People For the American Way

Religious Faith and Religious Liberty: Some Dos and Don’ts for Respectful and Effective Public Conversation

News and Analysis

One of the Religious Right’s long-term political strategies has been to falsely portray criticism of the movement’s political agendas and tactics as an attack on Christianity and religious freedom. These false charges are meant to put critics on the defensive and position Religious Right leaders on a moral high ground as victims of bigotry and persecution. This strategy has been actively deployed in defense of controversial judicial nominees, with right-wing activists and their Republican allies unfairly maligning Democratic senators for trying to understand a nominees’ commitment to upholding Americans’ constitutional rights and legal protections. Falsely accusing Democratic senators of trying to keep Christians out of public life or saying they are hanging a “Catholics need not apply” sign on the federal courts is a divisive and destructive form of religious McCarthyism.

It is urgently important for progressive advocates to challenge both the damaging agenda of the Right and the cynical use of religion to prevent important questions about nominees’ approach to the Constitution and rule of law. And it is equally important not to give political ammunition to right-wing activists by saying things that can be misconstrued or mischaracterized as attacks on religious faith or freedom.

The mixing of religion and politics is inevitable and inevitably messy. It is important to wade into these waters carefully and thoughtfully.

DO embrace religious liberty as a core American value and fundamental constitutional principle.

The U.S. Constitution protects religious liberty by guaranteeing every person’s freedom to exercise their faith—and protects every person’s constitutional rights by not allowing the government to take sides in matters of religion. Religious freedom, protected by the separation of church and state, has led to a thriving, robust, diverse religious landscape in America. People of every faith and people without any religious affiliation are entitled to the same rights and opportunities as Americans.

DO make clear distinctions between religious belief and public policy. DON’T impose or imply a religious test for public office.

When considering nominees’ fitness for public office, it is not their religious beliefs that should be evaluated, but their commitment to upholding the Constitution and abiding by the rule of law, even if and when their professional responsibilities might conflict with their religious beliefs.

It would be wrong, for example, to deny confirmation to an executive or judicial branch nominee because their church teaches, or they personally believe, that homosexuality is a

sin, or that their faith is the only path to personal salvation. But it is absolutely appropriate to ask a nominee whether they will commit to upholding the law—even laws they might personally disagree with—and to ensuring that LGBTQ Americans and people of all faiths or no faith are treated fairly and equally under the law.

DO challenge distortions of religious liberty.

A person’s freedom to believe and practice their faith is, like freedom of speech, not absolute. For example, one person’s constitutionally protected religious freedom does not trump another person’s constitutionally protected right to equal treatment of the law or right to not be discriminated against under state or federal law. The government can and should make accommodations to respect individual exercise of religion, but only when that accommodation does not violate core constitutional principles or cause undue harm to others.

DON’T be bullied by false charges of religious bigotry.

What’s at stake with the confirmation of a person to a lifetime federal judgeship makes it important for senators not to be bullied by right-wing smears.

If a person has written publicly about the intersection of faith and public policy, it is perfectly appropriate for them to be questioned about their writings and about their understanding of the obligation of public officials to uphold the laws entrusted to them.

DO challenge those who would exclude people from public life based on their religious beliefs.

Some Religious Right activists and some public officials suggest that America was created by and for Christians, and that Christianity and Christians have a privileged place in this country. Some argue that the First Amendment’s religious liberty guarantees apply only to Christians. Some say that Islam is not a religion, and therefore that American Muslims are not protected by the First Amendment and are not qualified to hold public office. These assertions are false, divisive, and damaging to our society, and should be strongly rejected by responsible people regardless of their political persuasion. Holding such positions should be disqualifying for holding office.

DON’T say religion or religious people have no place in politics.

Central to the American Way is the idea that the rights and opportunities of citizenship should not be limited by a person’s religious beliefs.

Some progressive activists, frustrated by attacks on church-state separation, or harmful policies promoted by conservative religious groups, respond with some variation of “religion has no place in politics.” That kind of language can be counterproductive. It plays into religious conservatives’ strategy of portraying liberals, feminists, advocates for LGBTQ equality, and others as enemies of faith and freedom. People of all faiths have the freedom to bring their beliefs and values into the public arena.

DO make clear that creating exemptions from anti-discrimination laws based on one’s religious views can lead to an impermissible governmental favoring of one religion over another.

Some Religious Right activists claim that businesses and others with strong religious views should be exempt from laws that prevent discrimination against LGBTQ individuals or women seeking reproductive health services. But as many religious leaders have explained, such exemptions actually contradict accepted religious liberty principles. The Supreme Court has long recognized, for example, that an accommodation for one religious view that substantially harms others (such as a religiously-based exemption from a law prohibiting anti-gay discrimination) violates the Establishment Clause by favoring that religious view over others.

It’s also worth pointing out another danger of creating religious exemptions for anti-discrimination laws. Many of those same laws outlaw discrimination on other grounds, including religion, so creating exemptions based on anti-LGBT religious beliefs could create justifications for other kinds of discrimination, including discrimination based on religious views.

DON’T allow religion to be used to dismiss criticism or obscure the truth.

Nominees don’t get a pass for opposing core constitutional principles by saying that their opposition is grounded in their faith.

When judicial nominee Steve Grasz was being questioned about his long record of hostility to abortion rights and LGBTQ equality, one issue that was raised was his service on the board of the Nebraska Family Alliance, which promotes anti-equality policy positions. When Grasz defended the group by saying it is a “faith-based organization,” Sen. Orrin Hatch said, “That’ my understanding, so I don’t think that it’s a bad organization.” Of course, being faith-based does not make an organization “good” or “bad” in this context; what matters is its advocacy for policies that unconstitutionally deny equality to some Americans.

It’s important to note that the American Bar Association gave Grasz an “unqualified” rating because many people interviewed about his nomination raised concerns about his “open-mindedness, freedom from bias and commitment to equal justice under the law.” People “raised serious doubts that Mr. Grasz would be able to set aside his role as an advocate and his strongly held beliefs, in order to rule impartially as is required of a judge.” That, and not his religious beliefs, is the relevant issue.

DO stay grounded in the Constitution.

Thanks to the First Amendment, the U.S. has no official religion, and peaceful and respectful religious pluralism has thrived in the U.S. People of all faiths and people with no religious affiliation find common ground in the Constitution. As Rep. Jamie Raskin has noted, public officials may place their hand on a Bible when being sworn in, but their oath is to uphold the Constitution. The same is true of Rep. Keith Ellison, a Muslim member of Congress who used a Quran for his ceremonial swearing in, pledging to uphold the same Constitution. Some Religious Right activists argued, outrageously, that Rep. Ellison should be denied his seat in the Congress.


Defending Religious Liberty, judicial nominations, religious liberty