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Editor, First Things
Religion and Public Life in America
R. R. RENO is the editor of First Things, a journal of religion
in public life. He received his B.A. from Haverford College and his
Ph.D. in religious studies from Yale University, and taught theology and
ethics at Creighton University in Omaha, Nebraska, for 20 years. He is
the author of Fighting the Noonday Devil, Sanctified Vision, and acommentary on the Book of Genesis, as well as a number of other books and essays.
The following is adapted from a speech delivered on February 20,
2013, at a Hillsdale College National Leadership Seminar in Bonita
RELIGIOUS LIBERTY is being redefined in America, or at least many
would like it to be. Our secular establishment wants to reduce the
autonomy of religious institutions and limit the influence of faith in
the public square. The reason is not hard to grasp. In America,
“religion” largely means Christianity, and today our secular culture
views orthodox Christian churches as troublesome, retrograde, and
reactionary forces. They’re seen as anti-science, anti-gay, and
anti-women—which is to say anti-progress as the Left defines progress.
Not surprisingly, then, the Left believes society will be best served if
Christians are limited in their influence on public life. And in the
short run this view is likely to succeed. There will be many arguments
urging Christians to keep their religion strictly religious rather than
“political.” And there won’t just be arguments; there will be laws as
well. We’re in the midst of climate change—one that’s getting colder and
colder toward religion.
Recent court cases and controversies suggest trends unfriendly to
religion in public life. In 2005, a former teacher at Hosanna-Tabor
Evangelical Lutheran Church and School in Redford, Michigan, filed an
employment lawsuit claiming discrimination based on disability. The
school fired her for violating St. Paul’s teaching that Christians
should not bring their disputes before secular judges. The subsequent
lawsuit revolved around the question of whether a religious school could
invoke a religious principle to justify firing an employee. The school
said it could, drawing on a legal doctrine known as the ministerial
exception, which allows religious institutions wide latitude in hiring
and firing their religious leaders. It’s in the nature of legal
arguments to be complex and multi-layered, but in this case the Obama
administration’s lawyers made a shockingly blunt argument: Their brief
claimed that there should be no ministerial exception.
The Supreme Court rejected this argument in a unanimous 9-0 vote. But
it’s telling nonetheless that lawyers in the Justice Department wanted
to eliminate this exception. Their argument was straightforward:
Government needs to have broad powers to address the problem of
discrimination—in this case disability—as well as other injustices.
Conceding too much to religious institutions limits those powers. Why
should the theological doctrines of the Lutheran Church—Missouri Synod,
or of any other church, trump the legal doctrines of the United States
when the important principle of non-discrimination is at stake? It is an
arresting question, to say the least—especially when we remember that
the Left is currently pushing to add gay marriage to the list of civil
Concerns about the autonomy of religious institutions are also at
work in the Obama administration’s tussle with the Catholic Church and
her religious allies over the mandate to provide free contraceptives,
sterilization, and abortion-inducing drugs. After the initial public
outcry, the administration announced a supposed compromise, which has
been recently revised and re-proposed. The Obama administration allows
that churches and organizations directly under the control of those
churches are religious employers and can opt out of the morally
controversial coverage. But religious colleges and charities are not and
cannot. To them, the administration offers a so-called accommodation.
The details are complex, but a recent statement issued by Cardinal
Dolan of New York identifies the key issue: Who counts as a religious
employer? It’s a question closely related to the issue in the
Hosanna-Tabor case, which asks who counts as a religious employee. Once
again the Obama administration seeks a narrow definition,
“accommodating” others in an act of lèse majesté, as it were.
The Catholic Church and her allies want a broad definition that includes
Catholic health care, Catholic universities, and Catholic charities.
The Church knows that it cannot count on accommodations—after all, when
various states such as Illinois passed laws allowing gay adoptions, they
did not “accommodate” Catholic charities, but instead demanded
compliance with principles of non-discrimination, forcing the Church to
shut down her adoption agencies in those jurisdictions.
Cardinal Dolan’s statement went still further. For-profit companies
are not religious in the way that Notre Dame University is religious.
Nonetheless, the religious beliefs of those who own and run businesses
in America should be accorded some protection. This idea the Obama
administration flatly rejects. By their progressive way of thinking,
economic life should be under the full and unlimited control of the
Religious liberty is undermined in a third and different way as well.
For a long time, political theorists like John Rawls have argued that
our laws must be based on so-called public reason, which is in fact an
ambiguous, ill-defined concept that gives privileged status to
liberalism. In 2010, Federal District Court Judge Vaughn Walker
overturned Proposition 8—the ballot measure that reversed the California
Supreme Court’s 2006 decision that homosexuals have a right to
marry—citing the lack of a rational basis for thinking that only men and
women can marry. “The evidence shows conclusively,” he wrote, “that
Proposition 8 enacts, without reason, a private moral view that same-sex
couples are inferior to opposite-sex couples.” He continues by
observing that many supporters of Proposition 8 were motivated by their
religious convictions, which—following Rawls—he presumes should not be
allowed to govern public law.
This line of thinking is not unique to Judge Walker. The influence of
Rawls has been extensive, leading to restrictions on the use of
religious reasons or even religiously-influenced reasons in public
debate. In striking down Texas sodomy laws, Supreme Court Justice
Anthony Kennedy noted that moral censure of homosexuality has “been
shaped by religious beliefs.” The idea seems to be that moral views
historically supported by religion—which of course means all moral views
other than modern secular ones—are constitutionally suspect.
Here we come to the unifying feature of contemporary challenges to
religious freedom—the desire to limit the influence of religion over
public life. In the world envisioned by Obama administration lawyers,
churches will have freedom as “houses of worship,” but unless they
accept the secular consensus they can’t inspire their adherents to form
institutions to educate and serve society in accordance with the
principles of their faith. Under a legal regime influenced by the
concept of public reason, religious people are free to speak—but when
their voices contradict the secular consensus, they’re not allowed into
our legislative chambers or courtrooms.
Thus our present clashes over religious liberty. The Constitution
protects religious liberty in two ways. First, it prohibits laws
establishing a religion. This prevents the dominant religion from using
the political power of majority rule to privilege its own doctrines to
the disadvantage of others. Second, it prohibits laws that limit the
free exercise of religion. What we’re seeing today is a secular
liberalism that wants to expand the prohibition of establishment to
silence articulate religious voices and disenfranchise religiously
motivated voters, and at the same time to narrow the scope of free
exercise so that the new secular morality can reign over American
Rise of the Nones
This shift in legal thinking on the Left reflects underlying religious
trends. As the religious character of our society changes, so do our
assumptions about religious freedom. The main change has been the rise
of the Nones. In the 1950s, around three percent of Americans checked
the “none” box when asked about their religious affiliation. That number
has grown, especially in the last decade, to 20 percent of the
population. And Nones are heavily represented in elite culture. A great
deal of higher education is dominated by Nones, as are important
cultural institutions, the media, and Hollywood. They are conscious of
their power, and they feel the momentum of their growth.
At the same time, the number of Americans who say they go to church
every week has remained strikingly constant over the last 50 years, at
around 35 percent. Sociologists of religion think this self-reported
number is higher than the actual one, which may be closer to 25 percent.
In any event, the social reality is the same. As the Nones have emerged
as a significant cohort, the committed core of religious people has not
declined and in fact has become unified and increasingly battle tested.
Protestants and Catholics alike know they’re up against an often
hostile secular culture—and although a far smaller portion of the
population, the same holds for Jews and Muslims as well.
These two trends—the rise of the Nones and the consolidation of the
committed core of believers—have led to friction in public life. The
Nones and religious Americans collide culturally and politically, not
For a long time, the press has reported on the influence of religious
voters, especially Evangelicals. Polling data shows that religiosity
has become increasingly reliable as a predictor of political loyalties.
But what’s far less commonly reported is that this goes both ways. In
their recent book, American Grace: How Religion Divides and Unites Us,
Robert Putnam and William Campbell focused on the practice of saying
grace before meals as an indication of religious commitment and found a
striking correlation. Seventy percent of those who never say grace
before meals identify as Democrats, compared to slightly more than 20
percent who identify as Republicans. Nones are extremely ideological.
Meanwhile, among those who say grace daily, 40 percent identify as
Democrats and 50 percent as Republicans. Religious people are more
diverse, but they trend to the political right, and the more religious
they are the more likely they are to vote Republican.
Other data also suggests a growing divide between the irreligious and
religious. A recent Pew study confirms that Nones are the single most
ideologically committed cohort of white Americans, rivaled only by
Evangelical Protestants. They overwhelmingly support abortion and gay
marriage. Seventy-five percent of them voted for Barack Obama in 2008,
and they played a decisive role in his victory in 2012. In Ohio, Obama
lost the Protestant vote by three percent and the Catholic vote by
eleven percent—and both numbers rise if we isolate Protestants and
Catholics who say they go to church every week. But he won the Nones,
who make up 12 percent of the electorate in Ohio, by an astounding 47
I think it’s fair to say that Obama ran a values campaign last fall
that gambled that the Nones would cast the decisive votes. For the first
time in American political history, the winning party deliberately
attacked religion. Its national convention famously struck God from the
platform, only to have it restored by anxious party leaders in a comical
session characterized by the kind of frivolity that comes when people
recognize that it doesn’t really matter. Democratic talking points
included the “war on women” and other well-crafted slogans that rallied
their base, the Nones, who at 24 percent of all Democrat and
Democratic-leaning voters have become the single largest identifiable
cohort in the liberal coalition.
This presents the deepest threat to religious liberty today. It’s not
good when the most numerous and powerful constituency in the Democratic
Party has no time for religion. This is all the more true when its
ideology has the effect of encouraging the rest of the party to view
religion—especially Christianity—as the enemy; and when law professors
provide reasons why the Constitution doesn’t protect religious people.
Religious Liberty Under the Gun
From the end of the Civil War until the 1960s, the wealthiest, best
educated, and most powerful Americans remained largely loyal to
Christianity. That’s changed. There were warning signs. William F.
Buckley, Jr. chronicled how Yale in the early ’50s could no longer
support even the bland religiosity of liberal Protestantism. Today, Yale
and other elite institutions can be relied upon to provide
anti-Christian propaganda. Stephen Pinker and Stephen Greenblatt at
Harvard publish books that show how Christianity pretty much ruins
everything, as Christopher Hitchens put it so bluntly. The major presses
publish book after book by scholars like Elaine Pagels at Princeton,
who argues that Christianity is for the most part an invention of power
hungry bishops who suppressed the genuine diversity and spiritual
richness of early followers of Jesus.
One can dispute the accuracy of the books, articles, and lectures of
these and other authors. This is necessary, but unlikely to be
effective. Experts savaged Greenblatt’s book on Lucretius, The Swerve,
but it won the National Book Award for non-fiction. That’s not an
accident. Greenblatt and others at elite universities are serving an
important ideological purpose by using their academic authority to
discredit Christianity, whose adherents are obstacles not only to
abortion and gay rights, but to medical research unrestricted by moral
concerns about the use of fetal tissue, to new reproductive
technologies, to doctor-assisted suicide, and in general to liquefying
traditional moral limits so that they can be reconstructed according to
the desires of the Nones. Books by these elite academics reassure the
Nones and their fellow travelers that they are not opposed to anything
good or even respectable, but rather to historic forms of oppression,
ignorance, and prejudice.
I cannot overstate the importance of these ideological attacks on
Christianity. Our Constitution accords us rights, and the courts cannot
void these rights willy-nilly. But history shows that the Constitution
is a plastic document. When our elite culture thinks something is bad
for society as a whole, judges find ways to suppress it. The First
Amendment offered no protection to Bob Jones University, which lost its
tax-exempt status because of a policy that prohibited inter-racial
dating. As the Supreme Court majority in 1983 wrote in that case:
“Government has a fundamental, overriding interest in eradicating racial
discrimination in education . . . which substantially outweighs
whatever burden denial of tax benefits places on [the University’s]
exercise of their religious beliefs.”
In recent years the Supreme Court has been largely solicitous of
religious freedom, sensing perhaps that our cultural conflicts over
religion and morality need to be kept within bounds. But the law
professors are preparing the way for changes. Martha Nussbaum, who
teaches at the University of Chicago Law School, has opined that the
colleges and universities run by Catholic religious orders that require
their presidents or other leaders to be members of the order should lose
their tax exempt status, because they discriminate against women. She
allows that current interpretations of the First Amendment don’t support
her view, but that’s not much comfort. All Nussbaum is doing is
applying the logic of the Bob Jones case to the feminist project of
eradicating discrimination based on sex.
Former Georgetown law professor Chai Feldblum—who is also a current
Obama appointee to the Equal Employment Opportunity Commission—has
written about the coming conflicts between gay rights and religious
liberty. With an admirable frankness she admits, “I’m having a hard time
coming up with any case in which religious liberty should win.” Again,
the Bob Jones case is in the background, as are other aspects of civil
rights law designed to stamp out racial discrimination. For someone like
Feldblum, when religious individuals and institutions don’t conform to
the new consensus about sexual morality, their freedoms should be
It is precisely the possibilities evoked by Nussbaum and Feldblum
that now motivate the Obama administration’s intransigence about
allowing places like Notre Dame to be classified as religious employers.
In the Bob Jones case, the justices were very careful to stipulate that
“churches or other purely religious institutions” remain protected by
the First Amendment’s principle of free exercise. By “accommodating”
rather than counting Notre Dame and other educational and charitable
organizations as religious employers, secular liberalism can target them
in the future, as they have done to Catholic adoption agencies that
won’t place children with homosexual couples.
A recent book by University of Chicago professor of philosophy and
law Brian Leiter outlines what I believe will become the theoretical
consensus that does away with religious liberty in spirit if not in
letter. “There is no principled reason,” he writes, “for legal or
constitutional regimes to single out religion for protection.” Leiter
describes religious belief as a uniquely bad combination of moral fervor
and mental blindness, serving no public good that justifies special
protection. More significantly—and this is Leiter’s main thesis—it is
patently unfair to afford religion such protection. Why should a
Catholic or a Baptist have a special right while Peter Singer, a
committed utilitarian, does not? Evoking the principle of fairness,
Leiter argues that everybody’s conscience should be accorded the same
legal protections. Thus he proposes to replace religious liberty with a
plenary “liberty of conscience.”
Leiter’s argument is libertarian. He wants to get the government out
of the business of deciding whose conscience is worth protecting. This
mentality seems to expand freedom, but that’s an illusion. In practice
it will lead to diminished freedom, as is always the case with any
Let me give an example. The urban high school my son attended
strictly prohibits hats and headgear. It does so in order to keep
gang-related symbols and regalia out of the school. However, the school
recognizes a special right of religious freedom, and my son, whose
mother is Jewish and who was raised as a Jew, was permitted to wear a
yarmulke. Leiter’s argument prohibits this special right, but his
alternative is unworkable. The gang members could claim that their deep
commitments of loyalty to each other create a conscientious duty to wear
gang regalia. If everybody’s conscience must be respected, then
nobody’s will be, for order and safety must be preserved.
* * *
The Arabic word dhimmi means non-Muslim. Under Muslim rule,
non-Muslims were allowed to survive only insofar as they accepted Muslim
dominance. Our times are not those times, and the secularism of the
Nones is not Islam. Nevertheless, I think many powerful forces in
America would like to impose a soft but real dhimmitude. The
liberal and libertarian Nones will quarrel, as do the Shi’a and Sunni,
but they will, I think, largely unify against the public influence of
What can be done to prevent them from succeeding?
First and most obvious—defend religious liberty in the courts.
Although I have depicted deep cultural pressures that work against
religious liberty, we live in a society governed by the rule of law.
Precedent matters, and good lawyering can make a substantive difference.
Second—fight against the emerging legal theories that threaten to
undermine religious liberty. This is a battle to be carried out in the
law schools and among political theorists. For decades, legal activists
on the Left have been subsidized by legal clinics and special programs
run in law schools. Defenders of religious liberty need to push back.
Third—fight the cultural battle. Legal theory flexes and bends in
accord with the dominant consensus. This Brian Leiter knows, which is
why he does not much worry about the current state of constitutional
law. He goes directly to the underlying issues, which concern the role
of religion in public life.
We must meet the challenge by showing that religion is indeed
special. Religious people are the most likely Americans to be involved
in civic life, and the most generous in their charitable contributions.
This needs to be highlighted again and again. Moreover, we need to draw a
contrast with the Nones, who tend to outsource their civic
responsibilities and charitable obligations to government in the form of
expanded government programs and higher taxes.
There is another, deeper argument that must be made in defense of
religion: It is the most secure guarantee of freedom. America’s
Founders, some of them Christian and others not, agreed as a matter of
principle that the law of God trumps the law of men. This has obvious
political implications: The Declaration of Independence appeals to the
unalienable rights given by our Creator that cannot be overridden or
taken away. In this sense, religion is especially beneficial. As Popes
John Paul II and Benedict XVI both emphasized, it gives transcendent
substance to the rights of man that limit government. Put somewhat
differently, religion gives us a place to stand outside politics, and
without it we’re vulnerable to a system in which the state defines
everything, which is the essence of tyranny. This is why gay marriage,
which is sold as an expansion of freedom, is in fact a profound threat
Finally, we must not accept a mentality of dhimmitude. The
church, synagogue, and mosque have a tremendous solidity born of a
communion of wills fused together in obedience to God. This gives people
of faith the ability to fight with white fury for what they perceive to
be a divine cause, which is of course a great force for
righteousness—but also a dangerous threat to social peace, as early
modern Europe knew only too well.
In conclusion, I want to focus not on fury but on the remarkable
capacity for communities of faith to endure. My wife’s ancestors lived
for generations in the contested borderlands of Poland and Russia. As
Jews they were tremendously vulnerable, and yet through their children
and their children’s children they endured in spite of discrimination,
violence, and attempted genocide. Where now, I ask, are the Russian and
Polish aristocrats who dominated them for centuries? Where now is the
Thousand Year Reich? Where now is the Soviet worker’s paradise? They
have gone to dust. The Torah is still read in the synagogue.
The same holds for Christianity. The Church did not need
constitutional protections in order to take root in a hostile pagan
culture two thousand years ago.
Right now the Nones seem to have the upper hand in America. But what
seems powerful is not always so. If I had to bet on Harvard or the
Catholic Church, Yale or the Mennonites in Goshen, Indiana, the New York Times
or yeshivas in Brooklyn, I wouldn’t hesitate. Over the long haul,
religious faith has proven itself the most powerful and enduring force
in human history.
Copyright © 2011 Hillsdale College. The opinions expressed in Imprimis
are not necessarily the views of Hillsdale College. Permission to
reprint in whole or in part is hereby granted, provided the following
credit line is used: “Reprinted by permission from Imprimis, a
publication of Hillsdale College.” SUBSCRIPTION FREE UPON REQUEST. ISSN 0277-8432. Imprimis trademark registered in U.S. Patent and Trade Office #1563325.