Losing their religion: AG Barr should recognize the faith of progressives

Today, geographer Scott Warren is scheduled to be tried — for the second time — by the U.S. Department of Justice for acting on his faith. His first trial ended in a hung jury last June. Arrested in 2018, Warren was charged with “harboring certain aliens” for providing food and water to two men he encountered wandering the Arizona desert. His attorneys have explained that, because of his spiritual beliefs, he could not in good conscience turn away two exhausted, injured men seeking food, water and shelter.

Warren is among dozens of people nationwide targeted by the U.S. government for acting on their religious beliefs. Despite the Department of Justice’s stated commitment to religious liberty, its lawyers have challenged these faith practitioners in court. Often, the DOJ disputes the notion that they are legitimately religious, arguing that non-conservatives who bring religious liberty claims are acting on their political, rather than faith-based, commitments.

Take Warren: Citing the Religious Freedom Restoration Act (RFRA) — the law that allowed Hobby Lobby to not pay for its employees’ contraceptives — he has argued that he should be permitted to help migrants as required by his faith. In court, Warren explained: “[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.”

In response, DOJ attorneys tried to cast doubt on Warren’s religious identity, suggesting that he is not entitled to protection because he is not a member of any formal denomination. In a hearing, the federal prosecutor asked whether Warren practiced Judaism, Islam or the Baha’i faith, which he does not. 

Yet religious liberty rights in the U.S. apply to all people of faith, not just members of organized religions. The prosecutor’s unsuccessful attempt to paint Warren as not legitimately religious merely because he does not belong to a formal denomination is just one example of a larger problem within the current Justice Department. Warren’s hearing is by no means the only, or even the most egregious, example of the DOJ impugning people of faith whose religious beliefs are at odds with the Trump administration’s policy goals.

After a group of Catholics was arrested for protesting at a military facility in Georgia, they brought a religious liberty defense, explaining that their protest was a “prophetic action to raise the consciousness of society about the immorality” of nuclear weapons. The Justice Department countered that their claim was “an effort to propagandize and obtain secular public policy revisions tinged with post-hoc religious justification.” 

When a Philadelphia nonprofit attempted to open a safe-injection site for drug users as an exercise of its board members’ faith, noting on its website that “[a]t the core of our faith is the principle that preservation of human life overrides any other considerations,” the DOJ claimed the board members’ “true motivation is socio-political or philosophical — not religious — and thus not protected by RFRA.”

Although the DOJ has questioned the faith of litigants it perceives as politically progressive, Attorney General William Barr has condemned progressives as “militant secularists.” In a recent speech, Barr claimed: “Secularists, and their allies among the ‘progressives,’ have marshaled all the force of mass communications, popular culture, the entertainment industry and academia in an unremitting assault on religion.”

But Barr can’t condemn the left as anti-religious while disputing the legitimacy of any religious beliefs that contradict his own. Numerous people have gone to court seeking the right to exercise their beliefs by, among other things, welcoming migrants, protesting nuclear proliferation and serving drug users. And while the department’s own guidelines instruct agencies to accommodate religious practices “to the greatest extent practicable and permitted by law,” it has fought these requests aggressively. 

A new report by the Law, Rights, and Religion Project at Columbia Law School, “Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right,” offers a sweeping overview of the often-ignored religious liberty activism taking place outside of the conservative movement, including by those whose faith motivates them to assist immigrants, protect the environment, protest capital punishment, provide abortions, and preserve church-state separation.

The report challenges the right-wing campaign to conflate “religious liberty” with conservative Christianity and to paint those outside the right as anti-faith. Only by erasing their religious identity can Barr and the Trump administration claim to value religious freedom while putting Scott Warren and others behind bars for acting on their faith. In lifting up religious liberty activism outside the Christian right, we can recognize that it is the administration itself — not the “militant secularists” — that is engaged in an “unremitting assault” on the rights of conscience.

Elizabeth Reiner Platt is director of the Law, Rights, and Religion Project at Columbia Law School. The Project’s faculty director submitted amicus briefs in the cases of Scott Warren, Safehouse and the Catholic anti-war protestors. Follow her on Twitter @lizrplatt.