Tag Archives: religious freedom

Which Religious-Liberty Protections Mean
Something? A Question for Jonathan Merritt

Protesters at the Moral March on Raleigh (February 13, 2016). Susan Melkisethian via flickr.

Protesters at the Moral March on Raleigh (February 13, 2016). Susan Melkisethian via flickr.

Although I admire Jonathan Merritt’s religion writing a great deal, I was disappointed with his latest Atlantic piece, “Religious-Liberty Laws That Have No Meaning.” Merritt takes conservatives to task for recent state-level legislation that purports to protect either religious liberty or bathroom safety at a cost to sexual minorities. His immediate targets are recent laws in Tennessee (aimed at protecting medical professionals who object to gay marriage and non-marital sex on conscience grounds) and North Carolina (requiring transgender people to use the bathroom that corresponds to gender given on their birth certificate).

Merritt argues that laws of this nature are driven by conservative “fear” and reflect efforts to “‘solve’ non-existent problems.” Neither law is particularly well-written, and the North Carolina law in particular reflects partisan politics (for example, it also prevents cities from enacting minimum wages higher than the state’s). Nevertheless, I worry that Merritt’s withering critique has perhaps unwittingly contributed to a certain kind of progressive narrative as ungrounded as the conservative one that he critiques.

When it comes to understanding clashes between religious liberty and the rights of sexual minorities, there is no one “conservative narrative” and no one “progressive narrative.” For the purposes of this discussion, however, we can talk about a “fear narrative” pushed by some conservatives and a “bigotry narrative” pushed by some progressives.

The fear narrative rallies its base in much the way that Merritt describes: by promoting anxiety and mistrust in reaction to progressive causes, especially those involving sexual minorities. The bigotry narrative is similarly indiscriminate: It views traditional religious beliefs about sexuality as rooted only in animus.

Merritt does a good job critiquing the fear narrative, including highlighting the misguided legislative effort in Tennessee to declare the Bible the official state book. (That might have been a nice gesture in 1816; it makes no legal or cultural sense in 2016.) I also share Merritt’s views about North Carolina lawmakers’ approach to bathrooms. The sexual predator trope advanced by the fear narrative is as galling as it is ungrounded, and that kind of rhetoric does real harm to real people. Continue reading

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Is Religious Freedom Imperiled?

The “standard story” of American religious freedom goes something like this: The Founders, in their wisdom, introduced novel conceptions of religious liberty that ensured a secular government and equal treatment of all faiths. Ensuing generations of Americans failed to honor those principles. In the middle of the twentieth century, a courageous Supreme Court recovered the Founders’ approach. Since then, conservative religious believers have tried to undo the Court’s restorative efforts.

Steven Smith, a professor of law at the University of San Diego, isn’t buying that story, and in his latest book, The Rise and Decline of American Religious Freedom, he explains why. For most of our history, Smith argues, our country largely abided by an “American settlement” for religious pluralism that included separation of church from state (but not of religion from government) and freedom of conscience. But the mid-twentieth-century Supreme Court altered the “American settlement” and thereby placed “religious freedom in jeopardy.”

Smith is well-known for his work in legal and political theory, and his previous books have offered measured though sober accounts of important legal questions, as evidenced by less-than-cheery titles like Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom, Law’s Quandary, and The Disenchantment of Secular Discourse. Smith’s newest book expresses greater pessimism about the current trajectory of religious freedom in America. But he may not be pessimistic enough. Continue reading

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