The State of Religious Freedom

A recent lecture and dialogue with Professor John Witte

Photo courtesy of the Christian Legal Society

Last month, the Christian Legal Society hosted the inaugural lecture of the John Witte, Jr. Lecture Series on Christianity & Law at the National Press Club in Washington, D.C. Fittingly, the first lecturer was Professor Witte himself.

I was honored to moderate the Q&A session following Professor Witte’s talk, and in today’s newsletter I want to highlight some of our dialogue.

I began our discussion by acknowledging my agreement with his assessment that free exercise law has considerably strengthened in recent years. We are in a place of strong religious freedom, and it’s important to assert that reality at a time when other voices suggest otherwise.

My questions to Professor Witte focused more on the role of religious freedom in our pluralistic society. We discussed the significance of free exercise for non-believers, religious monuments on public grounds, and recognition of religious organizations on public school campuses. The following exchanges have been edited for clarity and length:

John Inazu: We live a country today that has a much more pluralistic citizenry than we did thirty years ago and certainly at the time of the founding. I think especially of the role of non-believers. If I’m a non-believer, what’s in it for me with free exercise why wouldn’t I just oppose the special exemption for people who believe in something transcendent that I reject as a first principle? As the demographic of non-believers grows, how do we continue to encourage support—not just constitutionally but culturally—for the free exercise of religion?

John Witte: It’s interesting that one of the first cases dealing with an exemption, a 1961 case called Torcaso v. Watkins, actually involved an atheist who was making a free exercise claim to be excused from or exempt from compliance with a religious test oath that was still being administered for a modest position that he was pursuing in the state of Maryland. He made the case to say, on the one hand, the oath is an establishment of religion—God is being signaled out in this test oath, and I have to attest to God’s existence and swear my veracity on the basis of God. But his other claim was that I have a free exercise right to be free from coerced faith. And the Supreme Court weighed the second argument more strongly and came to the conclusion that yes, this atheist needs to be given a free exercise protection from being coerced into religious practice that was contrary to his beliefs. The Court recognized that atheism could be viewed as a religion. It recognized that it’s an affirmative belief in the non-existence of God.

JI: As you summarized in your remarks on the American Legion decision (upholding a municipality’s continued use of a World War I cross monument against an Establishment Clause challenge), you used the phrase “historic democratic judgments” to describe the Court’s approach to upholding monuments. I want to focus on the word “democratic.” The cross in American Legion was erected in 1925—five years after women receive the right to vote, at a time when African-Americans effectively still can’t vote at the time, and fifteen years before the Japanese American internment. What is “democratic” in 1925, and can we even use that term coherently to describe a tradition that shut so many people out? I think this becomes especially relevant with the monument cases where the historic monuments are almost uniformly Protestant of some sort because the cultural and legal forces supported Protestantism and excluded other faiths. As we look to this new test emerging from the Court, is there a problem inherent in the description of “democratic”?

JW: Yes, there is a troubling aspect of this “democratic judgment” argument because it in many ways kicks the ball to the other branches of government. And yes, democracies in the past were far less representative of vast constituencies in the population than they are today. That may well result in different legislative judgments today that we have to take the cross down, that we have to remove the Ten Commandments display, that we have to desist from putting up the crèche. Other religious symbols and non-religious symbols might well be a better democratic representation of today’s values. And yes, there is no question that the Court’s appetite for upholding religious symbols has been almost exclusively directed to the protection of traditional Christian symbols. The Court’s response to local government officials of late has been if you no longer want these symbols, take them down, and there’s no free exercise violation if you do. [Elected officials] have to bear the political heat but we would rather have that be done through democratic decision-making than by nine people in black bathrobes who have a limited record based upon what was pled below.

JI: Might there being something different going on in the Town of Greece case (upholding the practice of “legislative prayer” before a municipal council meeting)? What about Justice Kagan’s dissent in that case, in which she posits: You’re the atheist going before the town council for your zoning variance or whatever it is, and you’re standing there and everybody prays in front of you. Is there something more going on when the majority culture backed by law asks people to comply in a certain way that might be against their own conscience?

JW: You’re hypothesizing facts that weren’t in evidence in Town of Greece, although they’re interesting. People do not have to be there and listen to the prayer—they can come in later. They can cover their ears. People are not asked to recite the prayer—they’re asked to listen to the prayer respectfully. It’s not a condition for political participation. It is not an essential first step in being able to press one’s case before the town council. It’s a solemn brief respectful prayer as the Court characterizes it. The increasingly pluralistic representation of the people giving the prayer each meeting made it easier for to say “Well, I may be offended by this week’s prayer, but not next week’s.” I have a lot more trouble when it is a pervasive prayer, for example, teachers sitting in the faculty lounge at a public school and day after day the principal continues to pray the Lord’s Prayer in offense to their faith and not giving them a chance to offer their own prayer.

JI: Let’s shift to the question of religious symbols in public spaces. I think this is actually more of a theological question than a legal one. The current Establishment Clause doctrine seems to say a cross gets a pass because its meaning has become watered down. Shouldn’t Christians be worried about the cross being constitutionally protected because it has no meaning?

JW: I would much prefer not to have crosses on public lands if they have to be stripped of religious meaning to be constitutionally acceptable. Putting up a brand new big cross and saying this is allowed under the Establishment Clause under these conditions smacks of blasphemy. I would rather have the place where my Lord sacrificed himself on behalf of all of us as something properly in a worship setting rather than in public. But having made historical decisions about the propriety of a cross monument and recognizing there are different views about the theology of the cross in public and private life, I still think leaving up an old cross [which the Court upheld in American Legion] is okay.

JI: There was one case you didn’t mention in your lecture, the 5-4 decision, Christian Legal Society v. Martinez, which in 2010 denied the legal recognition of the student chapter of the Christian Legal Society at a public law school, Hastings College of the Law. [The Court allowed the school to deny recognition of the religious group after concluding that the school’s policy applied equally to all student groups and was therefore content neutral.] This is an important decision, and it’s still on the books. I have my own theory that had Justice Kagan replaced Justice Stevens by the time of that decision it would have flipped the other way. We certainly have a different Court today from 2010, and the doctrine of Martinez seems unbelievably unstable compared to the rest of free exercise law today. So why is this case still there and where do you see it going in the coming years?

JW: I see Christian legal Society v.Martinez as the last case in the era before this new Great Awakening [of Supreme Court decisions protecting the free exercise of religion]. It was a difficult case because the facts were so difficult to discern from the record below. The Court assumed the school’s all-comers policy governing student groups was being universally applied against all parties: The Women’s Law Students Association needed to include men and if they didn’t it was in gender discrimination. The Black Law Students Association needed to include non-black law students otherwise they engaging in racism. The young Democrats, or the young Republicans, the tree huggers or the Karl Marx huggers all had to include everybody else with contrary views. The reality was that there were 50 groups on the campus who had organized for all kinds of purposes and whose membership criteria had never been subject to any kind of civil rights action by the state or by the University of California. Then the Christian Legal Society comes along and advertises its long-standing criteria of membership that insists upon abiding by Scripture and not living an “unrepentant homosexual life” and all of a sudden that became a problem and now the state civil rights act is being applied to them for the first time. I think this case has now been distinguished to its facts, and we are not finding the same application of that precedent outside of the Ninth Circuit. But it’s still a case that has forced some religious groups to camouflage and contort themselves to be acceptable. And many groups have simply said rather than fighting the battle for registered student group status and attendant benefits and creating another million dollar case, maybe the better thing to do is simply fly under the radar and meet privately.

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You can watch the full video of Professor Witte’s lecture and our dialogue here: