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Ken Starr Is Right About Religious Liberty, But That Might Not Be Enough


A federal lawsuit filed on March 29 against the U.S. Department of Education cites 33 current and former LGBTQ students at federally funded Christian colleges and universities for what the nonprofit Religious Exemption Accountability Project refers to as “unconstitutional discriminatory policies.”

According to the class-action suit, the religious exemption status of the 25 listed schools allows them to maintain discriminatory policies while receiving government funding. This suit, perhaps intentionally, follows the recent passage of the Equality Act in the House — effectively adding gender identity and sexuality to the groups protected under the Civil Rights Act — which is now with the Senate.

The lawsuit and the bill represent a significant escalation of attacks on religious liberty within the first 100 days of the Biden administration. Religious Liberty in Crisis: Exercising Your Faith in an Age of Uncertainty, by former solicitor general of the United States, Baylor University president, and dean of the Pepperdine University School of Law is thus well timed. Indeed, Baylor is one of the 25 schools named in the class-action suit (perhaps surprisingly, Pepperdine, which also has strong evangelical chops, is not).

Starr’s book is an excellent introduction to the principles of American legal and jurisprudence as they relate to religious liberty, although lawsuits like the one mentioned above may make manifest the weaknesses of those very same principles.

‘A Moral and Religious People’

Certainly, the founders believed the American experiment would succeed only with a religiously inclined and moral people. As John Adams famously asserted: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” That same generation also ensured that the goods of religion were explicitly endorsed in the nation’s early legal documents and traditions.

Congress’s 1787 Northwest Ordinance, for example, explicitly declares: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, and the means of education shall forever be encouraged.” Or consider that among the liberties protected in the First Amendment of the Bill of Rights, religion is first, both in the rejection of establishmentarianism – which was as much about protecting churches from encroachment by the state as it was about rejecting theocracy – as well as in the prohibition of limiting the “free exercise” of religion.

One might then reasonably argue that religious belief and practice is the foremost freedom guaranteed by our constitutional government, as well as essential to republicanism. As Starr explains, “The First Amendment does not so much create a ‘wall of separation’ between the church and the state, but rather a ‘wall of protection’ so that faith communities can freely chart their own course without disrupting significant public interests.”

This points to one of Starr’s so-described fundamental principles: non-denigration, which holds that no practice can be used to denigrate minority or faith traditions. “Absent compelling reasons, the government cannot pass laws that target religious institutions in discriminatory ways; and government entities cannot interfere with religious institutions,” Starr observes.

Yet there are other principles at work in American law and jurisprudence affecting religious protections. The principle of neutrality, which flows out of the establishment clause, “requires the state to be a neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary,” in the words of Supreme Court Justice Hugo Black. In applying this principle, the courts have for example ruled that religious institutions can receive equal access to government programs, so long as those programs are not designed to directly promote religious liberty (see Aguilar v. Felton).

Yet another principle is that of accommodation, meaning that the U.S. Government “can and should accommodate the religious needs and expressions of the American people,” according to Starr. This principle is not necessarily in conflict with that of non-favoritism (there should be no deliberate exclusion of certain faith communities). Rather, accommodation is in play when the U.S. government respects and even sponsors the traditions, symbols, and practices of Americans.

So, for example, chaplaincies have been funded for the House and Senate since the very first Congress. Prayers are offered before congressional proceedings. The White House participates in a yearly Christmas tree decoration. And crosses, like the targeted one in Bladensburg, Maryland, are permitted on government property. “History and tradition, taken together, actually form a method of interpreting the Constitution,” says Starr.

Moreover, Congress and the courts have periodically recognized the “beneficial and stabilizing influence” of religious institutions in “community life,” to use the language of Walz v. Tax Commission. In the 1892 decision Holy Trinity v. United States, Justice David Brewer emphatically declared that America is “a Christian nation.”

Relying on the scholarly work of Robert Putnam and David Campbell in their book American Grace, Starr cites various examples of how religion operates as undeniable good for American society. Among other things, churches and religious institutions are responsible for food pantries, clothing banks, tutoring services, disaster relief work, prison ministry, and various forms of counseling.

The ministerial exemption — which protects churches from being sued for discrimination by their ministers and teachers, particularly if those ministers or teachers were fired for theological reasons — also reflects historic American appreciation of religious faith and practice. The purpose of the ministerial exemption is to avoid a scenario in which the state dictates to a religious institution who it can hire or fire, thus violating the principle of non-denigration. As Justice Samuel Alito explained: “Religious autonomy means that religious authorities must be free to determine who is qualified to serve in positions of substantial religious importance.”

Religious Liberty vs. Identitarianism

All of this might lead one to be as sanguine as Starr, who assesses that a robust, consistent tradition of protecting faith and practice over 200 years of law and jurisprudence provides a daunting bulwark against opponents to religious freedom. I agree that there is some reason for hope, not only because historical American jurisprudence has frequently been friendly to religion, but because the current composition of the Supreme Court is decidedly pro-religion. Yet I have perhaps more serious concerns, in part because of the character of the American founding as it related to religion, as well as because of broader socio-cultural trends affecting our nation.

As scholar C.C. Pecknold has noted, “the founders compromised on a vaguely philosophical conception of God, knowing that (a) the states were mostly confessional states, with thicker civil religions — Episcopalian, Baptist, basically Protestant; and (b) the pantheistic and deistic tendency could be placated this way.” Yet such an underspecification inclined to a Lockean view of religion, which in turn tended toward indifferentism regarding true/false distinctions in religion. This was and is inherently unstable, and we are increasingly witnessing its effects.

Take, for example, the lawsuit cited above regarding LGBTQ students at religious universities, which argues that religious exemptions violate the Constitution’s equal protection clause by singling out LGBTQ students as a “socially despised group for legal disfavor.” One might also cite the continuing controversy regarding Colorado cake baker Jack Philips, who has refused to participate in homosexual weddings because doing so would violate his religious beliefs. Starr defends people like Philips by claiming that such “honest, law-abiding Americans” do not intend to harm anyone.

But such reasoning is not particularly persuasive to LGBTQ leftists and their allies. Indeed, such persons view LGBTQ access to cake baking, wedding photography, or any other service to be just as important to an earlier black generation’s access to water fountains, bathrooms, and restaurants. The latter are protected under the equal protection clause of the Fourteenth Amendment, originally aimed at protecting disenfranchised black Americans. LGBTQ students at religious schools argue the former should be as well.

Imagine a businessperson refusing service to an interracial couple for their upcoming wedding, on the grounds of his religious beliefs (perhaps he believes that the “Sons of Ham” are cursed). Presumably no court in this country would honor such a religious exemption. Yet what makes race different from sexuality or gender? All, according to U.S. law, are now protected under the Fourteenth Amendment. So who, exactly, should win in a battle between the person flying the religious liberty flag and the person flying another identitarian flag?

The problem, I would submit, is that because the framers refrained from providing any definition of what represents good and true religion worthy of being defended, and what represents abhorrent religion unworthy of legal protection, the ultimate result are dilemmas like that described above. Those who adhere to the natural law think there are important distinctions between race and sexuality, ones that would necessitate protecting the former and not necessarily the latter as they relate to religious liberty. But the framers failed to sufficiently define what religions or beliefs are worthy of protection and which are not, deferring to states, many of which still recognized an established church.

Or consider Wisconsin v. Yoder, which protected Amish communities and the education of their children on the grounds that state interests must yield to a religious community’s “profound interest in preserving their religious way of life,” as Starr puts it. But what kind of criteria is “profundity”?

Are any and all religious communities worthy of legal protection as long as they demonstrate a profound interest in trying to protect their religious traditions? What about a religion that engages in Satanic worship, witchcraft, cultic prostitution, or the sacrifice of endangered species? Indeed, the state has often demonstrated its willingness to interfere in religion when there are compelling reasons, such as various criminal activities.

Moreover, one can easily imagine the principle of accommodation disintegrating in our increasingly post-religious American culture — a recent Gallup poll found that American church membership has fallen below the majority for the first time in almost a century. It is conceivable that anti-religious Americans may argue that just as constitutional and jurisprudence acceptance of slavery and discrimination (see the Constitution’s “Three-Fifths” clause, Dred Scott v. Sandford or Plessy v. Ferguson) represented an immoral, irrational tradition, so are those traditions representative of Christianity. No more chaplaincies or White House Christmas trees. Or perhaps there will be a demand that the next congressional chaplains are Wiccans!

Threats and Doubts

Starr recognizes these threats to religious liberty. His practical suggestions to combat them are threefold: get elected, vote your faith, and become a genuine friend of freedom. However, those with antipathies towards many forms of Christianity and other religious traditions believe it is precisely those religions that are the opponents of true freedom.

What is more important: one’s religious belief, which many characterize as simply a subjective choice; or one’s racial, sexual, or gender identity, which many define as a biological given? Or perhaps even more sinister, what if American civil religion finds its fulfillment not in some generic Judaeo-Christian ethic, but racial, sexual, and gender identitarianism?

As Pecknold observes: “The ‘Great Awokening’ is an attempt to give civil religion some real doctrines, real moral claims on lives. It’s both a parasite on the old underdetermined civil religion, and a brand new, bolder civil religion.”

Federal American law and jurisprudence have never sought to coherently and consistently define what constitutes legitimate religion — apart from such acts as once demanding that conscientious-objector emanate from belief in a “supreme being” — largely because of the influence of disestablishmentarianism and indifferentism. Perhaps that worked when the majority of Americans adhered to a shared, coherent ethical and cultural framework that owed its character to Christianity. Those days are increasingly behind us.

Classical liberalism, its adherents often argue, is designed to accommodate all religions and none. But, says Pecknold, “this amounts to a non-answer which insists on toleration while the Woke Hierarchy establishes its church.”

In an America increasingly antagonistic to many traditional forms of religious practice, especially those who are suspicious of the sexual revolution, it’s worth questioning the strength of our legal and jurisprudential levees against the progressivist flood. As a person of religious conviction, I confess I have my doubts.