By Derek Monson

The various approaches to creating additional legal protections for religious liberty is a particularly relevant issue this week, given the passage of Indiana’s new religious freedom law, the subsequent protests of that law by the left, and Utah’s own unique approach to the issue. But before getting there, it’s important to understand why religious freedom needs such protections at all.

For instance, many on the left have taken to opposing religious liberty legislation by arguing that we have the First Amendment to protect religious liberty. Now that may sound good on the surface, but it’s kind of like arguing that we don’t really need anti-discrimination laws because the 14th Amendment guarantees that everyone has “equal protection of the law.” I think most reasonable people would agree with Abraham Lincoln’s point to his opponent for the U.S. Senate when he asked him “Do you support the Constitution if, knowing or believing there is a right established under it which needs specific legislation, you withhold that legislation?”

The repeated instances in recent years of individuals being fired or retaliated against for expressing religious beliefs outside the workplace or in political causes, and even being taken to court by their own government for trying to reasonably apply their moral conscience in their lives illustrates that religious freedom needs specific legislation. For anyone who would claim to support the freedoms guaranteed by the Constitution, the facts would seem to suggest that it’s both a matter of integrity and logical consistency to see a need for legislation protecting religious liberty.

One approach to doing so is to create blanket protections for religious belief and expression. This is the approach of Indiana’s new religious liberty protection law, which is patterned after 31 similar state and federal laws that exist due to actions taken either by legislatures or state courts. These laws exist in a diverse range of states – from red states like Texas, Arizona and Alabama to purple states like Virginia, Pennsylvania and Ohio, and even to blue states like Washington, Massachusetts and Illinois.

Another approach can be called the context-specific approach, which is reflected in Utah’s recently passed laws. In this approach, the law establishes religious liberty protections based on specific contexts that people and organizations experience. For example, Utah’s new laws protect some of the conscience rights of individuals as employees, employers, public officials or religious officials.

The goal of either approach is the same: to protect religious freedom and give people of faith the space to live according to their moral conscience – or in more progressive terms, to protect a religious worshiper’s right to be who they are in the various aspects of their lives. But each approach has its upsides and its downsides. The advantages of the blanket protection approach are its simplicity and the breadth of religious liberty protection. The disadvantage is its public perception problem, caused largely by a political left that has become expert at emotional manipulation and exploitation.

On the other hand, the advantage of Utah’s approach is its potential to establish a workable order and balance between the sometimes incompatible values driving sexual politics and religious liberty. Its disadvantages are its need for a new law for every new context, and its potential to be exploited to undermine a sound cultural understanding of the importance of religion and morality to a free society.

For advocates of religious liberty, the presence of two approaches can present some difficulties. After all, the blanket-protection approach is a known quantity, while Utah’s approach has yet to be fully fleshed out in contexts such as the exchange of goods and services in the marketplace. But this is a question of strategy and approach, not of how principled you are as a supporter of the American Constitution or as a conservative. In other words, it’s a matter of pursuing a strategy that creates substantive and sustainable victories for religious freedom. And in the light of Indiana’s new religious liberty law, this will be an increasingly important distinction.

For Sutherland Institute, I’m Derek Monson, and thanks for listening.

This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

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