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Reclaiming Secularism is the Key to Protecting Religious Liberty

May 4, 2015

Over the past few years, two topics have come to dominate the discourse about religion in America. The implementation of the Affordable Care Act and especially the rapid acceptance of marriage equality have prompted social conservatives to decry the supposed threat to "religious liberty." At the same time, the rise of "the Nones"--the growing numbers of Americans unaffiliated with any formal religion--has produced triumphalism among some atheists and despair on the part of some of the faithful.
Unfortunately, these twin debates have produced heat, but not light, and for much the same reason. Simply put, in the United States terms "religious liberty" and "secularism" don't mean what their appropriators think they mean. Our First Amendment protections provide a shield from government interference with the practice of our own faiths, not a sword to prevent others from the exercise of speech and religion we might find offensive. And in the uniquely American context, "secularism" is not a spiritual philosophy embracing atheism or godlessness, but a political creed which recognizes that the separation of church and state is the surest protector of true religious liberty for all. As our religious diversity increases in the years to come, reclaiming these finest of American traditions will become even more important.
For conservatives like Bill O'Reilly, the so-called "secular progressive movement" has long been a convenient straw-man to highlight the supposed "denigration of people of faith." But it has been the lazy stereotyping by mainstream media outlets that have produced a distorted picture of secularism in America. In 2008, CBS News reacted this way to a survey by the Pew Research Religion & Public Life Project which showed that 16 percent of 35,000 Americans were unaffiliated with any religion at all, and 44 percent has switched faiths or denominations at least once in their lifetimes:

The unprecedented survey of religion answers many concerns about a secular, morally void America. To the surprise of many experts, Americans are still deeply religious, with 84 percent of adults claiming a religious affiliation, CBS News correspondent Wyatt Andrews reports. [Emphasis mine.]

Leave aside for the moment whose "many concerns" Andrews was advancing and his insulting conflation of "secular" and "morally." And backburner for now that only a small fraction of Pew's "Nones" (1.6 and 2.4 percent, respectively), called themselves "atheist" or "agnostic." As historian Wilfred McClay summed it up in 2007, it is "political secularism" which is the defining feature of America's thriving--and protected--marketplace for religion:

[T]here's a problem with the word "secularism." It means so many different things. [But] the distinction I want to make is between philosophical secularism, which is secularism as a kind of godless system of the world, a system of beliefs about ultimate things, and secularism in a political sense: that is, secularism as recognizing politics as an autonomous sphere, one that's not subject to ecclesiastical governance, to the governance of a church or religion or the church's expression of that religion. A secular political order may be one in which religious practice or religious exercise, as we say, can flourish.

Flourish, indeed. While the percentage of Americans "unbranded" with a specific faith grew from 8 percent in 1990 to 16 percent in 2008 and 20 percent in 2012, the United States remains a deeply religious country. (The 2015 American Values Atlas put the figure at 22 percent.) In 2012, Gallup like Pew found a nation that was around 77 percent Christian, with 69 percent of American adults reporting they "are very or moderately religious, based on self-reports of the importance of religion in their daily lives and attendance at religious services." It's no wonder Gallup's Frank Newport titled his book, God is Alive and Well.
Unlike the empty cathedrals in Western Europe where the people long ago turned against the churches and clerical power established by governments, religiosity is still thriving in the land where Thomas Jefferson reassured the Danbury Baptists that:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State.

While the wall of separation between Church & State advocated by John F. Kennedy may make the likes of Rick Santorum "almost throw up," the political secularism described by Jefferson remains the "expression of the supreme will of the nation."
The numbers tell the tale of America's secular majority. While Americans may disagree about prayer in schools or the display of nativity scenes on public land, the separation of church and state is seen by most as an essential guarantee of religious liberty, freedom and diversity. A 2004 Gallup poll found that 55 percent of people said organized religion has too much or just the right amount of political influence. A 2011 poll conducted by Americans United for Separation of Church and State reported that 67 percent agreed (48 percent strongly) that the Constitution mandates, well, the separation of church and state. In March 2012, a YouGov survey revealed that:

By 41% to 34%, the public overall believes the line between church and state should be absolute. But that position is taken by nearly two out of three Democratic voters and only 24% of GOP voters. Over half of Republican voters disagree.

That summer, the Washington Post and the Kaiser Family Foundation found that 68 percent of respondents felt there was either too much religious or spiritual influence (36 percent) or the right amount (32 percent) in politics. Identical 55 percent majorities said that organized religion should stay of politics and that the United States needed to maintain a "high degree of separation" of church and state. In the fall of 2014, another Pew survey showed that a growing number of Americans (72 percent) felt that religion's influence was waning. Nevertheless, 63 percent (the same figure as in 2008) said that houses of worship should not come out in favor of political candidates.

Remember, these strong endorsements of political secularism in the United States come from an American people among whom over 90 percent believe in God or a universal spirit.
To be sure, there are deep partisan political differences on these issues, differences fueled by age and church attendance imbalances between Democrats and Republicans. And yet, on the issue of marriage equality--the very controversy where Republican hardliners claim religious liberty is most at risk--social conservatives are increasingly on their own.

The American Values Atlas produced by the Public Religion Research Institute found that in 36 states, a majority or plurality of residents supported the right of lesbian and gay Americans to marry. But among the nation's major religions and denominations, white evangelicals (27 percent) and Muslims (42 percent) did not provide majority backing of same-sex marriage. AS PRRI CEO Robert Jones explained the rapid evolution of public opinion:

A decade ago, the most supportive religious groups were white mainline Protestants and Catholics, with 36 percent and 35 percent support, respectively. Today, major religious groups reside on both sides of this issue and within many key groups--such as Catholics--support among rank and file members is now at odds with official church opposition

Making matters worse for the likes of Mike Huckabee, Ted Cruz, Bobby Jindal and their ilk, the American public has turned against the new religious freedom laws introduced in many red states. In the wake of Governor Mike Pence's RFRA debacle in Indiana, solid majorities of Americans now oppose allowing business owners to refuse service to gay weddings:

That picture is a far cry from the dystopian right-wing nightmare of "liberal fascism" (Cruz) intent on "criminalizing Christianity" (Huckabee). Conservatives who proclaimed after the Charlie Hebdo massacre that in the United States there is "no right not be offended" must have quickly forgotten that episode. As Louisiana Governor and 2016 GOP White House hopeful Bobby Jindal recently defended his support the Pelican State's proposed "Marriage and Conscience Act":

The legislation would prohibit the state from denying a person, company or nonprofit group a license, accreditation, employment or contract -- or taking other "adverse action" -- based on the person or entity's religious views on the institution of marriage.
Some corporations have already contacted me and asked me to oppose this law. I am certain that other companies, under pressure from radical liberals, will do the same. They are free to voice their opinions, but they will not deter me. As a nation we would not compel a priest, minister or rabbi to violate his conscience and perform a same-sex wedding ceremony. But a great many Americans who are not members of the clergy feel just as called to live their faith through their businesses. That's why we should ensure that musicians, caterers, photographers and others should be immune from government coercion on deeply held religious convictions.

But corporations are not churches. Business owners are not rabbis, priests, imams or reverends. That's why most Americans intuitively and the Supreme Court explicitly recognize the concept of a "ministerial exception" in discrimination cases brought against houses of worship, religious schools and other religious organizations. (In 2012, the Roberts Court even ruled unanimously against a teacher who sued her Evangelical Lutheran school for violating the Americans with Disabilities Act for firing her after her diagnosis of narcolepsy.) As any good free marketeer will tell you, the marketplace is where buyer and seller come together--each armed with perfect knowledge and meeting as equals--to complete a commercial exchange.
As it turns out, the authors of the 1993 federal Religious Freedom Restoration Act (RFRA) will tell you the same thing. "Once you went into the commercial marketplace," the law's architect Rep. Jerry Nadler (D-NY) explained, "It was always understood you were subject to the law there." And before the Supreme Court's 2014 Hobby Lobby ruling declaring that privately-held businesses could refuse to comply with Obamacare's contraception mandate on religious grounds, the Supremes thought so, too.
In the 1981 case of United States v. Lee, the Supreme Court ruled that Amish farmer Edwin Lee could not refuse to pay Social Security payroll taxes for his employees despite his religion's clear rejection of social insurance:

"When followers of a particular sect enter into commercial activity as a matter of choice," the Court's unanimous opinion said, "the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity."

In Employment Division v. Smith (1990), Justice Antonin Scalia wrote the majority opinion rejecting the claims of two Native Americans denied unemployment benefits for having ingested peyote in keeping with their religious practices. "To permit this," he wrote in Smith, "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."

"The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind," he wrote, "ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races."

It was Smith's loss while privately practicing his particular rituals that led a bipartisan Congressional majority to pass and President Bill Clinton to sign the federal RFRA law in 1993. After roughly 20 states passed their own RFRA laws to prevent their governments from substantially burden religious exercise unless serving a compelling interest in the least intrusive way, Congress' legislative intent was unchanged. As Nadler lamented:

"It was never intended as a sword as opposed to a shield. Once you went into the commercial sector, you couldn't claim a religious liberty to discriminate against somebody. That never came up. It was completely obvious we weren't talking about that."

That's one reason why it's so preposterous for those like Senator Ted Cruz (R-TX) to claim, "Religious liberty has never been more under attack." Another reason is because, simply put, the religious right is winning. As I wrote last June in the run-up to Justice Samuel Alito's majority opinion in Hobby Lobby:

The right-wing outcry about a supposed war on religious freedom is especially galling--and more than a little ironic. After all, less than two months ago in Town of Greece v. Galloway, the Roberts Court ruled that sectarian Christian prayers used to open a town council meeting did not violate the constitutional prohibition against government establishment of religion. On Thursday, the Supreme Court in McCullen v. Coakley ruled that 35 foot buffer zones created to protect patients entering family planning clinics in Massachusetts were unconstitutional. (As Sarah Posner summed up the opinion limiting women's protections from verbal harassment and threats of violence, the Court in essence concluded that "your uterus is 'an important subject' about which your fellow citizens 'wish to converse.'") In April 2011, a 5-4 majority upheld an Arizona law designed to evade restrictions on school vouchers by giving gives taxpayers there a dollar-for-dollar state tax credit of up to $500 for donations to private "student tuition organizations." Meanwhile at the White House, President Obama has continued to pour billions of Americans' tax dollars into George W. Bush's so-called "faith-based initiatives," despite his unfulfilled 2008 campaign pledge to protect beneficiaries and employees alike from discrimination practiced by grant recipients.

But there's another reason why conservatives protesting a mythical threat to "religious liberty" should be careful. They may get what they ask for. After all, it's not hard to imagine a long line of court cases where Christian Americans are on the receiving end of RFRA lawsuits or find themselves stymied by religious minorities using the very same religious freedom laws. Already, an atheist "reason station" in a Michigan city hall and "Satanic" coloring books for Florida schoolchildren are early indications of the "religious liberty" crowd's faith-based blowback. (For other examples of how religious freedom statues could boomerang on their supporters, see here and here.) And that prospect of a Hobbesian war of litigation of each against all is even more likely as the United States grows even more religiously diverse.
According to the American Values Atlas, the United States is no longer a majority Protestant nation. At 22 percent of the population, the religiously unaffiliated (again, a group among which atheists and agnostics are still a minority) make up the same share of Americans as Catholics. In 13 states, primarily in the Northeast and the Northwest, the unaffiliated are the single largest group. And while the shares of white, non-Hispanic Protestants and Catholics continue to decline, immigration and the aging of so-called "mainline" faiths will dramatically change the complexion of the American religious landscape by 2050. As Pew recently forecast (see chart at top):

In the United States, for example, the share of the population that belongs to other religions is projected to more than double - albeit from a very small base - rising from 0.6% to 1.5%. Christians are projected to decline from 78% of the U.S. population in 2010 to 66% in 2050, while the unaffiliated are expected to rise from 16% to 26%. And by the middle of the 21st century, the United States is likely to have more Muslims (2.1% of the population) than people who identify with the Jewish faith (1.4%).

Yet a small minority of Christian Americans--virtually all of them Republicans--are responding to these changes in the worst--and most un-American--ways possible. Some legislators want the Bible to be the "state book" of Tennessee. An Arizona lawmaker wants to require her state's residents to go to church on Sundays. In Idaho, her fellow travelers want to declare theirs a "Christian state." And as ThinkProgress reported in February, a majority of Republican primary voters apparently want to shred the United States Constitution in God's name:

A national poll of Republican primary voters conducted by Public Policy Polling finds that 57 percent of these voters support "establishing Christianity as the national religion." The First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion."
Only 30 percent of Republican voters believe that Congress should not make a law respecting an establishment of religion, according to the poll.

As the Supreme Court was hearing oral arguments this week in the marriage equality cases, a group of the usual suspects among the religious right signed a pledge promising civil disobedience if the Roberts Court legalizes gay marriage nationwide. In it, they essentially declared that gay Americans have no rights Christians are bound to respect:

We will view any decision by the Supreme Court or any court the same way history views the Dred Scott and Buck v. Bell decisions. Our highest respect for the rule of law requires that we not respect an unjust law that directly conflicts with higher law. A decision purporting to redefine marriage flies in the face of the Constitution and is contrary to the natural created order. As people of faith we pledge obedience to our Creator when the State directly conflicts with higher law. We respectfully warn the Supreme Court not to cross this line.

Meanwhile on the pages of the New York Times, America's self-proclaimed arbiter of character and morality David Brooks worries about "Building Better Secularists":

Over the past few years, there has been a sharp rise in the number of people who are atheist, agnostic or without religious affiliation. A fifth of all adults and a third of the youngest adults fit into this category...
It seems to me that if secularism is going to be a positive creed, it can't just speak to the rational aspects of our nature. Secularism has to do for nonbelievers what religion does for believers -- arouse the higher emotions, exalt the passions in pursuit of moral action.

Sadly, Brooks' is a narrow, confused, blinkered and distinctly un-American notion of "secularism." What Pew called the "Nones" are mostly on a personal spiritual journey that may bring them to an established faith tradition or concepts of God, ethics, community and awe that may be uniquely their own. The small share of atheists and agnostics, too, are generally not lockstep followers of Richard Dawkins, Sam Harris or Daniel Dennett. To elevate and protect America's highest ideals of religious liberty and citizenship, we need Americans of all faith traditions--and none--to reclaim true American secularism. By both keeping government out of the people's religions and religions out of the government, the United States of America can best, as Jefferson put it, "comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination."


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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