The state of Oregon fired the first shot, so to speak, in a legal war that has been simmering for decades.
At the end of December, after years of litigation, the state’s court of appeals upheld a $135,000 fine imposed on cake bakers Melissa and Aaron Klein due to their refusal to bake a cake for a same-sex wedding — even though doing so would have violated their constitutional rights as to the exercising of their own personal religious beliefs.
{mosads}This ruling would be troublesome enough on its own — but it seems to be beyond coincidence that it comes at the very moment that the identical issue is being adjudicated on a national level, as the United States Supreme Court began to hear arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission this past month. It is a tense time for people of faith. The court will likely make a ruling by a summer of 2018, and the decision will impact the future of American religious life.
Momentous as this impending decision might be, however, religious liberty has made major strides in this country over the past year. Many have pointed to the appointment of Supreme Court justice Neil Gorsuch or President Trump’s decision to scrap the contraception mandate. But in addition to these major victories, One of the least reported-on achievements of the Trump administration during its first year vindicates, in many respects, the hope that Christians placed in the president.
Without much fanfare, the Department of Justice issued a guidance memo of October 6, 2017, bearing the subject line, “Federal Law Protections for Religious Liberty.” The memo provides detailed instruction to executive-branch agencies on how to implement federal law in a manner that respects religious liberty. This guidance not only represents the fulfillment of a campaign promise, but is in fact a striking acknowledgement of the robust protection available to all who adhere to religious beliefs and practices.
At 25 pages, it’s an incredibly thorough analysis and provides clear direction on these issues. It includes a list of 20 principles for agencies to adhere to, such as the fact that religious rights include both being able to act or abstain from acting and that religious liberty applies to both individuals and to entities. It also contains specific guidance on particular elements of agency work, including hiring, grant-awarding and rule-making. It concludes with an entire section that outlines both the constitutional and statutory protections of religious liberty.
The thoroughness is by itself significant — but there are several other reasons why Christians should celebrate this document. It represents a return to the basic principles of our Constitution, where religious liberty presides at the forefront of the Bill of Rights. The DOJ memo opens by declaring that this liberty “is … enshrined in our Constitution and other sources of federal law.” It then continues by quoting James Madison’s observation that freedom of religion “is in its nature an unalienable right,” since our devotion to God “is precedent … to the Claims of Civil Society.”
The memo then goes on to describe the full breadth of religious liberty that the Constitution guarantees us and astutely corrects two all-too-common misunderstandings on this score. Many Americans seem to think that religious liberty only applies (1) within homes or places of worship and (2) to private individuals. The document refutes these mistaken assumptions by stating that religious liberty “also encompasses religious observance and practice” in the workplace and public square and that organizations of private citizens also have rights to religious liberty.
Far from dating the document, its grounding in the historic depth and breadth of religious liberty in America serves to underscore its contemporary relevance. In recent years, we’ve strayed further and further from these basic principles. We have turned away from the self-governance and self-control religion and reason teach us and have instead invited increased government control and interference.
The Obama administration accelerated this trend by seeking to establish an aggressive form of secularism, the dangers of which are masked by empty claims of devotion to neutrality and objectivity.
We saw these centralizing, secularizing tendencies in the Affordable Care Act’s mandate that religious organizations facilitate abortifacient insurance for their employees. We also saw it in the growth of the regulatory state on President Obama’s watch, particularly in his unilateral negotiation of the Paris Accords, which was driven by his assumption that his top-down internationalist approach to climate issues should supersede the values of the people’s representatives in Congress, much less the people themselves.
Trump’s central achievement has been to roll back this interference in the mediating institutions of church, community, business, and local government. His early directives on regulatory reform allowed private companies to conduct business as they best saw fit, without fear of undue government interference. This recent religious liberty memo is cut from the same cloth: It gives both private organizations and private citizens the freedom to follow their religious convictions, without fear of government interference.
These policies are important for people of all faiths. The memo specifies that the government cannot inquire into the sincerity or the “reasonableness” of religious practice, and that it cannot grant to adherents of one faith freedoms that it does not grant to adherents of another. It reiterates that the government cannot compel a person to violate his deeply held religious convictions as the price of receiving a governmental benefit or participating in public life. Altogether, it indicates the commitment of this administration to protecting and promoting a public square alive with religious faith in all its diversity, complexity and variety.
Such commitment is particularly important for evangelicals. One of the distinctive characteristics of the evangelical faith is its dedication to applying faith to all aspects of life, not just those that are clearly “religious,” and its emphasis on acts of service and community engagement as opposed to separatism and retreat. The Trump administration has, in essence, allowed evangelicals to be evangelicals again, and to vigorously engage with the government, the marketplace, and fellow citizens without compromising their core beliefs.
This being granted — and applauded! — there is still much work to be done. The nature of executive memos means that the next president could easily instruct his agencies to administer these laws in an entirely different manner. Only an act of Congress — such as the First Amendment Defense Act introduced by Sens. Mike Lee (R-Utah) and Ted Cruz (R-Texas) — can ensure that these liberties remain intact in the decades to come.
Conservatives must cease the sectarian sniping — both religious and political — and come together to push this critical legislation. We owe it to ourselves as citizens and patriots in this republic, but, to paraphrase Madison, we owe it more profoundly to the God who is alone the true author of life and liberty.
Robert Norton is vice president and general counsel of Hillsdale College.