When David French and I first met around 2010, our friendship felt unlikely. He was deeply involved in Republican politics and had served in Iraq. I had never voted Republican and was committed to nonviolence. But his courage of conviction and kindness amid disagreement made us fast friends. (David became an independent in 2016, after Donald Trump received the Republican presidential nomination.)
When I met him, David was a religious liberty and free speech litigator, a role he held for over two decades. He is now a senior editor for The Dispatch and a contributing writer to The Atlantic. Some of the most discussed Supreme Court cases last year involved religious liberty disputes. As a new Supreme Court term begins on Oct. 3, I asked David to speak to me about the state of religious freedom in America. This interview has been edited and condensed.
To begin with the basics, what are we talking about when we talk about religious liberty? What is it, exactly?
Under American constitutional law, religious liberty is not a right limited to people of faith. If you want to talk about what religion is, ask: What is your ultimate belief system, your ultimate worldview? What is the source of the morality that guides you?
One of the ways that I try to define religious liberty is a right to believe, speak and critically act in accordance with your deepest beliefs, so long as you do not infringe upon the rights of others.
Oftentimes when religious liberty cases have gone through the Supreme Court, even as a Christian and a priest, I feel conflicted. If it’s a religious liberty win, it can still feel like a bit of a cultural loss to me. When Kennedy v. Bremerton School District, a case deciding if a public school coach could pray after a football game, was argued, I knew that for a few weeks everyone was going to debate whether Christians ought to pray on the 50-yard line instead of, say, whether Jesus rose from the dead. Or even something like how to help the economically disadvantaged in this country. Many people expressed disapproval at using public prayer in a way that seemed like a spectacle.
Or the Christian flag case in Massachusetts, when judges ruled unanimously in favor of religious liberty. I hate the idea of a Christian flag. I’m just not sure the Christian flag has ever inspired anyone’s love for Jesus.
So help me out here. How should we think about these kinds of cases? Are they good for religious discourse in America?
First is the matter of what is best practices for a Christian or persons of other faiths. What is best practices as far as the way that they should publicly exhibit their faith? That is a different argument and a different question from whether or not the speech should be constitutionally protected.
Let’s take it out of the religious context. Let’s say, for example, you are focused on ending police brutality in the United States of America. There’s a live debate about whether, for example, kneeling during the national anthem is a good or effective way of advancing your cause. So that’s an important debate. That is not at all relevant to the constitutionality of kneeling during the anthem. The ability to be free of state punishment for engaging in private protest, such as kneeling during the anthem, is absolutely unquestioned.
And one of the unfortunate aspects of conversations about constitutional rights is we often conflate our own perception of the morality or wisdom of the underlying speech with the existence of the right to engage in the underlying speech.
If speech is popular, it doesn’t really need constitutional protection. Popularity is its own protection.
So, on one hand, it is the responsibility of the government to protect liberty. It is the responsibility of citizens to exercise that liberty for a virtuous purpose.
And that’s the social compact in the U.S. And one of the reasons why people feel conflicted when they see somebody who is exercising liberty for dark ends is that you see the compact being broken in some way, often on the part of the citizen. But it is still the responsibility of the state to defend liberty. Because we rightly do not trust the state to define — or even to know or to truly understand — what is and is not moral when it comes to deep and profound political arguments.
I think the Christian flag is absurd. But if the government said, “You cannot fly the Christian flag,” I would be the very first person to say, “That is not your choice to make, government.” Let me argue and try to convince fellow Christians that the Christian flag is absurd. But that’s not the role of the government.
Beto O’Rourke, who is currently running for governor in Texas, where I live, has said that religious institutions — including schools and charities — should be stripped of their tax-exempt status if they oppose same-sex marriage.
How would you reply to him?
First, there’s a legal response to that. O’Rourke’s position has no chance of prevailing at the Supreme Court of the United States.
One of the most important recent religious liberty cases was a case called Hosanna-Tabor, which was brought during the Obama administration. The Obama administration was attempting to extend civil rights laws that prohibit discrimination at the federal level in race, sex, religion, et cetera, into the realm of pastoral hiring or ministerial employees. And the Supreme Court rejected that attempt, nine to zero.
There are certain ideas about religious liberty that are widely held across the judicial spectrum. There’s been an unbroken record of victory for religious liberty cases at the Supreme Court reaching back a decade plus. But you’ll also find that the majority of those cases are supermajority decided.
Religious liberty, in other words, is not hanging by a thread of a single justice. It’s not hanging by a thread of two justices. You would have to have a generations-long transformation of the court in a particular direction to fundamentally alter American religious liberty law.
The additional answer is essentially, what Beto is saying here is that millions upon millions of Americans who have a different view of sexual morality, rooted not in bigotry, not in hatred, but in a deep and profound belief in a particular scripturally informed definition of human sexuality, would essentially become second-class citizens. Their institutions, their churches, their schools would be placed at a profound disadvantage in American law and American life because of their view. I know people have profound disagreements. But the mere fact that I disagree with a religious point of view does not render it bigoted.
Do you have hope that there’s a way that we can both protect the civil liberties of gay and trans people and also protect the religious liberty of many Christians, Muslims, Jewish people and others with traditional sexual ethics?
Not only is it possible, it’s happening. People of all faiths and no faith at all have more freedom from government interference with their rights of conscience and their beliefs than any time in American history.
Now, why does it not feel like that? It doesn’t feel like that because we’re also living in a time of cultural intolerance. And so when somebody says, “Well, you’re living in a golden age of liberty,” that feels strange to hear that, it kind of rings hollow.
Because while the law has an impact on culture, obviously, there are many other things that impact culture as well. We have to rediscover not just the law of free speech. We also have to rediscover a culture of free speech.
And rediscovering a culture of free speech means not just a modicum of tolerance.
But if you’re going with a presumption of good faith, and stand up for those people for whom you’ve granted a presumption of good faith until they’ve rebutted it — until they’ve demonstrated actual evil — then I think you’re going to go a long way towards cooling down this national temperature.
I hear what you’re saying, but I think there are people who would say that those who would not perform a same-sex wedding are actually evil. Or there are people on the right who would say that those who believe that public libraries should be able to host a drag queen story hour are actually evil. So how can we have religious liberty and a culture of free speech in that context?
If you’re beginning to reach a point where you’re looking at millions of your fellow citizens and seeing them as obviously evil, I think that’s when some self-examination is necessary.
And that’s when we have to have the humility to begin to re-examine many of our own priors. But that’s very difficult, and it’s getting increasingly difficult because one thing that we know is that more and more Americans are walling themselves off into like-minded communities. This is a phenomenon that Cass Sunstein has identified as the law of group polarization. When people of like mind gather, they tend to become more extreme. If you find that your social circle is dominated by people who share your point of view, you’ll often become more extreme without even realizing it. Just like the fish that doesn’t know that it’s wet.
One thing that I think is very important is, to the extent that it’s possible — and sometimes it’s very difficult, depending on how thick your bubble is — seek out relationships with people with opposing points of view. To the extent that you can’t, at least seek out the best expression of the opposing side’s point of view online.
What are the important religious liberty cases we should be watching and thinking about in this upcoming term?
The biggest one I think is 303 Creative LLC v. Elenis. This is a case out of Colorado where a website designer refused to design websites for a same-sex wedding.
This is a truly important case about the collision between anti-discrimination laws and, for lack of a better term, pure expression, or artistic expression. I think Americans, regardless of where you stand on same-sex marriage, should be very leery of granting the government the power to determine when a creative professional can be compelled to create art. So, for example, should a graphic designer be compelled to create art for a Patriot Front event and then be subject to litigation or punishment on the basis that they’re racist for disagreeing because the Patriot Front is overwhelmingly white?
But those folks who strongly disagree with the graphic designer’s decision, I completely understand that disagreement. At the same time, ask yourself: Would you want your own artistic expression compelled by the government? Most people are going to answer no. They don’t want that. They don’t want their rights of conscience overridden by the government. They wouldn’t want to hand that power to the opposing political party. Regardless of if you’re red or blue, you should want the government out of your freedom of conscience.
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Tish Harrison Warren (@Tish_H_Warren) is a priest in the Anglican Church in North America and the author of “Prayer in the Night: For Those Who Work or Watch or Weep.”