Over the past several years, people of numerous different faiths across the country have brought religious liberty lawsuits involving the right to seek an abortion, perform same-sex marriages, protest the death penalty, protect refugees, fight nuclear proliferation, provide harm reduction services to drug users, shelter the homeless, prevent environmental degradation, and resist ethnic and religious profiling.
Just this week, humanitarian aid worker Dr. Scott Warren was in court defending his right to act on his religious beliefs by providing food and water to migrants crossing the Arizona desert. Dr. Warren has been charged with “harboring…aliens” by the federal government — charges that could result in a lengthy prison sentence. He has brought an argument based on the Religious Freedom Restoration Act, a broad federal religious liberty law, charging that his prosecution imposes an illegal burden on his religious exercise. Warren has explained that serving migrants is required by his faith, stating: “[f]or me we most definitely do unto others as we would want to have done unto us. When we come into interaction with another person, that person is us and we are that person.”
Yet, despite the religious liberty arguments made by Warren and many others, courts, legislators, advocates, and media seem only to be concerned with “religious liberty” rights as they relate to two specific beliefs held by socially conservative Christians: opposition to LGBTQ and reproductive rights.
A report issued this week by the Law, Rights, and Religion Project at Columbia Law School — Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right — seeks to correct this narrow focus on the religious practices of conservative Christians, contending that the battle over “religious liberty” in the U.S. is far more complex than many would have you believe.
Whose Faith Matters? challenges two widespread misconceptions: that the political left has abandoned the fight for “religious liberty,” seeing religion as a threat to its values, and that Christian conservatives are resolutely dedicated to protecting religious liberty. In fact, people of faith outside the conservative movement have taken up the fight for religious freedom in a wide variety of contexts. And while the Christian right has positioned itself as the sole defender of “religious liberty,” this movement’s strategy is to substitute the beliefs of a specific subset of conservative Christians for the nation’s broad and pluralistic religious traditions.
As proof of the robust fight for religious freedom outside the Christian right, the report offers a sweeping overview of such activism, both historical and contemporary, within 12 different social movements, including claims brought by atheists and other non-theists. It covers the Milwaukee Fourteen, who in 1968 stole and burned draft records with homemade napalm while reciting from the Gospels of John and Luke, later arguing in court that they were following “a moral law higher than that of any nation”; a member of the Clergy Consultation Service on Abortion, an underground network of religious leaders who helped thousands of people access safe abortion in the years prior to Roe v. Wade, who argued that a state abortion ban “restricted his right to offer pastoral counseling”; the “Sanctuary trials” of the 1980s, in which people of faith argued that they should be exempted from anti-harboring laws after they were prosecuted by the Reagan administration for helping refugees escape from Central America; numerous unsuccessful attempts by Native American tribes to use religious liberty arguments as a way to protect holy sites from environmental destruction; a group of interfaith clergy who in 2014 argued than North Carolina’s ban on performing same-sex marriage ceremonies violated their religious liberty rights; and Safehouse, a Philadelphia nonprofit whose board is seeking to open a safe injection site for drug users as an exercise of its members’ religious beliefs, including “the principle that preservation of human life overrides any other considerations.”
Admittedly, these claims and the many others covered by the report have rarely prevailed, while conservative Christians seeking exemptions from reproductive health and LGBTQ civil rights laws have garnered far more success before both legislatures and the courts. In part, the report argues, this is because of a social climate in which only the religious liberty claims of conservative people of faith are viewed as legitimately religious. Non-conservative beliefs are seen — as the Department of Justice expressly argued in the Safehouse case — as merely “socio-political” rather than religious.
Rather than treating “religious liberty” as a right exclusive to socially conservative Christians, we must chart a path towards protecting the religious beliefs and practices of all faith practitioners — including those of no religious faith — with the respect and neutrality that the Constitution demands.