Religious liberty: More or less?
By J. Brent Walker
Heading into my 28th year at the Baptist Joint Committee for Religious Liberty and on the cusp of retiring as its executive director, I’ve been thinking quite a bit about the state of religious liberty, particularly how church-state relations have changed over the past quarter century. My snapshot conclusions are as follows:
We have lost ground when it comes to the First Amendment’s protection against the establishment of religion. This retrogression is evidenced both in the increase in state-sponsored religious exercises and endorsements and in government funding for church ministries and religious education.
We have been up and down on protecting the exercise of religion — losing ground as a matter of constitutional interpretation, but making gains through legislation, such as the federal Religious Freedom Restoration Act (1993), the Religious Land Use and Institutionalized Persons Act (2000), and state laws that faithfully reflect their provisions. Generally, the courts have interpreted these statutes robustly.
We continue to be on solid ground under the “church autonomy doctrine,” which was designed to prevent the government from meddling in the internal affairs of houses of worship and to keep courts from adjudicating property and employment disputes. Indeed, the U.S. Supreme Court recently decided unanimously that antidiscrimination laws do not apply to the relationship between a religious body and its clergy.
In light of the current religious liberty landscape, what can we expect on the church-state front in the new administration?
One thing is indisputably true about President-elect Trump: love him or hate him, he is unpredictable. Based on positions he espoused during the campaign and in its aftermath, I am preparing for the worst, but hoping for something better.
President-elect Trump’s campaign rhetoric was most troubling. The gravamen of many of his pronouncements was hostility to Islam and Muslim immigration. He pandered to and exploited anti-Jewish stereotypes. He embraced measures that seemed to protect the exercise of religion but without careful attention to balancing the rights of others. This can be seen in his support for the First Amendment Defense Act, which purports to protect religiously based objections to same-sex marriage and gay rights, without the careful balancing of interests called for in the Religious Freedom Restoration Act. Finally, he has supported changing the tax law that bans electioneering by churches with tax-exempt dollars. President-elect Trump’s position on these and other issues shows a flimsy understanding of the plush religious pluralism in the United States, the importance of accommodating religious exercise without prejudicing the rights of others, and the indispensability of church-state separation.
I am also concerned about Vice President-elect Mike Pence. I don’t know that Mr. Trump cares all that much about religion or religious liberty. Gov. Pence appears to care about both, and he may have a profound influence on the new administration’s church-state policies. He is inattentive to Establishment Clause values, embracing vouchers for religious education. Also, on the free exercise front, he pushed for the infamous Indiana religious liberty bill. The timing and statutory language suggest he was motivated by a desire to set up a firewall against the advance of LGBTQ rights and same-sex marriage, while purporting to protect religious liberty more broadly.
Finally, the new administration’s prospective Supreme Court nominees are of particular concern. The published list of potential nominees makes clear that President-elect Trump intends to nominate judges in the mold of Justice Clarence Thomas and the late Justice Antonin Scalia. This is bad news for religious liberty. Justice Scalia thought government should be able to promote religion. He also led the charge to gut the First Amendment’s Free Exercise Clause of any meaningful protection in the Native American peyote case. Justice Thomas thinks the Establishment Clause is all but superfluous, and he was the sole dissenter in the recent case upholding religious garb in the workplace.
This might sound bleak, but Mr. Trump is always full of surprises. I’m willing to give him the chance to do what is right. In the meantime, the Baptist Joint Committee will keep a close eye on the new administration to make sure it respects constitutional safeguards ensuring religious liberty for ALL and upholds the separation of church and state.
J. Brent Walker, an ordained minister and a member of the U.S. Supreme Court Bar, was executive director of the Baptist Joint Committee for Religious Liberty, Washington, D.C., 1999–2016.