Tyler Broker: ‘Religious liberty’ a truly deceitful term
This column was first published on AboveTheLaw.com on March 22 and is reprinted with permission.
By Tyler Broker
It is understandable, if not logical, for citizens today to believe religious faith is under attack. When held up to scrutiny, however, the claim falls apart.
For one thing, religious liberty is currently on a decade-long winning streak at the Supreme Court. Indeed, thanks entirely to an ever-increasing conservative majority, the Supreme Court has, without textual basis and in complete defiance of precedent, reimagined the meaning of the First Amendment’s Free Exercise Clause in a way that favors religious exemption from general applicable laws.
You would think that, as a consequence of such an impressive and resounding winning streak, religious citizens would feel more protected. Instead, the exact opposite has occurred.
In such a religiously diverse country as ours, there are a lot of explanations for current religious angst. I submit the reason mainstream Christians feel under attack is because both Protestantism and Catholicism are experiencing a rapidly declining membership. As a consequence of more Americans openly rejecting attendance in Christian churches, nonreligion itself has become more of a boogeyman to Christians — something not only to fear, but to demonize and hate.
Under the previous president’s administration, demonization of the nonreligious population was commonplace and done openly without remorse to citizens whose only perceived failing was they did not believe in religious faiths. The prior administration’s first attorney general, Jeff Sessions, had described the nonreligious as a threat to government. At his confirmation hearing just four years ago, he wondered whether nonreligious citizens could discern “truth,” calling into question the morality of every nonreligious citizen working at the Department of Justice.
William Barr, the man who would eventually replace that attorney general two years ago, took bigotry against the nonreligious a step further and proclaimed that nonbelievers as a collective group were directly responsible for claimed rises in “depression and mental illness,” “suicide,” “senseless violence,” and furthering “a deadly drug epidemic.” This demonization of citizens for their lack of religious belief is not without effect. The nonreligious are one of the most disliked religious minorities in the United States.
Not only is this demonization by cabinet members sickening, it is demonstrably false. (Imagine if an attorney general nominee said at their confirmation hearing that they couldn’t say if Catholics or Protestants could discern “truth” because their faith was wrong.)
As the decline of religion has occurred, over this same period, violence and crime have dropped dramatically, and, even on a topic many Christians claim is of their upmost concern, abortion rates are now at record lows. Yet, there is a disturbing insistence by powerful government officials who claim that nonreligion is a national security threat and a threat to the religious way of life.
Nonbelievers, however, are not just facing rhetorical demonization but actual legal oppression. A federal court has upheld disenfranchising nonbelievers from giving secular invocations to state legislatures. The court’s reasoning for banning nonbelievers from addressing their own state legislatures with patriotic messages of universal tolerance and unity was that “only theistic prayer can satisfy all the traditional purposes of legislative prayer.” Again, imagine if a federal judge said that neither Catholics nor Protestants could give invocations because only nonreligious messages could “satisfy all the traditional purposes” of a secular or civil government?
Regardless of whether you agree that only religious faiths that have given invocations in the past are capable of giving invocations to state legislatures now or in the future or that it is just nonbelievers who can be excluded from offering invocations, this is not a neutral position but a direct (and vile) system of government-enforced exclusion and discrimination against an ever-growing population of American citizens.
And if we’re talking tradition, traditionally American legislatures represent all citizens, regardless of their religious faith.
In another federal court, nonreligious citizens were banned from performing private wedding ceremonies for nonreligious couples. A federal court upheld a law that bans one-fifth of the population in Texas from performing private wedding ceremonies, solely because the citizens lacked a government-required religious belief to perform a private task. If a nonreligious couple wants a nonreligious celebrant in Texas, the government will only allow them to use the services of a government official, whereas a religious citizen in the same state can have someone from their own community, who reflects their values, and at their exclusive choosing, perform the same (legal) ceremony without any interference from the government.
I will say this until I am blue in the face: There is no form of legal or cultural attack on believers that even remotely compares to the legal disenfranchisement faced by nonbelievers in just these two cases. And I could go on about how the Supreme Court upheld forcible taxation on nonbelievers to subsidize a giant Christian monument.
With such gross imbalance toward favoring religion in the law, you would be right to ask how a claim of persecution by government against religion persists? The blunt answer is that people are being deliberately misled.
For example, take Kennedy v. Bremerton School District, a case from Washington that has been making the religious outrage rounds on platforms like Fox News. To hear the plaintiff tell it, assistant high school football coach Joe Kennedy was fired because he was simply expressing his faith. But the facts of the case tell a much different story.
Here are those facts: Kennedy prayed in the middle of the field immediately after the football games ended. At first, he prayed alone. When several students asked to join the coach in prayer, the coach responded with “This is a free country” and “You can do what you want.” Over time, a majority of the team’s players would join the prayer. Sometimes, members of the opposing team also joined.
Then, the parent of an atheist student told the principal that his son “felt compelled to participate” in the coach-led prayer because “he felt he wouldn’t get to play as much if he didn’t participate.”
The school, fearing a lawsuit on Establishment Clause grounds, made an attempt to work with the coach to provide a “location within the school building, athletic facility or press box” that could be made available to the coach to practice the religious exercise he and others were participating in. The school even said the coach or any player could pray on the field, although not immediately after the game or before the students had been released.
Instead of discussing the matter with the school as requested, the coach chose to go on a media blitz, where he repeatedly portrayed himself as the victim of religious persecution by the school and vowed to continue the prayer despite any school order.
The media attention turned the issue into a spectacle — and a potentially dangerous one. Several school officials testified they suffered repercussions (and fear for their own safety) due to the increased attention and anger being expressed at the way the coach “chose to address the situation.” On at least one occasion, the school was unable to properly supervise the students and keep the crowd under control at the game.
After the season ended, the school chose not to rehire the coach because he had “failed to follow district policy,” and because “his actions demonstrated a lack of cooperation with administration,” and had “contributed to negative relations between parents, students, community members, coaches and the school district,” while he “failed to supervise student-athletes after games due to his interactions with media and community.”
More than a few things stand out about these facts that conflict with the narrative used by the coach that he was fired because of his faith. The school showed no animus to the coach’s faith, for one thing. The school was only objecting to the time and place of the exercise, not the religious practice itself.
The school even offered to open up all of its facilities to accommodate the religious expression, at virtually any time other than right after the game before the students had been released to the care of their parents. Moreover, I submit it is completely understandable why the school would be worried about the time and manner of the exercise that has nothing to do with religious animus but to better encourage personal choice and free exercise.
Thankfully, the Supreme Court denied to take up Kennedy’s appeal.
Religious exercise is a personal choice that is better reserved to the decision-making between the parent and child than by government officials who students are mandated to follow while under their supervision.
The spectacle of stigma is what prevents equitable results in religious liberty cases. Knowing that, it is still amazing to watch it work despite the obvious.
How can it be legally justified that the coach in Bremerton is a victim of hostile government animus, yet states can ban nonreligious wedding celebrants at private ceremonies? It’s beyond me.
Calling such a system “religious liberty” is not only mistaken, but pernicious and intentionally deceiving.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review and the University of Memphis Law Review.
