"Come now let us reason together": restoring religious freedom in America and abroad.

• Author: Witte, John, Jr.

1. POLITICAL CHALLENGES TO RELIGIOUS FREEDOM

   American religious freedom used to be "taken for granted." It's now "up for grabs." So writes distinguished religious liberty scholar Paul Horwitz. (1) Until a generation ago, the opposite was true. In 1993, a virtually unanimous Congress passed the Religious Freedom Restoration Act (RFRA), signed by President Clinton. (2) This was a firm national rebuke of the 1990 Supreme Court case of Employment Division v. Smith (3) that had greatly weakened the First Amendment Free Exercise Clause. Four years later, the Court struck down the application of RFRA to the states. (4) In 2000, Congress stood up again and passed the more targeted Religious Land Use and Institutionalized Persons Act (RLUIPA), also signed by President Clinton, a law that was binding on federal and state governments alike and enforceable in the federal courts. (5) Twenty-one state legislatures eventually passed their own state religious freedom statutes, mostly modeled on the federal act. (6) And both Congress and the states added a number of other discrete protections for religion, giving courts some of the tools they needed to protect religious freedom, even without a strong First Amendment. (7)

   So matters stood a generation ago. But in the ensuing years, these special legislative protections of religious freedom have come under increasing attack. Several states of late, including relatively conservative bastions like Georgia (8) and Indiana, (9) have buckled under massive lobbying and media pressure, and have scrapped or vetoed their new or revised RFRA plans; other states have started to limit the application of their existing RFRAs. (10)

   There are many causes for this change of legislative heart. First, highly publicized religious pathologies have made it more difficult to sympathize with the cause of religion and religious freedom. Particularly, the rise of Islamicism, and the horrors of 9/11, London's 7/7, Fort Hood, Madrid, Paris, San Bernardino, Brussels, Orlando, Nice, and more have renewed traditional warnings about the dangers of religion in general and triggered fresh waves of "anti-Shari'a statutes" (11) and harsh treatment of Muslims by regulators and courts. (12) Leading political figures now advocate a '"total and complete' ban" on Muslims entering the United States (13) and urge that the United States should "test every person here who is of a Muslim background, and if they believe in sharia, they should be deported." (14) Second, the media narrative has turned more against legislative protections. For example, in 2006, The New York Times ran a sensational six-part expose describing the "hundreds" of special statutory and regulatory protections, entitlements, and exemptions that religious individuals and groups quietly enjoy under federal, state, and local laws, despite all the loud lamentations about the Smith case's truncation of religious freedom. (15) Third, the Catholic Church was rocked by an avalanche of news reports and lawsuits about the pedophilia of delinquent priests and cover-ups by complicit bishops--all committed under the thick constitutional veil of religious autonomy. (16) Fourth, Evangelical megachurches faced withering attacks for their massive embezzlement of funds, and the lush and luxurious lifestyles of their pastors--all the while enjoying tax exemptions for their incomes, properties, and parsonages. (17)

   But even bigger challenges of late have come with the new culture wars between religious freedom and sexual freedom. (18) The legal questions for religious freedom are mounting. Must a religious official with conscientious scruples marry a same-sex or interreligious couple? How about a justice of the peace or a military chaplain? Or a county clerk asked to give them a marriage license? (19) Must devout medical doctors or religiously chartered hospitals perform abortions, or give assisted-reproduction procedures to unwed mothers, contrary to their deeply held religious beliefs about marriage and family life? How about if they are receiving government funding? Or if they are the only medical service available to the patient for miles around? Must a conscientiously opposed pharmacist fill a prescription for a contraceptive or abortifacient? (20) Or a private employer carry medical insurance for the same prescriptions? What if these are franchises of bigger pharmacies or employers that insist on these services? May a religious organization dismiss or discipline its officials or members because of their sexual orientation or sexual practices, or because they had a divorce, abortion, or same-sex marriage? May private religious citizens refuse to photograph or cater a wedding, rent an apartment, or offer a general service to a same-sex couple whose relationship they find religiously or morally improper (21)--especially when state non-discrimination laws command otherwise? (22)

   These are only a few of the headline issues today, which officials and citizens are struggling mightily to address. Two recent 5-4 Supreme Court cases on point have only exacerbated the tension. In Christian Legal Society v. Martinez (2010), (23) sexual non-discrimination rights trumped religious freedom claims; in Burwell v. Hobby Lobby (2014), (24) religious freedom trumped reproductive freedom claims. (25) The culture wars have only escalated as a consequence. "Each side is intolerant of the other; each side wants a total win," Douglas Laycock writes, after a thorough study of these new culture wars. (26) "This mutual insistence on total wins is very bad for religious liberty." (27) And with easy political talk afoot about repealing unpopular statutes--not just the Affordable Care Act--legislative protections for religious freedom appear vulnerable. Add the fact that both the Free Exercise and Establishment Clauses are now much weaker protections than they were before the 1980s, and it is hard to resist the judgment of leading jurist Mary Ann Glendon that religious freedom is in danger of becoming "a second-class right." (28)

2. ACADEMIC CHALLENGES TO RELIGIOUS FREEDOM

   That's exactly how it should be, say a number of legal scholars who have challenged the idea that religion is special or deserving of special constitutional or legislative protection. (29) Even if this idea existed in the eighteenth-century founding era--and that is now sharply contested, too--it has become obsolete in our post-establishment, postmodern, and post-religious age. Religion, these critics argue, is too dangerous, divisive, and diverse in its demands to be accorded special protection. (30) Freedom of conscience claimants unfairly demand the right to be a law unto themselves, to the detriment of general laws and to the endangerment of other people's fundamental rights and legitimate interests. Institutional religious autonomy is too often just a special cover for abuses of power and forms of prejudice that should not be countenanced in any organization--religious or not. Religious liberty claims are too often proxies for political or social agendas that deserve no more protection than any other agenda. Religion, these critics thus conclude, should be viewed as just another category of liberty or association, with no more preference or privilege than its secular counterparts. Religion should be treated as just another form of expression, subject to the same rules of rational democratic deliberation that govern other ideas and values. To accord religion any special protection or exemption discriminates against the nonreligious. To afford religion a special seat at the table of public deliberation or a special role in the implementation of government programs invites religious self-dealing contrary to the First Amendment Establishment Clause. We cannot afford these traditional constitutional luxuries. "The perils of extreme religious liberty" are now upon us. (31)

   University of Chicago law professor Brian Leiter is a leading exponent of such critical views of religious freedom. In his widely read title, Why Tolerate Religion? (2013), this distinguished legal philosopher, with expertise in the iconoclast views of Friedrich Nietzsche, launches an iconoclastic attack on religious freedom--especially the notion that religious practitioners sometimes deserve exemptions from general laws that are not available to nonreligious citizens. Leiter argues that "there is no apparent moral reason why states should carve out special protections that encourage individuals to structure their lives around categorical demands that are insulated from the standards of evidence and reasoning we everywhere else expect to constitute constraints on judgment and action." (32) Government must be studiously neutral in its devodon to "principled" toleration; it is "unfair," "arbitrar[y]," impractical, and even "anarch[ic] " to give special accommodations, exemptions, immunities, or protections to religion or to religious claims of conscience. (33) Doing so would be "a morally objectionable injury to the general welfare" and would "impose burdens on those who have no claim of exemption." (34) Indeed, Leiter muses whether there may be "reason to worry that religious beliefs, as against other matters of conscience, are far more likely to cause harms and infringe on liberty?" (35) Consider religion's track record of late in abridging the fundamental rights of others to reproductive freedom, marital equality, or sexual liberty. Or consider that "religious believers overwhelmingly supported George W. Bush, widely considered one of the worst presidents in the history of the United States, whom many think ought to be held morally culpable both for the illegal war of aggression against Iraq as well as the casualties resulting from domestic mismanagement." (36) This might well provide "the basis of an argument for why there are special reasons not to tolerate religion" at all--although, Leiter allows, that would require empirical proof that...