Some Heated Rhetoric on Religious Liberty
As election season heats up, can we hope for reasoned arguments?
The 2024 presidential campaign is underway, with Donald Trump handily winning the Iowa Caucus. Pundits are already calling attention to the role of evangelical voters in that contest and in upcoming primaries. On Tuesday, law professor and conservative commentator Hugh Hewitt penned an opinion piece on Fox News exploring Trump’s appeal to those voters.
Hewitt chose to frame his piece around a Washington Post article written over the weekend that similarly focused on evangelical voters. He paid particular attention to this paragraph from the Post article that referenced me:
Trump has accused the Biden administration of discriminating against people of faith, suggesting at a campaign event in Waterloo, Iowa, that “Christians and Americans of faith are being persecuted and government has been weaponized against religion like never before.” Fact-checkers, however, have debunked that claim. Experts on religious liberty, such as John Inazu from Washington University in St. Louis, cite multiple major religion-related Supreme Court cases and say religious freedom is perhaps more protected than ever.
Hewitt called this an “astonishing paragraph.”
It is, I hope, undeniable and uncontroversial that the Supreme Court has delivered major decisions in the past few years favoring and at times expanding the free exercise of religion. These include, among others, Carson v. Makin (2022) (prohibiting the exclusion of religious institutions from a generally available student-aid program); Kennedy v. Bremerton School District (2022) (barring a school district from firing a football coach for public prayer proximate to games); Fulton v. City of Philadelphia (2021) (overturning the exclusion of Catholic Social Services from Philadelphia’s foster care system); and Our Lady of Guadalupe School v. Morrissey-Beru (2020) (expanding the scope of the ministerial exception for religious schools).
In fact, setting aside some hastily argued and very context-specific COVID cases, I can think of only one major religious freedom decision from the Supreme Court during the past fifteen years that has gone decidedly against religious freedom: The 2010 decision Christian Legal Society v. Martinez (a 5-4 decision denying civil liberties protections to a Christian student group at a public law school in California).
Despite this factual record, Hewitt opines:
First, and most obviously, the reasons cases vindicating religious liberties and especially Free Exercise rights make it to the Supreme Court where they are won and religious freedom protected is because the litigants’ religious rights have in fact been trampled on long before the case reached the justices.
It’s axiomatic that if religious people are winning cases before the Supreme Court it is because they have indeed been wronged by state actors. So the “fact checkers” are simply wrong, again, and ten minutes with any litigator from Alliance Defending Freedom, which handles hundreds [if] not thousands of anti-religious actions every year on behalf of believers can set any reporter straight on the record.
The problem with this argument is that cases don’t just “make their way” to the Supreme Court. Sophisticated litigators—especially repeat players like the lawyers at Alliance Defending Freedom—select cases and issues that they think have the best chance of prevailing in the courts. And the Justices of the Supreme Court decide which cases to take when they are appealed.
Hewitt would also be hard pressed to defend Trump’s claim that “Christians and Americans of faith are being persecuted and government has been weaponized against religion like never before.”
Here are just a few examples of past government weaponization against religion in the United States: At the Founding of our country, state laws coerced religious conformity to varying degrees, and some of these laws continued into the nineteenth century. In its Westward expansion, the federal government established boarding schools to force assimilation of Native Americans to Christianity. During the Antebellum Era, Southern States imposed restrictions on black preachers and forbade enslaved and free black Americans from gathering for worship. Anti-Catholic laws plagued our educational systems. At the end of the nineteenth century, the federal government launched a sustained campaign against Mormons that ended in the government seizing the assets of the church and rescinding their legal charter. In the 1930s and 1940s, state and local ordinances targeted Jehovah’s Witnesses.
These facts do not diminish the perceived and actual threats to religious freedom that still exist in our country today. Yes, there are violations of religious liberty happening right now. And yes, we should continue to strengthen religious liberty protections for people of all faiths and people of no faith. It’s also the case that Democratic administrations have become increasingly hostile to conservative religious believers, particularly when the beliefs and practices of those believers are at odds with efforts to strengthen or expand LGBTQ rights. Hewitt is right that Trump resonates with a lot of voters concerned about these developments. But he should not stoke an argument unmoored from our broader history and constitutional doctrine.
Donald Trump is now asserting, as he did in 2016 and 2020, that government is being weaponized against religion like never before. This kind of hyperbolic and historically implausible claim has no place in thoughtful public discourse. Those of us who hold ourselves out as public commentators and professors should do our best to dial down the rhetoric and stick to reasoned arguments.
Good word, John! Keep calling for reasonable discourse! I'll be right there with you.
John,
I think both Hewitt and the Post article may be misreading Trump's statement and its resonance. Note that all the historical examples of weaponization you gave, while substantial, were levied against a non-white and/or non-Protestant minority group. I think what alarms Mr. Trump's largely white, Protestant audience in Waterloo, Iowa is that the weaponization of government is happening, for the first time in American history, against them and people like them - and that while they perceive themselves to be in the majority.
I'm not typically one to defend the truthfulness of the dubious claims of politicians, and certainly not one to defend politicians who themselves are not concerned with being truthful. However, the weaponization of government against religion *is* occurring "like never before" - not in extent, but in target. So, in that sense, Trump's statement is both technically true and on point for his audience.
That's not to say that Trump's statement isn't easily misinterpreted, or even deliberately constructed as to be easily accepted as true in one sense and then repeated and re-understood in a sense more broad and sweeping (but not true).