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Are Supreme Court rulings the best way to advance religious freedom rights?

Written by Derek Monson

June 29, 2022

The end of another Supreme Court term brings with it new court rulings impacting religious freedom – applying the Free Exercise and Establishment clauses of the First Amendment to illuminate new contours of constitutional protections regarding our core beliefs and expressions of those beliefs. It also highlights the complete congressional inaction on the issue of religious freedom over the last three decades – which should lead us to ask: Is this the best way to advance religious freedom and other basic rights?

American history says no, it is not. Let me recount a brief story from our history to illustrate.

Years ago, a group of people chosen to represent America convened to make some important legislative decisions. They came from many different places across the country, held competing ideologies, prioritized philosophical and political principles differently, and clashed in their values. They often disagreed passionately and candidly. They wrestled through divisive issues and polarizing controversies and fought tooth and nail over who would wield political power. Sound familiar?

These representatives also managed, despite all these hurdles to agreement and action, to craft practical consensus through principled compromise. This accomplishment allowed the nation to progress in its march toward a more perfect union. Their solutions were often messy, complex, and in some instances even morally reprehensible. But they allowed America to progress beyond fundamental disagreement – instead of collapsing in the controversy of irreconcilable conflict – and revisit the substandard decisions in the future with the hope that genuine solutions could be found.

We commonly refer to these representatives as our nation’s founders and the product of their compromise as the United States Constitution.

Told this way, this story highlights two basic facts of American civic and political life: (1) Our system of government, individual rights and civic community is designed to sustainably progress only through consensus-building legislative negotiation and principled compromise, and (2) our nation has, from its birth, been embroiled in deep moral disagreements, polarizing ideological confrontations, and battles for political power.

American progress comes only through negotiation and compromise

In a nation as geographically, ethnically, racially and ideologically diverse as the United States, only consensus-driven legislative compromise allows a broad number of people, interest groups and political power players to find their moral passions fulfilled and personal interests served in the laws that get enacted. To put it differently, this is the only way for broad groups of people with significant differences and divisions to unify and claim personal victory in advancing the kind of religious liberty (or any other basic right) that serves the common good, and then move on to new issues.

The legal system, on the other hand, is by design adversarial. It is intended to force opposing parties to make the strongest case possible for their position – their interpretation of the Constitution, application of the law, or definition of justice when a law is violated – with the outcome that one side is victorious while the other is not. There is little room for nuance of negotiation and compromise that would allow all sides to advance their interests and find victory in the outcome. When it becomes the primary forum for resolving policy debates, that kind of system encourages irreconcilable conflicts (i.e., culture wars) that lead to never-ending battles seeking the illusion of the final victory that once and for all defeats the opposition.

America has always had fundamental disagreements

Deep moral disagreements, polarizing ideological confrontations and battles for political power – like we constantly see today in our politics – are nothing new in America. They are not unique to the present, and certainly not unique to debate over religious freedom. In many ways, the disagreements, confrontations and battles of early America were more serious and challenging than our own debates about religious freedom (e.g., the debate over slavery). But reaching consensus through legislative negotiation and compromise was not beyond the capacity of the Founders, and it’s not beyond our capacity either.

The primary proof that legislative negotiation and compromise are possible on religious freedom is that they are currently happening in state legislatures across America. Each state’s solutions bend toward their particularly political leanings. But in areas ranging from employment and housing to healthcare and education, states are finding legislative resolutions to controversial debates over how far religious freedom extends and how it balances with competing basic rights.

When legislative negotiation breaks down

So what happens when our system stops producing consensus and compromise through legislative negotiation? Simply put, our system of government and of peaceful civic life breaks down. We get told to view political opposition as a sign of moral depravity or intellectual ignorance – in other words, we become polarized. Depriving the opposition of power becomes even more important than advancing the ideas and values that we claim to cherish. As a result, those ideas and values fail to progress at the national level because that is designed to occur only through negotiation and compromise.

Over the last several decades, Congress has illustrated the outcome of this approach in depressing detail: policy gridlock, toxic politics, and the eventual breakdown of political, civic and basic moral norms in the name of ultimate political and policy victory (and personal aggrandizement). Such dysfunction serves the interest of only the smallest sliver of the political and ideological elite – those who raise money and accumulate influence by ensuring compromise never happens.

Such broken government is on a path toward becoming not just useless to the vast majority of Americans but being a genuine obstacle to their personal hopes and community aspirations. When a democratic republic loses its capacity to govern well on behalf of citizens in this way, it can lead those citizens, reasonably, to consider other forms of governance with a terrible track record when it comes to basic rights, including religious freedom: authoritarianism, socialism, etc.

Conclusion

In contrast to this grim portrait of civic and social decline, there remains great hope in America for a renewal of religious freedom and general civic health. Through legislative negotiation and compromise – likely beginning at the level of state and local legislatures and moving up from there – America can restore functionality to its federal democratic republic.

When it comes to religious freedom, that includes seeking public policy reforms that generalize accommodations for the particular religious practices and religious expression of faith traditions that remain relatively unknown to many Americans – Judaism, Sikhism, Islam, Hinduism, etc. By crafting general policy reforms that accommodate particular religious practices of minority faiths, we advance religious freedom and freedom of conscience for everyone – including those who don’t believe in God.

By making the First Amendment’s protection of religious freedom effectual in local, state and federal laws in this way – balancing those protections against other basic rights – we will advance religious freedom in new and sustainable ways that are simply not possible through the courts. As we recognize the advancement of First Amendment freedoms found in new Supreme Court rulings, let’s also remember that the First Amendment – like the Constitution itself – would not exist except for the legislative negotiation and compromise that made it happen.

Turning away from that reality in how we seek to advance religious freedom is to accept that the core tenets of religious freedom will forever be at risk: just one Supreme Court decision away from becoming a relic of the past.

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