“Much Ado (Without Cause?) About Religious Liberty”

At Real Clear Religion, Jeffrey Weiss, under the heading “Much Ado About Religious Liberty,” scorned a recent study by the Liberty Institute and the Family Research Council as mistakenly alarmist. The study, “The Survey of Religious Hostility in America,” is a collection of more than 600 instances of hostility to religion in the US over the past decade or so. Weiss says that, at that rate, a person is much more likely to be struck by lightning than to encounter an act of religious hostility. Besides, in some of the instances listed, the religion rightly was restricted; in other instances, a court eventually put right an initial wrongful limitation; and in general the report wrongly focuses on restrictions on Christianity, leaving out the rights of other faiths. He concludes: “When it comes to religious freedom, this report is convincing me that Americans and our legal umpires are doing a remarkably good job.”

But don’t take Weiss’ word for it. Peruse the report. What’s in it is enlightening. Also important is what’s not there.

As to the former: Even if the total number of incidents is not huge, the variety of problems is instructive and disheartening. Note even just the variety of difficulties various faith-based organizations have encountered, from challenges to the inclusion of religion in services freely offered to the public (Intermountain Fair Housing Council v.Boise Rescue Mission Ministries (9th Cir. 2011)) to the acceptance by the US Supreme Court of a public law school’s policy of denying to religious student groups the right to require their leaders to be faithful in creed and conduct (Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez (2010)). Also instructive, though this time heartening, are the major victories that are recorded, most notably, this year’s unanimous Hosanna-Tabor decision by the US Supreme Court (Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC), upholding the right of religious organizations to select their “ministers” without governmental interference.

As to what is missing: Compare this survey with the Pew Forum’s study of governmental and social hostility to religion around the world and you will see how wonderfully religious freedom continues to flourish in these United States. Note, too, that while the Survey of Religious Hostility in America records many instances where, thanks to the Religious Land Use and Institutionalized Persons Act (RLUIPA), anti-religious zoning decisions by cities have been overturned, the Survey does not note that often the Obama administration, via Civil Rights Division of the Department of Justice, has weighed in to defend the religious organizations (see the periodic “Religious Freedom in Focus,” edited by Eric Treene).

Finally, and most important, note this: the Survey is a collection of court decisions. That means that most of the incidents concern whether a person or organization violated a law, while the other incidents concern whether a law or regulation violates the US or a state constitution. So this is a rather static and backwards-oriented picture. What is not shown so clearly by the Survey are the deeply troubling contemporary trends for laws and regulations themselves to be less accommodating of religion, and for constitutional interpretive schemes to prioritize other values over religious freedom. If these trends continue, then fewer religion-accommodating rules will be allowed to stand, and then fewer court decisions will end up favorable to religious exercise by individuals or institutions.