Religious freedom is rarely a rallying cry on the left. For decades, the religious right has staged a highly organized campaign to chip away at the wall of separation between religion and government. The cultural impact of the Hobby Lobby and Masterpiece Cakeshop cases show just how effective they’ve been.
So, Rep. Tulsi Gabbard’s (D-Hawaii) decision to champion “the right to worship or not worship, safely and without the fear of retribution” came as a welcome surprise as she embarked on a campaign for the 2020 Democratic nomination.
Unfortunately, she profoundly missed the mark.
In a Jan. 8 op-ed, Rep. Gabbard sidestepped the ongoing assault on religious freedom altogether, instead bashing fellow Democrats involved in vetting the Trump administration’s judicial nominees. Since The Hill published her piece, she has been joined by Michael Gerson in the Washington Post, members of the Religious Freedom Institute, and even Sen. Ben Sasse (R-Neb.), all of whom allege that members of the Senate Judiciary Committee displayed anti-Catholic bias in their questioning of Amy Coney Barrett and, later, Brian Buescher.
There is no religious test for public office, elected or appointed. Our founders believed this was so essential to American democracy to merit inclusion in Article VI of the Constitution. To suggest that current members of the Judiciary Committee are attempting to impose one is both false and disingenuous.
These allegations are exceedingly narrow in their focus, so much so that they overlook the very first clause of the First Amendment. There we find two complementary rights of religious freedom: the right to believe as we choose, without fear or discrimination, with the security that the government will not show favor toward a particular religious group or toward religion in general.
It is that second right, encapsulated by the Establishment Clause, which demands that our elected officials and our judges separate their personal faith from their public obligations. When an officeholder uses their authority to advance their own religious beliefs, to the detriment of those who hold a different view, they directly threaten the right of every American to be free from the coercive power of the government.
I cannot live out my own faith when my representatives mandate that I live by theirs.
This may seem self-evident, but across the country politicians and judges are attempting to bend American law to reflect the tenets of their faith. We need to look no further than Box v. Planned Parenthood of Indiana and Kentucky, which was appealed to the Supreme Court last fall.
As governor of Indiana, Vice President Mike Pence fought for and eventually signed an omnibus bill known as HB 1337 that substantially restricted access to abortion. The bill also required that hospitals treat fetal remains – resulting from a miscarriage, abortion, or otherwise – as a deceased person instead of abiding by long-standing protocols around tissue disposal.
Pence, who often insists that “I’m a Christian, a conservative and a Republican … in that order,” has been unequivocal in his faith-based belief in fetal personhood. As a matter of religious freedom, he and the millions of Americans who share his conviction have the right to make reproductive health decisions that align with their faith. And, should any person experience the loss of a pregnancy, they may find comfort in religious rituals of saying goodbye.
But the reality is that others may not – and that is also their right. To mandate that every person participates in these rituals is a gross act of religious coercion, at a time when privacy and autonomy are most vital.
Contrary to what Rep. Gabbard seems to think, preventing religious coercion is exactly the type of assault on religious freedom that members of the Judiciary Committee have in mind when they ask nominees if they can separate their religious convictions from their judicial discernment. Their inquiries are not meant to ferret out particular religious convictions as a sort of litmus test. To do so would be both morally wrong and legally prohibited.
But any nominee, elected or appointed, should not shrink from the question of whether they would allow their personal beliefs to supersede the obligations of the office they seek.
This is simply a matter of constitutional fealty: whether the nominee would uphold the mandate of the Establishment Clause to separate their faith from their public duties. Those of us who share those beliefs, along with those who don’t, should listen closely to the answer.
Katy Joseph is policy and legislative advisor of Interfaith Alliance.