Evangelical Christians go from “moral majority” to persecuted minority.
Adapted from Sacred Liberty
“Christianity is under tremendous siege,” said Donald Trump during the 2016 presidential campaign. “The Christians are being treated horribly because we have nobody to represent the Christians.”
Trump pledged that with his election, “the Christians” would at long last have a champion. “As long as I am your president no one is ever going to stop you from practicing your faith or from preaching what’s in your heart.”
Trump even claimed that he had been persecuted for his deeply held faith. When asked why his businesses had been audited by the Internal Revenue Service, he didn’t mention the voluminous evidence of shady practices and instead suggested it was “Maybe because of the fact that I’m a strong Christian.” After all, he reminded us, he has “a great relationship with God.”
Trump’s Joan of Arc positioning resonated because conservative evangelicals believe they are victims of a rampant persecution. “Christians have been singled out for discrimination,” explained David Limbaugh in his book Persecution. FOX News personality John Gibson argued that there was a “liberal plot to ban” Christmas. The “war on Christianity is alive and well,” warned Glenn Beck. Religious leader Tony Perkins warned that your own family could be at risk: “Christians you know are targets . . . maybe Christians in your own home.” Mike Huckabee said the United States was moving toward a “criminalization of Christianity.” One report declared that in public schools, town squares, and pop culture, “hostility to religion in America is rising like floodwaters.” Never to be outdone, Pat Robertson explained: “Just like what Nazi Germany did to the Jews, so liberal America is now doing to the evangelical Christians. It’s no different. It’s the same thing.”
Are conservative Christians being reasonable or paranoid? This chap- ter sorts through what has become a confusing and politicized debate and makes these related arguments:
- There is a germ of truth in the idea that there is growing hostility toward religion.
- But the notion that we are in the midst of a horrible wave of hostility against American Christians is untrue. Indeed, the profligate use of the term “religious freedom” by some Christian leaders and conservative media outlets, often for partisan or commercial purposes, threatens to bleach the phrase of its meaning.
- From a legal perspective, religion has never been more privileged.
- The loss of demographic dominance for white Protestants, though a cause of much angst, will ultimately prove to be a great blessing for evangelicals. We have finally arrived at the purest form of Madison’s “multiplicity of sects”—a religious landscape so fragmented that no denomination is big enough to dominate. That will safeguard religious liberty for Christians and for everyone else.
Fear of Religion
We were sitting in the audience at my son’s elementary school concert in Brooklyn, New York, beaming at the sight of him up there in his white button-down shirt and khaki pants amid a lineup of singing cutie-pies. The class was belting out Don McLean’s “American Pie.”
Did you write the book of love
And do you have faith in God above
Everybody tells you so. . . .
Wait. “Everybody tells you so”? I could have sworn the lyrics were “if the Bible tells you so.” Did they really just cut a reference to the Bible out of “American Pie”? Yes, they did.
The incident, which somehow never made it to FOX News, nicely cap- tures a genuine shift in the place of religion in American culture. No, this was not a case of separation of church and state run amok. It’s a pri- vate school; they can do whatever they want. Nor was it a case of non- Christian animus against Christians. The school leaders were mostly Christian. They just figured it would be safer to gently excise a phrase that might offend. But it didn’t occur to them that deleting the “the Bible” might bother those who take scripture seriously. They assumed that the sensitivities needing protection belonged to secular people or religious minorities, not devout Christians.
Throughout the country, efforts to separate church and state have sometimes given religion a second-class status.
- The federal government ruled that student loan forgiveness could be provided to graduates taking a wide variety of public service jobs but not to those who become clergy.
- The Federal Emergency Management Agency refused to provide financial support to assist churches after devastating hurricanes in Texas.
- A group of atheists sued, unsuccessfully, to get the National September 11 Memorial & Museum to pull down a seventeen-foot cross that had been formed by steel beams left from the World Trade Center.
- A group of residents in Acton, Massachusetts, sued to block the state from using historic preservation funds to preserve old churches along with secular buildings.
These kinds of examples can make religious people feel under attack— especially given the broader demographic context. Sometime around 2013, according to Gallup surveys, the country passed a milestone that would have stunned its founders: less than half the population was Protestant. In 1964, Protestants made up 70 percent of the US population; by 2016, the number was 47 percent. The share describing itself as white evangelical Protestants is declining too, in one study falling from 23 percent in 2006 to 17 percent in 2017. And the future looks worse for evangelicals. Only 11 percent of young millennials (born 1990–1996) say they’re evangelical, compared with 35 percent of baby boomers.
At the same time, “nones” are on the rise. The percentage of people de- scribing themselves as atheists, agnostics, and people “not affiliated” with any religion jumped from 5 percent of Americans in 1972 to 23 percent in 2016. They’re not all secular: 48 percent of the “not affiliateds” pray regularly. Still, the percentage of Americans who believe religion does more harm than good is now significant, around 13 percent. That’s more than double the number of Jews, Muslims, Hindus, and Buddhists combined. And secularism is projected to grow, especially if immigration is curtailed. A stunning 39 percent of young adults between the ages of eighteen and twenty-nine say they are not affiliated with a religion. While the growth of non-Christians—Muslims, Buddhists, and Hindus—poses challenges, those groups might at least be counted on to support some religion in the public square. Not so for the “nones,” who may be irritated by believers strutting their stuff in public places.
So, while Protestants aren’t nearly as victimized as they think, they do face a new world in which they will be merely the largest religion rather than the utterly dominant one. Remember, for many evangelical Christians, as for other believers, religion is not merely about private worship. It is about living one’s life according to biblical values, including profess- ing their faith to others. As the public realms in which that is permissible shrink, it can feel as if freedom is contracting too.
Many conservative Christian leaders, politicians, and media celebrities have exploited those fears of victimization, regularly engaging in what might be called persecution inflation. Among the examples of “persecution” listed in Limbaugh’s book by that name was the time that a high school in Reno, Nevada, told members of its Bible club that they couldn’t hand out “Jesus Loves You” candy canes to other students. Had Limbaugh maintained a proper sense of perspective, he might have noted that (a) the public high school has a happily functioning Bible club and (b) the administrators ultimately overruled the decision.
FOX News pushed a story with the blood-boiling headline “VA Hospital Refuses to Accept ‘Merry Christmas’ Cards.” Actually, the hospital had decided that cards from strangers could not go straight to families with- out first passing through a committee of chaplains, who would make sure the appropriate messages got to the right soldiers. In No Higher Power, Phyllis Schlafly reported that “[President Barack] Obama’s Department of Veterans Affairs had banned any mention of Jesus Christ during burials at Houston National Cemetery.” Banned mentions of Jesus! That is quite the assault. In reality, the veterans’ agency had told staff that its employees could not read religious texts unless asked to do so by the family of the deceased. “Invoking the name of God or Jesus is not only allowed, it is common at VA National Cemeteries across the country,” said a spokes- man for the US Department of Veterans Affairs.
Let’s put these “attacks” on Christians into some in perspective. Of the 1,679 religiously based hate crimes catalogued in 2017 by the Federal Bureau of Investigation, 58 percent were against Jews, 19 percent were against Muslims, and less than 2 percent were against Protestants (with 10 percent against all Christians). There were 40 attacks on Protestants, compared with 1,266 against gays and lesbians. Yet because of the drum- beat from the conservative media and some Christian leaders, rank-and- file evangelicals view themselves as the most persecuted group. In 2017, 57 percent of white evangelicals said they face “a lot of discrimination,” compared with 44 percent who said Muslims do.
The effort to find, fight, and win a “war on Christmas” illustrates how a charge can have a grain of truth while also being mischievously exaggerated to stir rage, mobilize votes, or boost ratings. There have indeed been absurd instances of cities or individuals who, in their hyper attentiveness to the sensitivities of nonbelievers, have purged innocuous Christmas symbols. For instance, a member of the Parent-Teacher Association at an elementary school in Frisco, Texas, advised parents not to have Christmas trees or use the colors green and white. (The suggestion was quickly overruled.)
But these slights have been cast as part of a “war” to prevent Christians from practicing their faith. In outlining the “Liberal Plot to Ban the Sacred Christian Holiday,” John Gibson of FOX News claimed that “it’s no longer permissible to wish anyone Merry Christmas.” Mysteriously, despite the demise of Christmas, 90 percent of Americans celebrate the holiday and 25 million Christmas trees manage to insinuate themselves into homes and town squares every year—including the ninety-four- foot-tall Christmas tree at Rockefeller Center, a few hundred yards from Gibson’s office. In addition to massively overhyping the threat, the war on Christmas folks misstate the motives of those who say “Happy Holidays” instead of “Merry Christmas.” Some retail stores have shifted greetings to avoid alienating potential customers, a pragmatic market-driven decision. December also includes Hanukkah, Kwanzaa, and, occasionally, Ramadan. For all that conservative Christians talk about the Judeo-Christian heritage, the insistence on “Merry Christmas” mostly serves to exclude Jews from the sentiment. Conservatives sometimes confuse pluralism (or plain courtesy) with secularism.
In fact, the rage expressed on FOX News is not shared by most people on either side of the debate. Polls show that of those who prefer “Merry Christmas,” only 19 percent are “offended” by those who say “Happy Holidays.” Of those who like “Happy Holidays,” only 11 percent are offended by “Merry Christmas.” Most view it for what it actually is: an attempt to be slightly more inclusive, a moderate solution to a minor problem. Merry Christmas? Sure, say most Jews and Muslims. Happy Holidays? That’s nice too, think most Christians. Most Americans are secret Madisonians. Of course, the small number of people who are offended get the airtime.
Concocting a fake “war on Christmas” has one notable advantage. It’s easy to declare victory. Within weeks of Donald Trump’s election, his former campaign manager Corey Lewandowski declared that thanks to Trump, “Christmas” was “not a pejorative word any more.” In December 2017, Trump himself declared victory and claimed that, thanks to him, “Christmas is back, bigger and better than ever before.” A pro-Trump political action committee ran an ad on Christmas day that ended with a little girl standing in front of a Christmas tree, declaring, “Thank you President Trump for letting us say Merry Christmas again!”[ Making Christmas Great Again may stoke some Trump voters but it does not convey the spirit of the holiday or, frankly, show religious people in an appealing light.
When religious rights are infringed, the cause is often ignorance, not maliciousness. The courts and the legislatures actually allow quite a bit of church-state mingling, but those charged with administering the rules sometimes mistakenly think that more is forbidden. A study of 115 teachers in a southwestern school district found that when presented with church-state dilemmas that had been settled by courts, the teachers got it right only 55 percent of the time. They often erred on the side of restricting religious expression too much, but sometimes they erred the other way, indicating that the problem may not be a bigoted urge to harm Christianity but confusion about the law.
Nonetheless, leading conservatives have claimed that there is an assault on Christians’ freedom—led by liberal Democrats. They argued that the greatest opponent of religious freedom in history was Barack Obama, who instigated a “sweeping abuse of the American people’s religious liberty” (Phyllis Schlafly); was “waging war on religion” (Mitt Romney); and was attempting to “abrogate America’s priceless religious freedom in the name of leftist social engineering” (Congressman Trent Franks).
The most commonly cited example of Obama’s hostility to religious liberty—the Obamacare contraceptive mandate—was a misdemeanor described as a felony. The Obama administration issued a rule in 2012 stating that contraception needed to be covered by health insurance plans under the Affordable Care Act. They exempted houses of worship from the requirement but did not extend that exemption to religiously oriented nonprofits such as schools and hospitals. That was a thumb in the eye of religious groups, which would have been forced to pay for health coverage for their employees that might conflict with their religious teachings. Religious believers were right to jump on this, and progressives proved clueless, ethically and politically, when they dismissed these concerns as frivolous or bigoted.
But then something happened that neither side likes to fully acknowledge: the administration capitulated and issued a sensible new rule. Under the new proposal, religiously oriented organizations could also opt out of the contraceptive requirement, and the insurer would pay for the service instead. While some religious groups declared victory, most pronounced this to be a mere accounting gimmick and escalated their at- tack. They found the perfect plaintiffs, a kindly group of nuns called the Little Sisters of the Poor, who sued to block the rule. When he became president, Donald Trump issued an executive order reversing the Obama policy. He gave the Sisters the good news that he was thereby “ending the attacks on your religious liberty” and “your long ordeal.”
To understand how the term “religious liberty” was being misused, let’s consider the nature of the “attacks” on the Little Sisters of the Poor. The revised rule maintained that religious organizations did not have to pay for or provide coverage for contraception in the health insurance plans of their employees. They were excused from having to abide by that law. They merely had to inform the insurance company that they wanted out. They did not have to pay a penny toward providing contraception. The Little Sisters’ attorneys argued that it was nonetheless unconstitutional because they were still involved in the system as a whole; nonreligious employees at the organization could choose to get contraception (at their own expense); and the government could have found even less burden- some ways of exempting them. That’s it. The government imposed a tiny burden but maybe could have found a teeny tiny burden instead. Rather than an example of religious oppression—“the attacks against the Little Sisters of the Poor”39—the case was an arcane argument about the right ways to balance different interests. And to state the obvious, none of those ways bore any resemblance to the heinous violations of religious freedom that Catholics had themselves suffered in this country in the past—or that Muslims are experiencing in this country today.
Another case in which a small theoretical problem was exaggerated into a partisan war cry involved the so-called Johnson Amendment. As a senator, Lyndon Johnson added a rule to the tax code that tax-exempt nonprofits could not endorse political candidates. In the 1990s, the IRS revoked the tax benefit of the Church of Pierce Creek in Binghamton, New York, after it placed a newspaper advertisement saying it would be sinful to vote for Bill Clinton—and then told readers that donations to help defray the cost of that ad would be tax-deductible. The courts upheld the IRS position, but the rule proved so controversial that the IRS has rarely enforced it. Still, it’s theoretically possible that the government could remove a tax benefit on the basis of words spoken from a pulpit, so it became a cause among religious conservatives around 2016. In attempting to scale back the rule, President Trump falsely declared, “For too long, the federal government has used the power of the state as a weapon against people of faith, bullying and even punishing Americans for following their religious beliefs.”
The issue became significantly distorted, with activists and the press reporting that the rule prohibited churches from engaging in “political ac- tivity” or “political speech.” The law never prohibited houses of worship from expressing political views; it put a limit on their ability to endorse candidates. Even then, they could do it, but only if they sacrificed their tax benefit. What’s more, the rule applied to all nonprofits, including lib- eral groups such as the American Civil Liberties Union, not just churches. The Trump administration’s proposed solution would have made James Madison cringe. Someone who gives a campaign donation to a church that has endorsed a candidate would get a tax deduction, while those who give to a political party would not. That would strongly incentivize the creation of bogus religious institutions to act as financing vehicles for political campaigns, or entice existing religious organizations to become more partisan. The overhyping of a minor problem led to a solution that would do far more harm to the integrity of both our politics and our religious institutions than the ailment it was supposed to cure.
Donald Trump promised not only to protect Christians from persecution but also to restore their faith to dominance. “Other religions, frankly, they’re banding together and they’re using it. And here we have, if you look at this country, it’s gotta be 70 percent, 75 percent, some people say even more, the power we have, somehow we have to unify. We have to band together. . . . Our country has to do that around Christianity.” A Trump administration, he promised during the 2016 campaign, would be a Christian administration. “We’re going to bring [Christianity] back be- cause it’s a good thing. It’s a good thing. They treated you like it was a bad thing, but it’s a great thing.” A 2018 study by scholars Andrew Whitehead, Samuel Perry, and Joseph Baker found that the single most import- ant determinant of Trump support was whether voters expressed what the authors called “Christian nationalism”—the hope that Christians not only would be protected from persecution but also that they would re- claim their rightful role as the primary crafters of American values. The voters who supported him the most strongly responded affirmatively to all of these statements:
“The federal government should declare the United States a Christian nation.”
“The federal government should advocate Christian values.”
“The federal government should allow the display of religious symbols in public spaces.”
“The success of the United States is part of God’s plan.”
“The federal government should allow prayer in public schools.”
As they have felt less secure, many evangelicals have turned toward more pugnacious assertions of identity. Like other minorities, they some- times seem to be looking for opportunities to declare their defiant pride. This can be seen, oddly enough, in the prayers given at presidential in- augurations. From 1937 until 1993, presidents invited a multifaith cast of clergy to open the festivities.
In 1993, President Bill Clinton decided instead to have one minister, Billy Graham, who he thought could speak to the whole nation. Graham gave a broadly ecumenical prayer, closing “in the name of the one that’s called Wonderful Counselor, Mighty God, the Everlasting Father and the Prince of Peace.” At the next inauguration, Graham went softly Christian, invoking “the Father, the Son and the Holy Spirit.” But at George W. Bush’s inauguration in 2001, the honors went to Graham’s son Franklin, who called on the diverse crowd to “acknowledge You alone as our Lord, our Savior and our Redeemer. We pray this in the name of the Father, and of the Son, the Lord Jesus Christ, and of the Holy Spirit.” He intentionally offered a prayer to which many in the audience could not respond with “Amen.”
LGBT Rights and Religious Freedom
Many examples of the so-called war on religion involve clashes over lesbian, gay, bisexual, and transgender (LGBT) rights, in which Christians are supposedly discriminated against because of their biblically inspired opposition to homosexuality. “For this, we are despised,” evangelical leader James Dobson declared. “Jesus Himself told us we would be hated for what has been the ‘offense of the cross.’” Again, the recipe is one cup exaggeration, one cup disingenuousness, and a pinch of valid grievance.
The core argument: orthodox Christians believe, as a matter of faith, that homosexuality is wrong. Therefore, those who support LGBT rights are opposing the Christians’ religious beliefs. And if you’re opposing “Christian beliefs,” you’re hostile to Christianity, Christians, and religious freedom.
Many examples of supposed religious persecution are actually instances of policies advanced to promote tolerance of LGBT people. For instance, as evidence that Obama was warring against religion, Phyllis Schlafly cited his decision to extend federal benefits to same-sex partners of federal employees and the US Department of State’s “bizarre new mission . . . the promotion of gay rights abroad.” David Limbaugh argued that efforts to make gays and lesbians feel less stigmatized in public schools had the effect of persecuting Christians. He rejected the rationale for these steps, that bullying causes high rates of suicide among gay teens, suggesting instead that the deaths “might be linked to the lifestyle behaviors them- selves.” Beyond that, “the real civil rights issue here is the discrimination against students who uphold traditional religious beliefs about homo- sexuality.” When the Eastman Kodak Company had a “Coming Out Day,” an employee, Rolf Szabo, sent a broadly distributed group email saying he found this disgusting. He was fired for refusing to apologize, which Limbaugh cited as proof that Kodak had “encroach[ed] on Szabo’s right to religious freedom.”
Indeed, the term “religious freedom” has often become interchangeable with the right to oppose LGBT-friendly policies. A 2016 article on Christian Post, an evangelical website, listed ” Signs That America Declared War on Christianity.” Six of the seven related to fights between conservative Christians and local governments over LGBT rights.48 Being in favor of gay rights, or legal abortion, for that matter, apparently now means you’re anti-Christian. Former FOX News host Bill O’Reilly explained, “Some far-left people aided by a sympathetic media are now smearing Americans who oppose things like abortion and gay marriage. No question it is open season on Christians.”
The sloppy logic: to oppose a particular position held by some Christians is now considered to be against Christianity. Modern Christians have the right to oppose same-sex marriage but can’t at the same time persuasively claim immunity from criticism on the grounds that their beliefs have religious roots.
But in 2015, a real problem emerged for Christians opposed to same-sex marriage. The Supreme Court ruled, in Obergefell v. Hodges, that gay men and lesbians had a federal constitutional right to get married. Suddenly Christians who opposed gay marriage were fighting not merely a policy but rather a judicially protected right. There was now a logic to the idea that Christians could have less freedom to express their religiously held opposition to homosexuality as a result. For instance, the IRS in the 1970s had attempted to revoke the tax-exempt status of Bob Jones University because it violated anti-discrimination rules by banning interracial dat- ing. Couldn’t the government now take a similar posture against Chris- tian schools that opposed same-sex marriage? When Justice Samuel Alito asked that question of the solicitor general of the United States, Donald Verrilli, his answer did not exactly reassure religious conservatives.
Justice samuel alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?
solicitor general verrilli: You know, I—I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I—I don’t deny that. I don’t deny that, Justice Alito. It is—it is going to be an issue.
Part of the difficulty with the issue of same-sex marriage is the speed with which public opinion shifted. Same-sex marriage was considered a fringe idea even in the LGBT communities up through the 1990s. Barack Obama publicly opposed it until 2012. Religious beliefs usually take centuries to evolve. With Obergefell, same-sex marriage passed from marginal to acceptable to required within two decades. For conservative Christians, the ground fell out underneath them. Ideas that had been taught to them their whole lives—and to their ancestors before them—suddenly became proof not of piety but of bigotry.
When gay men and lesbians got rights, it did diminish the clout of those who opposed them. For instance, once Congress overturned the ban on openly gay, lesbian, and bisexual Americans serving in the military, the top brass told chaplains to stop railing against the immorality of gays. In one sense, that was a straightforward enforcement of an anti- discrimination provision, but it did restrict the conservative chaplains’ speech. Some were so upset that they joined a group called the Chaplain Alliance for Religious Liberty, which pledged to combat the “rising tide of threats to religious liberty,” one of which was the “destructive effects of providing official approval of and protection for deviant lifestyles and behaviors which Scripture and orthodox Christian tradition and teaching condemn.” Many American Christians watched with alarm as the professional societies for lawyers in Canada ruled that they would no longer license graduates of Trinity Western University’s law school, which required students to avoid sex outside of heterosexual marriage. Some conservative organizations have been labeled “hate groups” because of their anti-LGBT position. Merits aside, doesn’t that mean that efforts to curtail “hate speech” could, by that logic, target conservative churches that believe the same things?
Even when they’re not in legal jeopardy, conservative Christians have felt increasingly culturally ostracized. The owners of Memories Pizza in Walkerton, Indiana, told a local television station that on the off chance that someone asked them to cater a wedding, they would not provide a pizza for a same-sex celebration because it violated their religious beliefs. They were deluged with attacks, made easier by social media. The restaurant’s Yelp ratings increased from 2 to 1,200, and it had to close down temporarily because the staff could not tell which phone orders were pranks. (On the other hand, a GoFundMe campaign netted the restaurant more than $846,000.)55 Newt Gingrich, with his characteristic knack for unapt historical analogies, declared that there was “a lynch mob underway.”
While conservatives’ pre-Obergefell arguments mostly seemed ridiculous, after the decision they developed a more plausible case. Just as a Catholic nurse gets a “conscience exemption” so she doesn’t have to participate in abortion counseling, evangelical bakers suggested that they should not be forced to provide cakes for same-sex weddings. Forcing them to pro- vide creative services at such an event violated their religious rights, they said, because their opposition to such marriages was grounded in biblical teaching.
But there are huge risks to this strategy—not so much in terms of the law but rather in terms of the aspirations of Christianity. Remember, like other freedoms in the Bill of Rights, religious liberty doesn’t trump everything. The United States Constitution allows some burdening of religious liberties—if there is a compelling enough reason to justify it. For instance, states can no longer ban interracial dating on the grounds that the Bible disapproves of such relationships. Advocates for gay equality argued— and most Americans would agree—that the right for people to marry whom they love most certainly is one of those compelling purposes.
To override something as profound as the right to marry, conservatives find themselves casting their opposition to same-sex marriage as a deeply significant part of their faith. This is no B-list plank of Christianity. In pulpits and on talk shows, preachers and politicians repeatedly deploy the shield of religious liberty to justify anti-LGBT positions—and, in so doing, send a strong message about the centrality of the anti-LGBT teachings to the religion. That message is being received: some 39 percent of young people who have left Christianity to become a “none” said it was because of “negative religious teachings about treatment of gay and lesbian people.”
Conservative evangelicals are having what we might think of as a “Mormon moment.” During the second half of the nineteenth century, Mormon leaders argued that Congress violated their religious freedom when it banned polygamy. That practice, they said, was a genuinely important part of their creed. It wasn’t just a belief; it was one of the beliefs that defined their faith. In the public mind, Mormonism became the religion that promoted polygamy. Mormons were scorned. They were accused of using bogus “religious freedom” claims to defend the indefensible, just as evangelicals are today. For decades, Mormon leaders said they would rather be ostracized than give up the practice. Eventually the leadership made a fateful decision—that polygamy was not actually a core belief for the Church of Jesus Christ of Latter-day Saints. In subsequent years they grew rapidly in membership and clout. It was a moment of self-definition for them, as this era is for conservative evangelical Christians.
Golden Age of Religious Liberty
Despite the passion of the culture wars, when it comes to the classic church-state fights, there is now actually much agreement. The Supreme Court has better balanced the religious rights of minorities with the de- sire to have religion expressed in public places. Congress has made adjustments too, passing several important laws that established broader religious rights, including the Equal Access Act (1984), the Religious Freedom Restoration Act (1993), and the Religious Land Use and Institutionalized Persons Act (2000). And a directive from the George W. Bush administration, maintained by the Obama administration, concluded as follows:
- During school hours, students are allowed to pray, read their Bibles or other religious books, and discuss their faith.
- Students have a right to hold prayer meetings or organize religious clubs and to publicize their meetings.
- Students may express their faith through classwork and homework.
- Teachers may help students organize Bible studies or other religious meetings so long as they do not do so in their official capacities.
- Students are allowed to leave campus to attend Bible studies during school hours.
- Students can express their faith during school events.
- Students can reference or express their faith during graduation ceremonies.
Indeed, society now privileges religion in all sorts of ways we don’t think about. For instance, some 42 percent of all noncommercial radio station licenses were held by religious broadcasters in 2012. Efforts to restrict the dominance of religious broadcasting have been resisted on the grounds that doing so would violate the First Amendment. The tax code provides billions of dollars in subsidies to religion. Scholars estimate that local governments lose about $7.8–$12.6 billion from not collecting property taxes on houses of worship.62 Unlike other nonprofit organizations, religious institutions do not have to file disclosure reports to the IRS, meaning they have virtually no oversight. While three thousand to four thousand audits are done each year of nonprofit tax-exempt organizations, only about twenty of them are for churches or other houses of worship. Efforts to better police tax abuse have been resisted on religious freedom grounds. Court rulings on religious accommodations routinely provide exemptions for religious but not secular purposes. People can avoid working on Saturdays to visit the church but not to visit the nursing home. And while believers may sometimes feel ostracized, one group is even more mistrusted: nonbelievers. Americans repeatedly tell pollsters that they could not vote for, or allow their kids to marry, atheists.
Christians have gained legal clout through a fascinating new strategy. They have started to think of themselves, and litigate, as a minority. In 2014, in Burwell v. Hobby Lobby Stores, Inc., the Supreme Court ruled that not only can religious organizations and individuals avoid the contraception mandate, but so should corporations, as long as they are mostly owned by religiously motivated people. Tellingly, the Court based its ruling on the Religious Freedom Restoration Act (RFRA) of 1993, which was sponsored by Senator Chuck Schumer and other progressives in part to safeguard religious minorities. Protections won by the Jehovah’s Witnesses or members of the Native American Church are now shielding evangelical Christians. These cases helped establish the idea that the government must be hypersensitive when secular laws clash with religious beliefs—a principle at the heart of the claims made by the Little Sisters of the Poor about contraception policy and by Hobby Lobby when it came to same- sex marriage. “Two decades later, it’s clear that the main beneficiaries of RFRA are the Christian right and other religious conservatives,” complained liberal writer Katha Pollitt in the Nation.
In fact, it’s fair to ask whether religious freedom is now invoked too often, just as Antonin Scalia and Felix Frankfurter warned. The Catholic Archdiocese of Milwaukee claimed that the RFRA and the First Amendment protected it from liability claims by the victims of pedophile priests. In Lancaster County, Pennsylvania, a group of nuns sued a federal agency attempting to put a natural gas pipeline through their property, arguing that the move violated their religious freedom because “God calls humans to treasure land as a gift of beauty and sustenance.” (That argument didn’t work so well for the Native Americans back in the day, but perhaps the nuns will have more luck.) Timothy Anderson in 2015 claimed that his arrest for selling heroin violated his religious freedom because he had distributed the drug to “the sick, lost, blind, lame, deaf and dead members of God’s Kingdom.” The court rejected the claim on the grounds that the heroin recipients didn’t realize they were partaking because of their religion.
The most vivid example comes from Brooklyn, the same borough that brought us the deletion of “if the Bible tells you so” from “American Pie.” Brooklyn has a large community of ultra-Orthodox Jews. Some conduct a practice called metzitzah b’peh—in which, after an infant is circumcised, the religious leader who performs the procedure uses his mouth to suck blood from the baby’s penis. The practice is performed on about 3,600 infants each year. This tradition is said to come from Talmudic instruction that circumcision must be accompanied by “suction.” This is not an argument against the nuanced attempts to accommodate religious beliefs in those circumstances. This broad definition of liberty helps make the American approach to religious freedom rise above others. But there is a significant risk to invoking religious freedom too often. If we always play the music at the same volume—whether for egregious violations or gray-area cases—we will lose any sense of perspective. We could misunderstand the phrase “religious freedom” and might even be- come blinded to real persecution when it’s right under our noses.
City officials believed that this was unhealthy. The public health department reported that at least eleven infants who were on the receiving end of that suction contracted herpes between 2000 and 2015, with two dying and two suffering brain damage. Though it didn’t ban the practice, the city required families to sign a consent form. The Orthodox rabbis responded that the herpes claims were a “blood libel.” One of the mohels who performed metzitzah b’peh, Rabbi Avrohom Cohn, was a Holocaust survivor and viewed the city’s actions as a grotesque infringement on his religious freedom. “Now I am here in America all these years, and I am terribly disappointed religion is being interfered with,” he said. “If they want me to go to jail, I will go to jail.”
“You may ask, ‘what’s the big deal?’” Rabbi Gedaliah Weinberger declared, echoing the Little Sisters of the Poor. “‘All they are asking for is a consent form.’ The problem is that it not only intrudes on our religious practice, but it intrudes on our religious decision making. Already it has had a damaging impact.”
The rabbis sued the city, charging that the policy was a violation of their religious freedom. “By essentially starting a public intimidation campaign that forces private citizens to spread the government’s beliefs, they are shaking the core of our democracy,” their spokesman said. A lower court agreed with the city, an upper court agreed with the rabbis, and the fight continued. Apparently, religious freedom is sometimes under attack and at other times running amok.
To some extent, such conflicts have increased in number because we have collectively moved to a new definition of religious freedom— one that requires more sensitivity to religious people than ever before. Many of the instances in which modern Christians claim victimhood are “accommodation” cases, which is to say that they’re being harmed only incidentally, as a by-product of some secular law that wasn’t targeting them. We have come to think of this new kind of religious freedom as the moral equivalent of earlier claims against overt oppression. Requiring someone to fill out paperwork in order to be excused from a secular law is now in the same category—religious freedom!—as hanging a Quaker from a tree.