What a religious liberty law professor and blogger is noticing in the legal landscape.
Howard M. Friedman—law professor, Harvard and Georgetown graduate, and published author—started Religion Clause in 2005, a blog that provides “objective coverage of church-state and religious liberty developments, with extensive links to primary sources.” Church Law & Tax recently reached out to Friedman for his thoughts on current trends in church-state relations and legislation, what we can learn from religious cases abroad, and what future legal developments may mean for the American church.
What has changed—or is changing—in church-state relations?
There are a number of things coming together. One is more religious diversity in the United States, and also more people who identify as non-religious. Free exercise sometimes seems more problematic for people, as the religious groups that are claiming it are not traditional Judeo-Christian groups. Part of what feeds into that also has been the issue of Islamic extremism, and the muddiness about whether we are talking about a religious issue at all when we talk about Islamic extremism. So increased diversity is one piece of the changing landscape.
Many issues in the past had been pressed most directly by conservative Christian groups. The new generation—the younger generation of evangelicals—has a somewhat different agenda than the older generation. The last generation of evangelicals was focused largely, at least in the public policy area, on issues of sexual morality. Now you are seeing more diverse concerns from the younger generation: a broader agenda, including environmentalism, including more openness to LGBT issues.
What might be to come in church-state relations?
Another important change has been the institutionalization of the battle over religious rights and church-state separation. Now more often it is advocacy groups on both sides facing off. Often, advocacy groups are going out looking for plaintiffs rather than plaintiffs coming to advocacy groups with concerns. And that’s true both on the separationist side—organizations like the Freedom From Religion Foundation—and on the side of those pressing religious views, whether it be the Alliance Defending Freedom or Beckett Fund or a long list of groups. That institutionalization has brought money into the mix. It is not unusual for some of these cases to be used as fundraising vehicles, as well, and so that complicates the picture. And then all of this has gotten mixed together with politics. That has been true for a long time, probably ever since Jerry Falwell’s mobilization of conservative Christians brought politics and religious issues together. However, I think what is different now is that Jerry Falwell talked about the “moral majority.” Now many conservative Christians see themselves instead as an oppressed minority.
I have been surprised at how little these religious issues have surfaced in the current presidential race. In the vice presidential debate, there was actually an exchange of religious views, but religious concerns have had a much higher profile in past presidential elections. Perhaps religious issues will now be taking a lower profile. Maybe this is just a temporary development. I don’t think most of these traditional religious issues are a very high priority on Donald Trump’s list of concerns; he has several times said he would seek repeal of the Johnson Amendment, but that seems to be the only religious issue he has talked much about. Hillary Clinton comes from a much more religious background than, probably, her public persona shows. Hers tends to be a mainline Protestant social justice tradition that is probably not going to frame issues in the public arena in religious terms as much as we’ve seen sometimes in the past.
So culture war battles that have previously been framed in religious terms may have a lower profile in the future. These issues seem to come in waves: for quite a while, we had the contraceptive mandate issue with Obamacare becoming the symbolic foe of religious freedom. However, now that we have the Supreme Court equally split on that fight, it has lost its prominence. That issue seems to have disappeared, and the issue now has become transgender bathroom rights. The Supreme Court’s decision to take up the matter has temporarily made it the cutting-edge religious issue in the public square. I can’t imagine, however, that this issue has a really lasting, rousing resonance. So if I were to make a dangerous prediction, it is that the culture wars in religious garb will be lower profile. I don’t know how many waves of these battles broad public opinion can take hold of; we’ve had so many of them recently.
What are trends you’re seeing in state and national legislation in regards to church and state?
Perhaps the major legislative trend is that people are beginning to question the wisdom of the Religious Freedom Restoration Act (RFRA). When that Act was passed, it had broad right-to-left support—across the board—but as RFRA and the state RFRAs have been more and more invoked by people who are opposed to LGBT rights, I think you’re seeing many people who were originally strong proponents of RFRA now having second thoughts.
What trends do you see that specifically pertain to churches?
There are more and more “ministerial exception” cases: cases involving firing of people who are considered ministers (for purposes of this, that term has been very broadly interpreted). What I haven’t seen yet, but I expect to at some point, is pushback from the perspective of clergy and other religious employees about their rights. The issue so far has been framed in terms of the rights of religious organizations, but in some ways, being a member of the clergy is one of the riskiest occupations economically. You can be fired for all sorts of reasons with none, or very little, of the traditional legal remedies available, even where the firing has been for discriminatory reasons.
In most of these cases that have come up, the allegations are not that the employee was fired because of religious doctrine, but that there was some other sort of discrimination going on, or that at least some other sort of discrimination coincided with religious discrimination. These are cases such as the firing of parochial school teachers because they became pregnant or pregnant out of wedlock.
I haven’t seen the employee rights side of this yet, but I wonder whether that’s the next shoe to drop.
How, if at all, are laws currently changing that affect churches?
The most recent clashes, as I mentioned before, seem to be over transgender rights and the Obama administration’s interpretation of the existing anti-discrimination laws as covering this. Initially, the pushback was on privacy ground, but it then has become more and more framed in religious terms, because RFRA gives a stronger cause of action. The argument framed in religious terms is that Genesis says God created man and woman, and that means a sort of denial of the reality that transgender individuals exist. That issue is in the courts right now; maybe we will see attempts in Congress to make it clearer that Title IX does or does not cover transgender rights, but I doubt that is going to go very far. I guess it all depends on the makeup of the new Congress and who the next president is.
You have started to cover church-state relations in other countries, too. Are there any lessons for American churches in what’s happening abroad?
My point often is that the establishment clause, which is seen by at least some people as being anti-religious, in fact is much more protective—is extremely protective—of religion. If you just think about Congress debating what the prayers in your prayer book should look like, and what would come out of that, that ought to give anybody pause about getting the government more involved in religion.Well, there are lots of lessons about what not to do. We have this interesting situation that neither side in the religious debate likes to tout (assuming there are two sides in it): that the United States has the strongest separationist position legally, and it is probably the most religiously observant country in the world. Proponents on neither side like to emphasize that. But in Europe, where you have at least formally established religions in most countries, the amount of church attendance is way, way less than in the United States. A separationist position seems to have worked well to promote religion.
How have readers responded to Religion Clause? What is your goal for the blog?
I have gotten feedback from people on all sides of the religious and political spectrum who find the blog useful. That gives me some confidence that I’m more or less successful in aiming at objectivity and meeting the needs of people both on the left and right religiously and politically. They are people who are working professionally in the area of church-state law or religious liberty—my impression is that most of them see the blog as a standard resource that they use and seem to trust.
I’ve also tried very hard to give links to a lot of primary source material because sometimes that’s hard to find, and I’ve tried to make that easily available to people who want to go back to the primary source material and see for themselves. I think church leaders use the blog primarily to keep up with what’s going on in the field.
I’ve tried to present it as, “Here’s what’s going on; you may have to interpret it, reader, but at least you know what the court has said or what the legislature is doing in this area now. You may need to interpret it, depending on what your position is, what you’re trying to use it for, but at least you’ll understand here’s what’s going on, so that you’re not suddenly caught off guard, having to say—‘Oh, gee, I didn’t know that was decided last month.’”
Emily Lund is the editorial resident for Church Law & Tax.