Tortured logic of a ‘Muslim ban’
Not long ago, Americans were more likely to invoke religious freedom to support the very causes, including legal access to abortion, that Christian conservatives now oppose in its name.
When the first Congress debated the Bill of Rights, the clauses on religion represented a compromise between those who wanted to prevent federal interference in established churches that many states maintained, and those who aimed to level the playing field by eliminating state support for churches.
The last state churches were eliminated in the 1830s. Still, most states privileged Christianity — often Protestant Christianity — through public school prayers, blasphemy laws and restrictions on who could serve on juries or hold public office. Faced with protests from religious minorities, authorities defended these policies in the name of religious freedom.
But by the 1970s, the courts viewed the separation of church and state as a prerequisite rather than a barrier to religious freedom. Jehovah’s Witnesses won the right to proselytize in the streets; the Amish won the right to withhold their children from public schools; and the courts ruled that prayers could not be sponsored by the public schools.
At the time, most Americans assumed that the principle of religious freedom favored pro-choice politics. Soon after the 1973 Roe vs. Wade decision, an interdenominational group of Protestants and Jews founded the Religious Coalition for Abortion Rights, later renamed the Religious Coalition for Reproductive Choice, to defend the legalization of abortion against its detractors. They contended that the American tradition of religious freedom did not allow any religious group to legally impose its strictures on all. The group’s members carried banners that read “Religious Freedom.”
They were not alone. The American Baptist Convention passed this resolution in 1981: “We recognize that the First Amendment guarantee of the free exercise of religion protects the right of a person, in consultation with her adviser, spiritual counselor and physician, to make a decision of conscience for or against abortion.” And while the Catholic Church clearly opposed legalized abortion, several lay organizations and even some bishops argued that no church should impose its own standards on all.
Meanwhile, an overwhelmingly white Christian right was turning religious freedom into its own rallying cry. Historian Randall Balmer has described how a white, evangelical right mobilized in the late 1970s against the IRS’ withdrawal of taxexempt status from racially segregated private Christian schools and against the court decisions that limited statesponsored prayer in the public schools.
In the mid-1990s, conservative evangelicals and Catholics forged a new alliance in the name of religious freedom. They now called on this freedom not only to defend school prayer and “parental choice” in education, but also to re-energize the movement against abortion (and later against gay rights and same-sex marriage).
This, too, was a reversal. In the 1970s, a few religious groups sought legal recognition for same-sex marriages on religious freedom grounds.
Ironically, the successes of the prochoice and the LGBTQ movements created the conditions for new religious freedom claims. Until abortion and same-sex marriage became legal, their opponents had no legal framework to push back against. Now, as they work to make abortion and samesex marriage illegal once again — imposing a specific conservative Christian morality on all — they invoke the rhetoric of pluralism and individual freedom to voice their dissent.
In recent years, the Supreme Court has expanded the freedom of religion in new directions. In the Hobby Lobby case, the court granted a corporation the right to refuse to provide contraceptive coverage to its employees. If religion is understood as a private affair — a matter of conscience, protected from the state — then granting religious freedom to a corporation expands the scope of the private. Rather than protecting religious minorities or employees affected by such policies, this new religious freedom further empowers the Christian majority and corporate America.
The same tortured logic of religious freedom is obvious in the Trump administration’s recent restrictions on immigrants, refugees and Muslims. Some federal judges have ruled the president’s orders on immigration unconstitutional on the grounds that they discriminate against a particular religious group.
Yet the Christian conservatives who praise Trump for protecting religious freedom seem ready to support what some applaud as a “Muslim ban.”
This was written for Zócalo Public Square.