Threats to Religious Freedom, at Home and Abroad (A BCC Discussion)

It is our duty to raise our voice for the voiceless.”  ~Kristina Arriaga, United States Commission on International Religious Freedom (May 17, 2017).

Last week, the United States Commission on International Religious Freedom (“USCIRF”) hosted a discussion on their most recent annual report, which details the “countries of particular concern” regarding religious freedom.  The State Department periodically issues a similar International Religious Freedom Report.  As does the Pew Research Center on Religion & Public Life.

The international threats to religious freedom are serious.  Although colloquial use of “religious freedom” varies, encompassing a wide variety of public and private actions that in some way implicate religion, I propose limiting our discussion to a more precise definition.  Religious freedom is violated by official government action targeting the peaceful expression of religious belief.

Under that definition, I view the following as the largest international concerns:

  • Religious genocide.  ISIS is murdering religious dissidents in Syria; the recent Darfur Genocide in Sudan had religious elements.
  • The refugee crisis.  Refugees fleeing war-torn regions are often subject to official religious discrimination when seeking a new home.  For example, far-right leaders in Hungary and elsewhere in Europe are actively seeking to oppress Islam.
  • Religious registration requirements.  Many countries use religious reporting requirements as a tool to identify and suppress religious minorities.  China actively seeks to ferret out Falun Gong, Uighurs, and Tibetan Buddhists – even going so far as to require “reincarnation permits.”  And Russia recently banned Jehovah’s Witnesses as extremists.
  • Blasphemy and apostasy laws.  Speaking out against prevailing religious beliefs can result in imprisonment and physical violence.  Most recently, Indonesia imprisoned the Christian governor of its capital city because he publicly stated that Muslim clerics were misinterpreting a verse from the Qu’ran.
  • Criminalizing or censoring public religious expression.  The best-known example is that France bans the wearing of hijabs, burkinis, and other “conspicuous religious symbols.”

In the United States, the First Amendment, along with the Religious Freedom Restoration Act and other laws, robustly protect religious freedom.  Despite this, state-sanctioned attacks on religious freedom continue to crop up.  In my opinion, the largest domestic religious freedom threats are the following:

  • Enforcement of the “Muslim Ban” Executive Orders.  As Sally Yates said this week, “The facts reflected that this really was an attempt to make good on the president’s campaign promise of a Muslim ban….[A]s the Department of Justice on something as essential as religious freedom, I couldn’t in good conscience send our DOJ lawyers in to make an argument that wasn’t grounded in the truth.” Even though the Executive Orders have been struck down for now, they may yet resurface.  Moreover, there are indications that more subtle and ad-hoc religious ideology tests are already being contemplated or used by immigration and border officials.
  • Denial of Zoning and Construction Permits.  In 2000, Senator Orrin Hatch led the charge to pass a law intended to prevent religious discrimination by local zoning commissions.  Despite this, official opposition to churches, mosques, and synagogues continues.  Sometimes this is because communities don’t want to lose tax revenue, other times it’s because they oppose soup kitchens which might bring the homeless into their neighborhoods, and all-too-often it is because of blatant discrimination. As one prominent example, officials in Murfreesboro, TN engaged in extensive efforts to block the expansion of a mosque.  In this climate of community controversy, the mosque was repeatedly subject to vandalism and arson.
  • Government censure for religious opinions.  This is a bit of a catch-all.  But particularly in “liberal” centers, there have been worrying trends to censor the peaceful expression of religious opinions as “hate speech.”  As recent examples, the City of Denver nearly blocked Chick-Fil-A from opening an airport location because its Christian owner had at one point opposed gay marriage.  And public universities are increasingly adopting “speech codes” which are enforced to discipline students who voice religious opinions.

With that prompt, let me open the BCC floor for discussion.

Do you disagree with my definition of religious freedom?
Are their categories or examples you would add?
What do you see as the biggest areas of concern, at home and abroad?
What can we, as individuals, do to promote religious freedom?

* * *

STEVE: If we’re talking actual threats to religious freedom, I would add the gradual elimination of Coptic Christianity in Egypt and in other areas in the Middle East. This is happening at the hands of ISIS but is being bolstered by government action in some instances. If Christians really care about religious freedom, why don’t we see much discussion of this?

JARED: How do we promote pluralism and tolerance? I think it starts with the golden rule. Any protection I would claim for my own religion I must be willing to grant to the least popular. Any protection I would deny to another religion, I must be willing to accept that denial for my own church. That’s been the failure of U.S. conservatives.

SAM: I’d probably go even further. To the extent we want to promote religious tolerance, I think we need to get over ourselves. We need to focus on protecting the rights of our neighbors, and especially our neighbors who have less cultural influence and power than we do. The best way to do that is at the local level. We should be at the forefront of arguing against discriminatory zoning that tries to keep the mosque out.

Here in the U.S. there are enough powerful and influential Mormons that we face very limited discrimination. We also have the institutional know-how and resources to navigate zoning and other local-governmental bureaucracies. But we have neighbors of other religions who lack the influence, lack the resources, and lack the cultural competence we can bring to bear. We need to help them.

STEVE:  I believe the starting point is a robust separation of church and state.  But even a very secular state can be snookered by racism and persecution of minority religion.  The ‘laicete’ policy in France has been a disaster, and mostly enforced to oppress minorities.  People wear crosses all the time without reproof, but a hijab will get you kicked out of school. I don’t think we can ignore the interplay between religion and racism and how one is used as a shield for the other in church-state politics.

MICHAEL: Steve is absolutely correct about the separation of Church and State. Mormons and evangelicals are frequently taught that “secularism” is a bad thing and means something like “state-sponsored atheism.” As most of the world understands it, though, a secular government is one that takes no position on religion, either to help or hinder it.

Internationally, I think that our best policy is to define secularism clearly and press for its adoption wherever possible. In places like Saudi Arabia, where secularism is never going to happen, we should push the governments more towards secular principles, creating as much distance between Church and State as we can.

In his Memorial and Remonstrance, James Madison proposed a pretty clear criteria and rationale for what we would now call “secularism,” which he called “non-cognizance of religion.” Under this standard, the state does not acknowledge or interact with religions as religions. Religions have neither more nor less status than any other group of people organized to pursue a shared interest. A vast majority of our Church-State controversies in the United States could be resolved with a straightforward application of this test.

Those calling for “religious freedom” need to stop trying to use the government to favor their position and disadvantage others. Religious leaders need to acknowledge that official state non-cognizance of religion is a prerequisite to religious freedom in any meaningful sense.

SAM: One other thing I think we can – and should – do is articulate a reason why religious freedom is important. Some people argue there’s nothing special about religious liberty that couldn’t be appropriately subsumed by a broader “freedom of conscience” idea. It’s not instantly apparent why religion deserves special treatment.

CAROLYN:  About 25 years ago Jay Sekulow (a First Amendment lawyer) had the brilliant realization that at the end of the day, freedom of religion is mostly just freedom of speech and freedom of assembly.  The ability to wear a cross or hijab in public, or criticize a verse of the Bible or Qu’ran, or gather a group to do yoga in a local park, are really more about speech itself than the “religious” nature of the speech.  The same protections would apply to wearing anti-war t-shirts, criticizing political leaders, or gathering in a park for a flash mob protest dance.

In my view, “religion” as religion nonetheless deserves special treatment because it has so many different facets. Religion is more than just any one act of speech. Religion is (to channel Clifford Geertz) an entire cultural system – “a system of symbols which acts to establish powerful, pervasive and long-lasting moods and motivations” for individual and group behavior.

As described perfectly by USCIRF and its former Mormon chair, Katrina Lantos-Swett, promoting religious freedom promotes all other civil rights. If a society can embrace religious freedom, then it is strong enough to protect minorities, tolerate strong differences of opinion, celebrate diversity, and prohibit discriminatory violence across the board.

SAM:  The people who have influenced me on this point acknowledge that religion is an imperfect category on which to overlay particular rights. In some ways it’s overbroad and in others too narrow. But religion is a good enough category, because it broadly captures beliefs and practices we want to protect. While there are some tough questions at the margins, “religion” is a category we generally understand. 

MICHAEL: In my archetypal perfect world, religion would exist on exactly the same terms as any other organization, with the question of “religious practice” never coming up.

But the fact is that religions sometimes require (or, at least, really, really want) religious-specific exceptions. Catholic opposition to the Obama administration’s requirement that insurance providers provide contraception coverage, on the grounds that it interfered with free exercise, is the most prominent recent example of this.

STEVE: The recent history of religious freedom in the United States is not the targeting of religion by the government; it’s the opposite. Religions (especially Christians) are asking the government for special benefits.

MICHAEL: I agree. Our vocabulary for “religious freedom” does not make very good distinctions between the government targeting a religion for disfavor, versus the government simply not providing religious exemptions for things that are required of everyone else.

CAROLYN: Here’s the thing about religions requesting Special Snowflake treatment generally.  Legal accommodations are necessarily made through force of law. And Congress is more inclined to grant exemptions to religions they like.

This is the crux of my disagreement with Justice Scalia in Smith (the 1990 case saying that the Constitution doesn’t protect Native Americans using the drug peyote in their worship).  He basically says: All religions have to comply with all ordinary laws. But if your religion is being harmed by a neutral law then you can lobby the government for an exemption. I find that fundamentally unfair. Only familiar and majoritarian religions will have the lobbying power to make that happen.

JARED: That can’t be overemphasized.

SAM: But most accommodation requests aren’t Special Snowflake requests. It’s hard (for me, at least) to argue against an accommodation for an Orthodox Jewish Air Force officer who wears a yarmulke in violation of Air Force regulations.

CAROLYN: There are a lot of exemptions – like wearing yarmulkes – we all agree on. Because they’re harmless.  But the big fight is what to do about exemptions that harm non-religious third parties? That’s the crux of the battle over the contraception cases. The Catholics are asking for a benefit that harms their religiously dissenting students and employees.

Or to take a more mild example, what about religious holidays?  My Establishment Clause friends and I argue, for example, that all Sunday-Store-Closing laws are a benefit given to conservative Christians that harms Jews/Muslims who have different holy days. Same argument for Christmas being a federal holiday and Yom Kippur not being one.

STEVE: Christmas is an inescapably Christian and religious holiday, regardless of how popularized it has become.  Christmas as a federal holiday violates the Establishment Clause on some level.  Sunday-Closing laws similarly.

MICHAEL: I feel comfortable arguing that Christmas is a perfectly secular celebration whose iconography has been influenced, more or less equally, by various Christian and pagan traditions but that can now be celebrated regardless of religious belief or practice.

STEVE:  I think this discussion on holidays and exemptions has already shown how un-freedomish American discussions of Religious Freedom actually are.  Meanwhile in other countries, Christians are being blown up in Egypt and political opponents are being jailed for their beliefs.  What’s the point of America’s obsession with religious freedom when our stakes are just so much lower?

The last time the U.S. government specifically targeted religion, it was the Muslim Ban.  What was time before that?  Catholics will argue it was the contraception mandate, but I think that’s a loser of an argument. It’s an exemption.

What about before that?  When was the last time a major religious freedom came to the Supreme Court, alleging government suppression of religion?  I think you probably need to go back to Church of the Lukumi Babalu Aye v. Hialeah (1993).  That’s the case where a Florida town religiously gerrymandered their zoning to stop a Santerian church from engaging in animal sacrifice – while the kosher meat-packing plant in town was allowed to keep operating.

CAROLYN: Amen to that.  Religious freedom in America feels like an ivory tower academic debate over corner cases rather than one where life and liberty are on the line.

STEVE: Although, I don’t know whether our relatively low-stakes environment is because we have true freedom of religion, or because America has become a generally homogeneous and areligious society where it just doesn’t matter that much.  I say that because we still oppress religions we don’t like whenever we can.

CAROLYN: Woah, I’m going to disagree with that.  Yes, individuals in America come up with reasons to oppress religions they don’t like. The 50% increase in hate crimes against Muslims in the age of Trump says everything we need to know about that.  But the number of religions we don’t like and “oppress,” now, is so much smaller than throughout our history. The shift in anti-Catholic animus over the last century alone proves that point.

I give almost exclusive credit for that shift to the Constitution and official government actions that protect religion. We have cultivated a civic society that celebrates freedom.

JARED: No question we’ve progressed. I’ll be the first one to celebrate constitutional protections and the role they play. But I wonder if we flatter ourselves too much to attribute that to our institutions.

It’s sort of a chicken-and-egg question. If you have a society that honors pluralism and tolerance, and that values and celebrates people living their own various religious lives, people are largely going to be free. But if you have a society that gives in to racism, xenophobia, and religious bigotry, then even with institutional protections, you’ll still get oppression.

Our institutions only provide the means to protect religious freedom, not the will. If the will isn’t there, the institutions fall short. And if the will is there, other institutions can work just as well.  Despite the existence of an established church in the UK for example, I don’t think UK citizens really have less religious freedom than US citizens.

CAROLYN: UK is a great example.  UK’s solution to religious pluralism has been to co-establish churches, rather than dis-establish the Anglicans.  So Catholic schools, Jewish schools, and even a bevy of Muslim schools also receive official state funding.  In a society that has the will to respect religious freedom, the existing institutions will figure out how to do it.

By contrast, in college I wrote a paper on religious freedom in Latin America.  One afternoon I wandered over to a professor’s office whose dissertation had been about Pentecostals in Honduras (or something similar) to ask for some resources.  I mentioned that I had already started by reading in Spanish a handful of Latin American Constitutions and their Bills of Rights.

“I can’t think of anything more irrelevant to your research,” my professor responded, “then what the Honduran Constitution says.”

JARED: Latin America, man. Rule of law just isn’t a thing like we take for granted.

CAROLYN: Which is precisely why the “Muslim Ban” Executive Orders are #1 on my domestic threats list.  (And related concerns in Europe rank highly, too.)  On the surface it is a fight about religious freedom, but more fundamentally it’s about protecting the rights of all minorities, and the rule of law.

Comments

  1. Mark B. says:

    “We also have the institutional know-how and resources to navigate zoning and other local-governmental bureaucracies.”

    And, as Exhibit No. 1 in support of that proposition, I’d like to submit this lovely photograph of the White Plains New York Temple:

  2. Right, Mark, or cf the struggle for a steeple in Massachusetts.

  3. christiankimball says:

    Nice discussion. Most of what I would want to say got said by someone. Regarding the relatively low stakes in the U.S., I’m sure some will disagree generally, but I would just make the observation that some significant part of the religious freedom debate worldwide is about the “right” to discriminate on religious grounds what would otherwise not be permitted to discriminate. At one extreme it’s the ‘right’ to speak out or criticize those who do not believe or follow the same principles. At the other extreme (way over) it’s genocide. But the underlying philosophy is in both cases “they should believe like I do” and if not “death to the infidels.” I think the proselytizing one-and-only-true Mormon world ought to address that concept and recognize a certain amount of complicity.

  4. Mark, all the institutional know-how in the world doesn’t guarantee that the church will get its way, but frankly, how many church building projects (in the US, at any rate) run into any trouble? Because White Plains was dropped almost fifteen years ago in favor of Manhattan.

    And certainly the church has certainly become savvier in recent years—in Chicago, when it decided to build a building just north of the Loop, it engaged former mayor Daley’s brother’s law firm. And frankly, White Plains underscores that point: the church is resource- and knowledge-rich enough that, when getting White Plains built ultimately proved costlier than it wanted, it found a better location.

  5. Thanks Carolyn, for putting this together. On the ability to navigate unfamiliar bureaucracies, that’s a problem, but isn’t on that’s limited to religious issues. That’s a problem throughout the legal system, from pro se civil litigants getting outmaneuvered by experienced attorneys to criminal defendants pleading out because the PD is too overworked to see real issues worth fighting, to less educated people missing out on tax breaks and other benefits because they don’t know how to handle the paperwork. It’s less a question of religions that are popular having the ability to stand up for themselves while unpopular ones don’t (which is still a problem) and more the general problem of a legal a bureaucratic system that largely operates on the shaky assumption that people know their rights and how to claim them (Miranda is the obvious exception), which is usually not true, especially as you go lower on the socioeconomic scale. Westboro Baptist, for example, is anything but popular, but is fairly sophisticated at vigorously claiming its first amendment rights.

    Which is why I think Carolyn is right that ultimately, it’s a question of vigorous protection of minority rights and rule of law.

  6. John Mansfield says:

    White Plains and Boston were taken up in 1995 after the failure of the first proposed temple in Hartford. The second was announced in 2010, eighteen years after the first’s announcement. Between the two announcements, temples had changed from being regional facilities to being much smaller structures serving a much smaller number of people, which change may be reflected upon in connection with the topic under consideration.

  7. J. Stapley says:

    Can someone give me a quick summary of the legal justifications for discriminiation? E.g., I imagine that the DNC can discriminate in its hiring practices against vocal RNC members (but I’m not sure?). How do “protected classes” fit in this, and how do you become one?

  8. Here’s a very broad answer, J:

    (1) Discrimination by private parties is, by default, not illegal, unless there is a law that makes it illegal in a particular given context, like Title VII, or analogous state statutes, which make it illegal to discriminate in housing, employment, or public accommodations. So to partially answer your first question, in many cases you don’t need any justification at all for discrimination.

    (2) But even when those laws apply, not all discrimination is illegal. It’s only discrimination on the basis of race, religion, national origin, gender (and sometimes, depending on the jurisdiction, others, like sexual orientation or family status) that is potentially a violation. And this gets to your question about protected classes. The term “protected class” gets thrown around, but I don’t think it’s a very helpful term, because it’s not that some classes are protected and some aren’t, it’s that some bases of discrimination are legal and some are not. So for example, you can refuse to hire U of U graduates because they are U of U graduates, and you can refuse to hire Red Sox fans because they are Red Sox fans, and republicans because they are republicans, but you can’t refuse to hire Zoroastrians because they are Zoroastrians, women because they are women, or black people because they are black. So you could refuse to hire a black woman who is a Zoroastrian because she graduated from the U of U, or because she’s a Red Sox fan, but just not because she is a woman, because she is black, or because she is a Zoroastrian. Political affiliation is not usually a forbidden basis of discrimination (there may be some states that include it, I don’t know), so that’s why in your DNC example, there’s no justification needed to refuse to hire RNC members.

    (3) There are exceptions to anti-discrimination statutes, which gets the rest of your question about legal justifications. The so-called ministerial exception to Title VII is one, which says, in a nutshell, that churches can discriminate on the basis of religion. There’s also a potential defense that says that you can avoid liability under these statutes if the nature of the employer’s business requires it. So if you operate a hooters, for example, you can refuse to hire men as waiters because the nature of your business is such that your customers are paying to be served by women. Or, under Title VII, an employer can refuse to accommodate an employee’s religious practice if the accommodation would impose an “undue burden” on the employer (whether refusal to accommodate is the same as discrimination is contested, as a philosophical matter, but Congress defined discrimination on the basis religion to include refusal to accommodate a religious practice under certain circumstances). It’s all more complicated than that, but that’s the basic overview.

    (4) The rules are different for governments than for private parties. One important difference is that some bases of discrimination that are legal for individuals aren’t for governments. Free speech and free association, for example, mean that in most cases you can’t be disciplined by a government for political opinions or affiliations, so while the RNC can refuse to hire democrats, a government might not be able to do so for certain non-political positions.

    (5) To further answer your question about legal justifications for discrimination, but on the government side, when it comes to discrimination of prohibited bases (race, religion, gender) generally speaking, governments can justify such discrimination if they can show that it is the least restrictive means to accomplish a compelling government interest. So, for example, states can take race into account when redrawing voting districts, if they are doing so in order to comply with the voting rights act and remedy historical imbalances. Similarly, state universities can implement affirmative action programs to correct a historical racial imbalance.

  9. Carolyn says:

    @J Stapley: Your question, for the record, was basically “please summarize 50 years of 14th Amendment jurisprudence in a paragraph, thanks!” So don’t fault @JKC when he drones on!

  10. Yeah, sorry about that! I figured I could do it in a few quick lines. I was wrong!

  11. J. Stapley says:

    I knew I was asking for a big push-up, and appreciate the clear and useful response. Thanks!

  12. Christopher Cunningham says:

    Coercing individuals into violating their religious conscious absent a “compelling government interest” certainly is not the most pressing religious freedom issue in the world, but it’s a little cavalier to dismiss it as an “ivory tower academic debate.” These are real people faced with the choice to do what they believe is moral and providing for themselves.

    The trouble with Sekulow’s reasoning is that it’s rooted in the disastrous post-Employment Division v. Smith understanding of the free exercise clause. If the Sherbert standard was still in place (as it once again is federally and in 21 states) then there is a significant third leg to religious freedom–religiously motivated behavior–that his formulation leaves unaddressed.