In 1982, evangelical lawyer John W. Whitehead penned a book arguing that the United States “should be an explicitly Christian nation.” A graduate of the University of Arkansas School of Law, he founded a Christian legal organization, the Rutherford Institute, which took on cases defending Christian children in public schools who were prohibited from reading their Bibles in school or on the bus or praying. In the 1980s, Whitehead even defended Georgia’s anti-sodomy law and warned of the dangers posed by the LGBT movement.
Now Whitehead believes the Christian legal movement has “gone astray,” according to a feature last week in The Washington Post. The cause, he claims, has “become dangerously politicized and intertwined with right-wing politics,” and has “wrongly elevated the rights of conservative Christians over those of religious minorities.”
Yet what has changed is less the Christian legal movement but America itself. Indeed, what Whitehead and his Christian confreres fail to recognize is that their promotion of religious liberty is predicated upon a legal framework that is Western in origin, and only exists in the West and elsewhere because of the (admittedly declining) influence of Christianity.
Whitehead: Shame on the Christian Legal Movement for Succeeding
“We started out trying to protect the little people,” Whitehead complained to WaPo. Now Christian legal movement leaders are “sitting in the White House with Trump. They’re now part of the nationalist movement. Religious liberty is a constitutional principle, not a political program.” Indeed, Whitehead’s transformation began in the 1990s, when he opposed an amendment to the Colorado state constitution that, in the Post’s words, “barred communities from passing laws to prohibit discrimination against gay and transgender people.”
“If the government is acting as a Christian nationalist organization as opposed to one representing the Constitution and all Americans, there is a problem,” Whitehead explained. Now Whitehead advocates for illegal aliens deported by the Trump administration and universities that lost funding because of their promotion of DEI. “The moment religious freedom organizations begin aligning themselves with those in power, or framing their work in partisan or ideological terms, they risk weakening the very principle they are trying to defend,” he added.
Some scholars agree with Whitehead. “It’s become a partisan issue,” said religious freedom scholar Douglas Laycock. “Religious liberty is for everyone. Making it partisan is not good.” (Laycock once submitted a brief supporting same-sex unions in the Obergefell v. Hodges, has bragged about protesting a Christmas event at his high school, and said of his career, “I could just as well have been a gay-rights lawyer as a religious liberty lawyer.”)
Political scientist Daniel Bennett in turn criticized Christian legal firms for promoting “outright hostile advocacy against non-Christians,” noting Muslims specifically as purported victims. Religious liberty scholar Marci Hamilton complained that “the Christian religious liberty movement became ‘extreme.’”
Religious Liberty Only Exists Because of Christianity
Whitehead and others critical of the contemporary Christian legal movement fail to understand an essential reality about religious liberty: Its origin and survival are predicated on a broader Western, and even Christian, worldview. It was the third-century Christian apologist Tertullian who wrote: “It is only just and a privilege inherent in human nature that every person should be able to worship according to his own convictions.” Tertullian further exhorted the Romans: “See that you do not end up fostering irreligion by taking away freedom of religion and forbid free choice with respect to divine matters.”
Thinkers such as Gregory the Great and Thomas Aquinas, and later Virginia Founding Fathers George Mason, James, Madison, and Thomas Jefferson endorsed and promoted this ancient Christian concept. As recently deceased historian Robert Louis Wilken noted in his book Liberty in the Things of God, though such thinkers as John Locke and William Blackstone were immediate influences on Jefferson’s and Madison’s ideas on religious liberty, Jefferson possessed a copy of Tertullian’s works, and even cited them in marginalia of his own writings.
For the founders, religious liberty was understood to protect those religious traditions with which they were familiar and viewed as having a positive influence on public and individual morality — primarily various sects of Christianity, as well as Judaism, visible in Washington’s famous 1790 letter to the Hebrew Congregation of Newport, Rhode Island.
Outside the West, there has historically been, and remains, little support for religious liberty. Islam historically has quite explicitly sought to marginalize and replace Christianity wherever it has expanded, and today 21 Muslim-majority countries have apostasy laws on the books. Practically every country where Christianity has spread it has encountered significant, violent resistance to the faith, and in those non-Christian countries today where religious liberty enjoys some measure of protection (for example, Japan, India, Thailand), much of the reason is because of the influence of the West. Today, when Christianity is permitted and protected in non-majority-Christian countries it is often because the faith is tiny, lacks any cultural influence, and can be easily marginalized or controlled.
Rising Stakes of Christian Decline
Without that Christian culture and Christianity-informed legal structures, White’s whole movement never would have existed in the first place, because his advocacy presumes a legal framework sympathetic to the Christian faith. It’s not the Christian legal movement that has gone astray, but that the stakes have risen alarmingly. When the movement started, a significant majority of the population still identified as Christian (about 85 percent) and the country was demonstrably culturally Christian. Because of the decline of Christianity in the United States, and the dramatic increase of non-Christian immigrant communities, the threats to religious liberty are far higher than they were when John Whitehead started the Rutherford Institute in 1982.
A louder, more muscular cultural Christianity (and Christian legal movement) is necessary to combat what are very real, existential threats to the welfare of American Christians in a country where now fewer than two-thirds of Americans self-identify as Christian. That need is even more acute given the precipitous decline in civic knowledge and antagonism toward fundamental rights secured by our now maligned political forefathers, as multiple contributors observe in the recently published Higher Education in America: It’s Worse Than You Think.
Without that movement, Roe v. Wade would not only not have been overturned, but pregnancy resource centers would be targeted, if not closed; without that movement, parents would have less recourse to resist LGBT ideology being impressed upon their children in public schools. Advocates in the pro-life movement will say that if their efforts result in one less child being aborted, everything was worth it; the same is true when it comes to resisting LGBT ideology — if legal efforts dissuade even one child from life-altering self-immolation, it’s a worthy cause.
Christians in the United States face increasingly vocal and aggressive attacks, whether from left-wing secularists or Muslims eager to spread Sharia. Whitehead’s supposedly principled criticisms say less about the alleged “hypocrisy” of the Christian legal movement than they do about his naivete and historic need to play the contrarian spoiler, if not a type of savior complex.
