulfill. Is that part of this process of incrementally building trust?
Berg: Yes. As believers in a God who loves everyone, we should bring that attitude to everything we do. It doesn’t mean agreeing with the other side’s vision. But it has to do with how you disagree, and how much room you’re prepared to leave for people to live according to their own vision, even when it conflicts with yours.
Krause: You explore an intriguing idea in your book: that those who argue for same-sex marriage have, in some ways, similar interests to those who are arguing against it. That seems counterintuitive. How does it work?
Berg: Obviously these two perspectives clash in many ways, so they’re not parallel in the sense of agreeing. They stem from different visions of the good life and of the human person. I don’t deny those differences. But I do say that there are parallels in the kinds of arguments that each side makes: parallels that can potentially increase our understanding and sympathy for those who live by the different vision.
First, both same-sex couples and traditional religious objectors seek to protect a pervasive aspect of their identity—the couple’s committed relationship on the one hand, and the objector’s religious identity and faith commitment on the other. Both of these aspects of identity are pervasive in a person’s life.
Second, both of those identities lead directly to conduct. The same-sex partners don’t just have a sexual orientation; they live that orientation in the committed relationship. The religious believers don’t just believe; they have to live out their commitment in the many aspects of their lives.
Religious believers have sometimes been told, “You can be a Christian, but you can’t express yourself as a Christian in the workplace.” Or, “You can believe in the Sabbath, but you can’t have Sabbath accommodation at work.” Or, “You can be a Jew, you just can’t wear a yarmulke in the military.” That’s not how religious faith works. Your religious identity leads to conduct—and conduct in society, not simply in private or insular settings.
In the same way that religious believers don’t want to be told, “Just keep it to yourself in your home and congregation,” same-sex couples want to live publicly, not just in the closet.
If we see those parallels, we can understand why someone on the other side won’t be happy if we say, “You can have this, you just can’t live or show it in public.” We wouldn’t want to be subject to that ourselves. Recognizing these similarities in the competing arguments can increase sympathy and understanding across polarized lines, even as people on either side continue to have conflicting visions of the good life.
Krause: Another theme in your book is the dynamic between American Christianity and minority faiths, such as Islam, and how this parallels, in some ways, the current dynamic between the political left and conservative Christianity.
Berg: Yes. Over the past two decades, too many evangelical Christians have tried to exclude Islam from the scope of religious freedom. They’ve argued, as Pat Robertson did, that “Islam is not a true religion. It’s a political movement intent on taking over.” This attitude has triggered opposition—sometimes violent—to the construction or expansion of mosques. It’s also led to the passage of state “anti-Sharia laws,” which either explicitly target Islam or are motivated by that goal, even when it’s not based on real public-policy concerns. Certainly, some versions of Islamic Sharia oppress women and oppress others. But anti-Sharia laws go way beyond those concerns: for example, they’d prevent two Muslim business owners from arbitrating their disputes by Islamic tenets (when that restrictive approach would stop Christian business owners from using “biblical conciliation” processes). And anti-Sharia laws are unnecessary: we already have public policy doctrines that can stop abusive forms of religious law.
Other evangelicals have suggested that Muslims should not be able to run for or occupy public office because Islam is a dangerous political movement. The irony is that today the left makes a parallel set of arguments about conservative Christians: that they’re not a real religious movement but rather a political movement that uses religion as a cover for bigotry and power. You could make that charge about some individuals on the religious right. But to condemn all conservative Christian objectors who are simply trying to live their own lives by their religious principles is grossly overbroad—just as the condemnation of Muslims is grossly overbroad. Yet conservative Christians have made these attacks on Muslims, with no sense of the irony that the same attacks are being directed at them.
Thoughtful evangelical defenders of religious freedom have always made the point that the rights of different groups stand or fall together. The same principles, positive or negative, are established in one case will also apply to other cases that involve different faith traditions.
Evangelical Christians are increasingly realizing that they are now often a cultural minority. Sometimes that realization leads them not to seek allies but rather to try to reassert or recapture their former majority status. For example, in red states they’ve proposed requiring the posting of the Ten Commandments in public school classrooms, and similar measures.
Krause: This shift in America’s religious demographics is, for many Christians, disorienting—even frightening. There’s a sense of impending minority status.
Berg: Yes. But the classification of who’s a minority and who’s not is actually rather complicated. It depends on the setting—first, on whether you live in a red or blue state. In red states, for instance, evangelical Christians remain very influential, and they sometimes oppress Muslims in those states. But in blue states, evangelical Christians are much more likely to be a vulnerable group subject to restriction by the more culturally liberal/progressive majority. Or if you’re an evangelical who’s a student or faculty member at a state university, you’re probably vulnerable to restriction or disfavor, even within a red state.
It also depends on how you classify religions. Opponents of evangelicals often say, “Well, evangelicals are Christians, and Christians are a powerful majority, of course.” But that’s too simplistic: evangelicals are very much at odds with liberal Christians who, in blue states, are part of the more liberal/progressive majority.
Given these complexities, we need to adopt rules that will, by their nature, protect whoever is the minority within different settings. A rule like the Religious Freedom Restoration Act—which protects religious freedom against generally applicable laws by requiring case-by-case exemptions—tends to protect whoever is the minority within a particular place. Such exemptions will usually protect classic minorities—Sikhs, Muslims, Jews, or Adventists—but sometimes they’ll protect larger groups, such as the larger group of non-Adventist evangelical Christians, who are dominant in some places but vulnerable in others.
Krause: What do you hope your book will accomplish? What do you hope people will take away from it?
Berg: I hope it will offer a way of talking about religious freedom that moves beyond the two poles that currently define the conversation. I certainly fall toward the pole of strong religious freedom. So, in that sense, I have a position. But I hope the arguments in my book offer helpful models of how to argue for religious freedom. I hope the arguments model how to engage with difficult issues while taking opposing interests and perspectives seriously. And I hope they help people move toward practical solutions while promoting understanding and sympathy across lines of disagreement, rather than stirring up more distrust.
If religious freedom is perceived as just a conservative value, as simply a means to advance conservative values, it won’t survive as a principle for conservatives or liberals. If we don’t reaffirm religious freedom as a protection for everyone, then eventually it’s going to be a protection for no one.
Article Author: Bettina Krause
Bettina Krause is the editor of Liberty magazine.