Religious Liberty in the States
A Conversation with Mark David Hall
“Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”
(George Washington, 1796)
INTRODUCTION
In 2019, the University of St. Thomas School of Law hosted a conference on religious freedom and the common good that yielded a fruitful array of articles discussing the role of religion in the development of our democratic system of governance. Arguments pervaded showing the indispensable role that religion plays in public life—not only from a strictly material standpoint, but also from the standpoint of developing communities that serve to advance the wellbeing of neighbors in their personal and professional capacities. As noted by Brian J. Grim in his extensive study, “[r]eligion provides purpose-driven institutional and economic contributions to health, education, social cohesion, social services, media, food, and business itself.”
But the economics only tells a part of this great story on the role of religion in public life. The other authors help complete some of the circle in their discussion on the role of religion in strengthening our commitments to other human rights, addressing the needs of individuals living on public support, cultivating that kind of virtue required for good citizenship, and serving as a measure of state accountability. Notably, much more research remains to be done to fully appreciate the dynamic relationship that religion plays in the welfare of the city. As Byron R. Johnson writes, this “lack of research is regrettable because what little we do know from the available research provides a preliminary indication that the impact of faith-based organizations may likely be far more consequential for the common good than people imagine." It is not just the absence of stories about the value of religion in public life that remain missing in the mainstream press, but we also fail to fully appreciate the inextricable value that religion plays in navigating human life and ultimately creating divisions that we can only overcome by first taking steps toward understanding others. Religion helps cultivate one of the most important emotional faculties missing in our society: empathy. Without this key ingredient, we will continue to see the decline of community life.
Because religion is so important, protecting the free exercise of religion and institutions that depend on its guarantees for survival is essential. Laws must be drafted to uphold our novel experiment in liberty. The freedom of religion must be understood as our “first freedom”[1] and not as a “second class right” that’s subject to the whims of contemporary fads. Yes, as Thomas Berg wisely points out, religious freedom may be limited as required for the safety of the public and the advancement of the common good. But those limits must be narrow and necessary. They must not be rooted in an effort to limit the participation of religion or defeat its role in serving the common good. “Religious freedom,” writes Angela C. Carmella, “fosters civic peace, pluralism, and stability and helps maintain the boundary between state and civil society.” With every inch you take away from the public role of religion you give a mile to the advancement of factions that may advance the destruction of community life and the diminution of principled pluralism and the rule of law. Simply put by Stanley Carlson-Theis, “since protecting the ability of the members of a political community to live in accordance with their convictions is a vital part of promoting the common good, protecting institutional religious freedom is also a vital part of promoting the common good.”
THE REPORT
In order to protect religious freedom, there must inevitably be some sense for the vitality of religious freedom in America. Here enters the Center for Religion, Culture and Democracy (CRCD) and its Religious Liberty in the States (RLS) project. Now in its second year, the RLS report (HERE) shows a fascinating national tapestry of religious freedom protection, ranging from the lesser-known questions surrounding absentee voting, to the culture war hotspots like marriage solemnization and conscience exemptions in health-care. The project aims to measure the presence of religious life across the nation—in private and in public—and the role that states have played in advancing or diminishing religion by measuring its free exercise across fourteen safeguards (see page 1 of the report). Importantly, in the forward of its Executive Summary, Jordan Ballor explains the underlying ethos of the project and the seeming tension that comes with creating a technical resource that takes seriously what Alexis Tocqueville called “the diversity of American religious life.” Ballor writes:
“Put briefly, RLS aims to employ the best practices of objective, quantitative measurement, but not only for scholarly credibility. RLS is motivated by an ethos of positive pluralism such that even the most technical elements of this project reflect a value for liberty for all people regardless of their religious commitments.”
I got a chance to talk to one of the lead researchers for this project about its design and future aims. For myself, while I agree on the underlying utility of this project, I remain skeptical that its current safeguards will ensure that all religions are well represented given the particular needs of various faiths. The good news is that those are mere technical fixes that I think can be resolved with the introduction of interfaith leaders that know how their respective communities practice their faith and where the government too often fails to protect them.
The bigger problem I suspect will be the adoption of RLS’ findings across political aisles. As Knox Thames recently wrote, "[e]ncouraging full respect for freedom of religion or belief with friend and foe is the true hallmark of consistency.” For all fifty states to move toward a commitment to protecting religious freedom akin to the near unanimity we saw with the passage of the Religious Freedom Restoration Act in 1993, religion must continue serving society without showing partiality for friend or foe. And while the economics is clearly indicative of the value of religion, journalists and politicians need to do their part in considering this evidence instead of obsessing over the witness of bad actors whose depraved conduct, in the words of Peter, “bring the way of truth into disrepute” (2 Peter 2:2 NIV). This also means that religious leaders must speak boldly to those who would appropriate their faith to advance selfish aims (e.g., power, wealth, status). Christians, for example, must take seriously the lessons of the Book of Judges in calling the community back into right-practice; to always test the spirit and never grow content in the seeming fruit of ministry, lest you fall into the error of the church at Sardis in attaining a reputation for being alive and yet being dead (Revelation 3:1). This is of course all easier said than done, which is why my cynicism outpaces my optimism regarding this project, at least for now.
CONCLUSION
With religious freedom entering its “Fourth Era” rooted in robust protections, we are in the midst of an incredible intellectual and global conversation on the role of faith in public life. The Supreme Court, in the words of John Witte, Jr. and Eric Wang, has entered into this new era with an intensity toward vindicating our first freedom. They write:
“The Court has vindicated founding principles of religious equality and religious pluralism by not merely permitting but requiring the State to treat religious groups equally, and by permitting religious speech, practices, and symbols to stand publicly, even if others might disagree. The Court has vindicated founding principles of liberty of conscience and free exercise by granting individual and corporate religious practitioners significant exemptions, autonomy, and access to public spaces and funds on both statutory and constitutional grounds. Furthermore, the Court has vindicated founding principles of separation of church and state and no establishment of religion by using history and tradition to determine what constitutes impermissible state support for or intrusion upon religion. Finally, through application of these religious freedom principles together, the Court has expanded the space for religion to flourish in private and in public more equally, more freely, and more fully. Certainly, challenges and concerns remain to be tackled, but the Court has ushered in a new and promising era for religious freedom.”
As one scholar noted, how we advance religious freedom at home will have an impact on how it is respected abroad. With the RLS report and the ongoing work of scholars across the world who focus on the integration of law and religion, we are in a great position to gauge the vitality of religious life and make the necessary changes to nourish its growth.
[1] See Michael W. McConnell, Why Is Religious Liberty the First Freedom?, 21 Cardozo L. Rev. 1243 (2000).
Mark David Hall is a professor in Regent University’s Robertson School of Government and a senior research fellow at the Center for Religion, Culture & Democracy, an initiative of First Liberty Institute. As well, Mark is the Distinguished Scholar of Christianity & Public Life at George Fox University, associate faculty at the Center for the Study of Law and Religion at Emory University, and a senior fellow at Baylor University’s Institute for Studies of Religion. In 2022-2023, he was a Garwood Visiting Fellow at Princeton University’s James Madison Program and a visiting scholar at the Mercatus Center.