Amy Coney Barrett’s Supreme Court nomination underscores the battles to come over Roe v. Wade and religious liberty
Four years ago the U.S. Supreme Court ruled 5-4 in favor of same-sex marriage. Despite the closeness of the vote and faulty reasoning in the majority decision, that battle (unlike the 47-year battle concerning abortion) seems to be over—for now.
Persevering pro-life counselors outside abortion businesses contribute to some last-minute changes of heart, but pro-Biblical-marriage counselors are not standing outside city halls and wedding chapels pleading with same-sex couples about to make their vows.
The gay lobby, though, is not declaring victory and going home. It’s pressing for unconditional surrender, not just acceptance. Christians need to respond to attacks carefully and non-hysterically. That’s why Becket attorney Luke Goodrich’s Free to Believe: The Battle Over Religious Liberty in America—a reasonable and hype-free work—is WORLD’s Book of the Year in the Understanding America category.
The battle over wedding cakes and nuptial photographs is only one among others—contraception and abortion are still hot issues—so Goodrich’s overview gives an excellent context for understanding the headlines of the next several years. Here’s an abridged and edited transcript of Sarah Schweinsberg’s conversation with Goodrich.
You write that violations of religious freedom are when the government demands what belongs to God. What or who determines what belongs to God versus the government? In American law, we start with freedom of belief. The Supreme Court has repeatedly recognized that freedom of belief is basically absolute. But the freedom to act on your beliefs is necessarily limited. And that’s really the hardest challenge: How do you discern the limits of religious freedom?
Do health, welfare, and safety concerns transcend any free religious context? Just because the government invokes health or safety doesn’t give it a blank check to restrict religious practices. Take our Hobby Lobby litigation in the Supreme Court. The government required many businesses across the country to provide insurance coverage for all forms of contraception, including those that could cause an abortion.
What happened? We invoked the Religious Freedom Restoration Act, RFRA. It creates a balancing test, says if the government is going to substantially restrict religious practices, the government must prove that imposing the restriction on the religious person is “the least restrictive means of furthering a compelling governmental interest.” And so the government has to have a really, really powerful interest, a compelling interest—and it has to show that the law is really the only way to further that interest.
Has the federal RFRA lost support? It passed in 1993 by unanimous consent in the House, and 97-3 in the Senate. Bill Clinton signed it into law. A diverse, bipartisan array of civil rights groups supported it. Fast-forward 20 years. Progressive groups called them a license to discriminate against LGBT individuals. If you look at how RFRA and state RFRAs have been applied in the 25 years since enactment, they have not been used as anything like a license to discriminate. They’ve primarily benefited religious minorities.
You write that when religious freedom is violated or restricted, other human rights will also be violated. Why do other rights hinge on religious freedom? Religious freedom is rooted in human dignity and who we are as human beings. When the government restricts religious freedom, it’s basically denying who we are as human beings and denying the image of God in human beings. Once the government takes that to itself, there’s really no more limit on what the government can do.
Why should Christians be concerned about protecting the religious liberties of all religions? One argument is from self-interest: When the government has power to restrict religious freedom for one faith group, it also has power to restrict religious freedom for Christians. A second reason is the argument from evangelism: We ultimately want people to come to Christ. When we use government power to suppress the exercise of non-Christian faiths, it doesn’t bring people closer to Christ. A third argument is from principle and the definition of justice. When the government restricts religious freedom, even for non-Christians, it’s doing something that’s unjust, and we as Christians should be seeking justice for all people.
What is the difference between morality and legality—and why is complete moral acceptance and not just legality so important to the dominant secular culture right now? Our culture currently draws a distinction between good religion and bad religion. Good religion according to our culture is tolerant. It doesn’t make absolute truth claims. A bad religion makes absolute truth claims and tries to evangelize and actually convert people. I think some of the modern beliefs about abortion, human sexuality, and even who we are as human persons are held with an increasingly religious fervor. It’s not enough to hold those convictions and be left alone. You want to convert others to holding those same convictions.
When is discrimination a necessary part of human judgment, and when is it morally wrong? The legal scholarship on what makes discrimination wrong is very badly under-theorized. It’s very hard to come to clear agreement on what’s invidious discrimination that the law should punish and what is legitimate “discrimination” that’s necessary for running an organization.
Do you have any predictions on how long it will take for all of these legal questions concerning abortion, gay rights, and religious freedom to shake out? We’ll be arguing about these issues or some variation of them until the Lord returns or our civilization disintegrates. But there are a lot of things we can do to push the outcome in a better direction. We’re not called to win a culture war. We’re not called to fix the American legal system as our primary calling. We’re called to honor Christ in everything we do and everything we’ve been given to do. When I’m litigating a case, it helps tremendously if the organization has thought through its religious beliefs, inculcated those beliefs throughout the organization as adopted policies that are consistent with those beliefs, and enforced them consistently but in a kind and humble manner. The other side in these cases is always looking for the bad examples. It’s extremely unlikely that we’ll have a single case that provides a clear answer and resolves all these conflicts.
How do we get people who are not religious to care about religious freedom? There are purely philosophical arguments about how religion affects society. When religious people are perceived as being in a pitched battle against everything the culture holds dear, others are not very excited to protect religious freedom. But when we’re caring for the poor, educating people, providing homes for children in foster care, providing for the needs of strangers, that opens the door for others to say these religious people are doing a lot of good, and we should respect what they’re doing.
What do Christians who are afraid of the current climate need to know? One of the biggest problems with Christians and religious freedom today is how much we’re driven by fear of losing our rights, fear of suffering, fear of losing the culture war. As Christians, we’re called to approach this not with fear but with faith. Part of that is having basic knowledge you need to know about religious freedom, where it comes from, how it’s threatened. Part is knowing about many of the victories, the good results. Ultimately, it’s getting recentered from trying to win a fight to protect ourselves, to seeking an issue of justice and trusting the sovereign God to prosper us in our work.
Christians on the other side of the spectrum who aren’t concerned at all: What do they need to understand? They need to have a consistent ethic of justice. When a Christian ministry is hugely effective in placing children in foster care and supporting foster families like Christian ministries, they are caring for the fatherless and for the widows. When it gets shut down because the government says, I don’t like your beliefs about human sexuality, that is unjust. It also harms children who would otherwise be helped. And so if you care about justice, you also need to care about religious freedom.
BOOK OF THE YEAR
Free to Believe: The Battle Over Religious Liberty in America
Becket law firm attorney Luke Goodrich shows that some leading abortion and gay rights activists are not content with legalization, acceptance, and even general approval. We’ve already seen the assault on anyone who doesn’t applaud a same-sex marriage, but what if declining to perform an abortion becomes an illegal act of sex discrimination? Goodrich shows how to combat views that not baking a wedding cake is the same as refusing to serve lunch at a diner. He also takes on misunderstandings among Christians who are pilgrims, martyrs, or beginners: Religious freedom should not be a tool for regaining Christian cultural dominance.
How America’s Political Parties Change (And How They Don’t)
Many pundits in their 20s and 30s talk of unprecedented developments in American politics, but such chatter often means that they haven’t seen something before during their brief careers. Michael Barone, co-author for half a century of The Almanac of American Politics, has seen it all and refuses to panic. He points out that our current political situation resembles the polarized partisan parity of the 1880s, and that Republicans have always formed themselves around a core group considered to be “typical Americans,” while Democrats have typically been a coalition of disparate demographic groups.
Alienated America: Why Some Places Thrive While Others Collapse
Tim Carney connects the dots: White Americans are less likely to attend religious services when they are unemployed and more likely to be divorced. Less church and community involvement often leads to a give-up attitude that among 10 percent of the populace worsens job prospects. Carney is also helpful in distinguishing between two kinds of Trump supporters. When Trump was running in the primaries against opponents like Jeb Bush, Ted Cruz, Marco Rubio, and John Kasich, his base was “white evangelicals who do not go to church.” Phase two support came once Trump won the nomination: “white evangelicals who go to church.” For more, see WORLD’s Carney interview in our July 19 issue.
Dignity: Seeking Respect in Back Row America
With gut-punching photographs and stories, Chris Arnade shows what life looks like from the “back row,” the benches of the unemployed and uneducated, the drugged and depressed, the homeless and hopeless. When Emily Belz interviewed Arnade, he described himself as an atheist who nevertheless understood the spiritual hole in many lives. Is Arnade himself on the path to faith in God? He says he doesn’t have the humility “to understand other things greater than we can understand,” but his book can help the affluent and middle class understand how the other fifth lives. For more, see WORLD’s Arnade interview in our Oct. 26 issue.
Who Killed Civil Society? The Rise of Big Government and Decline of Bourgeois Norms
Howard Husock shows how poverty-fighters a century ago promoted an American three-self doctrine: self-respect, self-control, self-government. He compares that emphasis on honesty, trustworthiness, and truth with a social work textbook published in 2012 that turns the spotlight not on what the poor can do but on how the rich “oppress, marginalize, alienate, or create or enhance privilege and power.” That textbook misses the need to promote what Husock calls “constructive norms for personal behavior … the ethical soil in which individuals and their communities can thrive.”
Who Killed Civil Society? reminds me of Marsh Ward, a leftist who created Clean and Sober Streets to help drug addicts in Washington: Ward used to think society imprisoned them in a brick cell, but “if I take a guy from outside, sober him up, teach him how to read, and teach him the computer, there’s a hole in the wall for that man. He goes right through.”
— reviews by Marvin Olasky