Religious Liberty in 2024: Healing our deep divides
Americans are a litigious people and no less so in clashes over religious liberty. Every Supreme Court term, the court wrestles with questions about the place and importance of religion in society vis-a-vis other interests—like public health or LGBTQ rights.
Those deep disagreements often take the form of lawsuits, whether over the right to have religious convictions accommodated in the workplace, allow student groups to require leaders to subscribe to their statement of faith, or permit religious organizations to hire only like-minded people.
In a 2023 book, Religious Liberty in a Polarized Age, constitutional law scholar Thomas Berg takes on hot topics. While not all Christians will agree with him, they’ll likely agree with his goal: to protect religious liberty while also reducing the heat over such disputes. I recently conducted an email interview with Berg, the James L. Oberstar Professor of Law and Public Policy at the University of St. Thomas School of Law in Minnesota. Here are edited excerpts from our conversation.
Polarization is nothing new in American society, and yet you rightly point out that the divisions—and the rhetoric—have become sharper and more heated in recent years. Sometimes it seems as if we are having two different conversations, talking past each other, presuming the worst of our opponents. How have we come to this point?
Social scientists say it began with the “sorting” of political parties from loose coalitions into more ideological blocs. For example, Democrats historically had Southern conservatives and Northern liberals. That’s changed dramatically. When you disagree with political opponents on every issue, not just some, it magnifies distrust. The divide also runs through many social-cultural features: Biden won the vast majority of counties with a Whole Foods; Trump, the large majority of those with a Cracker Barrel. Add to this our gerrymandered districts, which encourage extreme candidates, and cable and social media, which magnify conflicting voices and actually use algorithms that send people negative news about the other side.
You make the argument that even religious liberty disputes have fueled this polarization. How do you see that continuing to play out in the coming year?
My book emphasizes two sets of disputes: attacks on the freedom of Muslims in the name of national security, and attacks on the freedom of religious conservatives (primarily Christians, but also Jews and Muslims) in the name of progressive interpretations of nondiscrimination. Although conservatives have won several recent cases, I expect they’ll face continued legal pressure, especially now that federal employment law has been read to prohibit LGBTQ discrimination. Do religious schools or social services have the right to require standards of sexual conduct from their employees? Do they retain that right when they accept government funds or other benefits? Several unresolved constitutional and statutory issues will determine the answer to those questions.
Your argument is that religious freedom should be a calming influence and not aggravate these often ugly disputes. Doesn’t that require a measure of trust many don’t seem to be able to muster? Where do we begin?
It requires small steps that can reduce distrust incrementally. I do argue in the book that the general direction must be bipartisan: laws protecting LGBTQ Americans from discrimination in employment, housing, etc., with substantial exemptions protecting objecting religious organizations and individuals. Utah enacted such a law in 2015, and it’s increased trust between those two groups. Bipartisan protections are necessary in practical terms: Bills that protect solely religious liberty will pass only in the deepest-red states, not in the states where conservatives most need protection.
