A Report from the Religious Liberty Front Lines

As a leading attorney for the Becket Fund for Religious Liberty, Luke Goodrich has helped litigate some of the most important religious liberty cases heard by the United States Supreme Court over the past decade. Decisions in these cases have protected the ability of churches to select the ministers they desire, kept a family-owned company from having to provide insurance that covers abortifacients, and ensured that a prisoner could grow a short beard as required by his faith.

Goodrich has also written a book, Free to Believe: The Battle Over Religious Liberty in America. Typically, attorneys are not known for their crisp, clear prose, but I’m pleased to report that Free to Believe is a pleasure to read. Goodrich is an excellent writer, and throughout the book he scatters stories and personal anecdotes that help bring to life what could otherwise be a dry subject.

A Robust Defense

Goodrich begins by offering a robust, Christian defense of religious liberty. He argues that God created men and women in his image, that he intends for us to be in relationship with him, and that this relationship must be freely chosen. Religious liberty is first and foremost a God-given right grounded in a biblical conception of justice, not a gift from the state. It is a right that God provides to all of his image-bearers, not just those who already follow him.

From the Roman emperor Constantine to the present day, Christians who have access to political power have been tempted to use governments to promote their understanding of Christian orthodoxy. This is unfortunate, Goodrich argues, because true faith cannot be coerced, rulers are poor judges of religious truth, and, most fundamentally, when “the government punishes someone for rejecting God, it is usurping God’s authority.”

Of course, religious liberty is not a trump card in every dispute. The ability of citizens to act upon their religious convictions may be restricted if their actions infringe on the rights of others. To give an obvious example, the government may properly prohibit an individual from sacrificing a baby to the sun god.

Non-believers are unlikely to be convinced by biblical or theological arguments for religious liberty, so Goodrich offers other arguments as well. For instance, there is excellent evidence that religious freedom causes religion to flourish. This, in turn, encourages morality and good works, such as the creation and maintenance of hospitals, soup kitchens, shelters, and other institutions that benefit society. Religious liberty also protects diversity and reduces social conflict.

Religious liberty is a fundamental human right, and in the United States it is also a right protected by federal and state constitutions and laws. The second section of Free to Believe contains seven chapters cataloging the many ways religious liberty is under assault today. Almost no one supports laws banning religious practices per se. Instead, the chief threats to religious liberty come from neutral, generally applicable laws that inadvertently burden the ability of citizens to act upon their religious convictions.

For instance, about half of the states ban discrimination on the basis of sexual orientation. These laws have been used against photographers, bakers, florists, and other creative professionals who have sincere religious objections to participating in same-sex wedding ceremonies. They also threaten the ability of religious institutions to insist that employees abide by traditional Christian sexual ethics. Before ending his presidential candidacy, Beto O’Rourke went so far as to say that churches that hold disfavored views on same-sex marriage should lose their tax-exempt status.

Some Christians contend that laws protecting LGBT rights should be repealed, at least in part to protect religious liberty. Or, at the very least, new ones should not be passed. Goodrich doesn’t address these possibilities, perhaps because neither is politically feasible. Instead, he argues that the best way to protect religious liberty in these situations is to carefully craft narrow exemptions to protect religious citizens.

Americans have a great deal of experience with such accommodations. From the early colonies to the present day, religious pacifists have been exempted from military service. The Constitution itself contains an accommodation that permits Quakers and others who object to swearing oaths to affirm them instead. By one count, there are more than 2,000 religious accommodations in federal and state laws. There is little evidence that these accommodations have kept governments from meeting important policy objectives.

Even so, when the possibility of religious exemptions is raised with respect to LGBT rights, activist groups such as the Human Rights Campaign inevitably object. They often raise the analogy to racial discrimination—that is, they contend that we would not permit bakers to decline to participate in an interracial wedding ceremony, so we cannot permit them to do so for a same-sex ceremony.

Goodrich demonstrates that this analogy is faulty for a number of reasons. Most significantly, there are fundamental difference between how racial minorities and LGBT citizens have been treated throughout this country’s history. Members of both groups have suffered:

But African Americans were enslaved. Their families were torn apart. They were denied the right to vote. They were subjected to repeated mob violence that was ignored and sometimes supported by the state. . . . In short, they faced centuries of systematic, pervasive barriers to full participation in the economic, social, and political life of the nation.

This difference is recognized even in the 21 states that have laws banning discrimination on the basis of sexual orientation. As Goodrich notes, all of these states include exemptions that permit “religious groups to hire based on their religious beliefs about sexuality.”

Goodrich also discusses the recent assault on protections—historically supported by both Democrats and Republicans—that permit health-care professionals to decline to participate in medical procedures (like abortion or sterilization) to which they have moral or religious objections. If successful, these attacks could force doctors, nurses, pharmacists, and other medical workers to choose between their professions and their religious convictions.

Christians are generally supportive of religious liberty when it comes to fellow Christians. But when it comes to religious freedom for Muslims, the level of commitment sometimes wavers. Goodrich devotes an entire chapter to this problem, arguing that religious freedom is a matter of justice, which means we must seek it for all citizens. As well, Christians will have more credibility when it comes to cases involving our own convictions if we seek to ensure that all Americans may freely exercise their faiths.

In the introduction to his book, Goodrich writes that he is an attorney “at the Becket Fund for Religious Liberty, the nation’s only law firm dedicated to protecting religious freedom for people of all faiths.” It may be fair to call Becket a leader in protecting non-Christian citizens, but it is important to recognize that other Christian legal advocacy groups such as the Alliance Defending Freedom, Christian Legal Society, and First Liberty advocate for people of different faiths as well.

Prudent Protections

The last three chapters of Free to Believe should reassure readers who might be a bit nervous after Goodrich’s lengthy discussion of threats to religious liberty. He reminds us that religious liberty remains extraordinarily well protected in the United States. Indeed, there are few times or places where this freedom has been better protected.

But even if this were not the case, or if things take a significant turn for the worse, our faith should not be in laws or lawyers. As Christians, we should expect to suffer for our faith, as many of our brothers and sisters have throughout history and up to the present day. Scripture teaches us to rejoice when suffering comes, using it to bring glory to God. In the end, our hope rests in the Creator and Ruler of the universe, a Savior who has overcome the world.

Of course, our trust in God does not mean religious organizations should neglect taking prudential steps to protect themselves. Goodrich briefly discusses a few of these, such as defining one’s mission clearly, aligning employment criteria with that mission, and consistently enforcing rules. He also suggests creative and loving ways to resolve conflicts.

Religious liberty is a God-given right grounded in a biblical conception of justice, but it is also a core American value. Indeed, many American founders referred to it as “the sacred right of conscience.” Free to Believe helps believers and non-believers alike understand why this right is so important, how it is being attacked today, and what we can do to counter these threats. It should be read by religious and political leaders, and by any citizen concerned about America’s first freedom.

Mark David Hall is Herbert Hoover Distinguished Professor of Politics at George Fox University. He is the author of Did America Have a Christian Founding?: Separating Modern Myth from Historical Truth (Thomas Nelson).