‘Zero-sum’ view of religious freedom is a bad take

Written by William C. Duncan

March 26, 2021

One of the least attractive characteristics of human nature is our penchant to be dissatisfied or even unhappy when a perceived rival seems to experience good fortune. Perhaps this is the genesis of the much-decried prevalence of zero-sum thinking in politics and activism.

In 1993, Congress passed, by near unanimous votes, the Religious Freedom Restoration Act, which enshrined in federal law a principle that had recently been abandoned by the U.S. Supreme Court in its approach to interpreting the First Amendment – that governmental burdens on religious exercise could only be allowed when required by an overwhelming public interest like the protection of life or safety.

The bill was sponsored in the House by then-Rep. Chuck Schumer with 170 co-sponsors and in the Senate by Sen. Ted Kennedy with 60 co-sponsors.

The Senate Judiciary Committee hearing on the bill began with testimony from a practitioner of an animist religion. This testimony was followed by witnesses representing The Church of Jesus Christ of Latter-day Saints, the Baptist Joint Committee, the American Jewish Congress, the U.S. Catholic Conference, and others.

One of these witnesses noted the broad support for the bill.

The support for this piece of legislation is, as Senator Kennedy has characterized it, extraordinary. Never have I seen a coalition quite like the Coalition for the Free Exercise of Religion—People for the American Way, on the one hand; the Traditional Values Co­alition and Concerned Women for America, on the other; the American Civil Liberties Union, the Southern Baptist Convention, Agudath Israel, and the American Muslim Council; 54 organiza­tions, Mr. Chairman, 54 organizations willing to set aside their deep political and ideological differences in order to unite in a common vision for the common good—religious liberty for all Americans.

The second panel at the hearing included Nadine Strossen, president of the American Civil Liberties Union, who characterized the bill as “the civil rights act of first amendment law.” In the House, she testified that the ACLU “strongly supports” RFRA “because it restores religious liberty to its rightful place as a preferred value and a fundamental right within the American constitutional system.”

Twenty-three years later, in 2015, the deputy legal director of the ACLU announced the organization had reversed its position and now opposed RFRA. She argued: “Religious liberty doesn’t mean the right to discriminate or to impose one’s views on others.” Interestingly, in her Senate testimony expressing the ACLU’s support for the bill, Strossen had recognized that RFRA would “bolster the rights of those who are conscientiously opposed to abor­tion,” suggesting that the ACLU was then comfortable with the possibility that the law would protect the rights of those with whom her organization disagreed. That was no longer the case.

These new messages – (1) that religious freedom was just code for discrimination and (2) that religious freedom should only be protected when invoked to protect religious practices (like religious clothing) that activist groups and politicians do not object to – have gained remarkable acceptance in the last six years. In fact, the Equality Act now being considered by the U.S. Senate after House passage in February would prohibit people of faith and religious organizations from claiming the protection of RFRA in the context of accusations of discrimination.

As Josh Wester of the Ethics & Religious Liberty Commission of the Southern Baptist Convention noted recently: “About five years ago, critics of religious protections rebranded religious liberty as a ‘license to discriminate.’ It was an effective PR move and it’s paid a lot of dividends.”

A recent poll from the Public Religion Research Institute quantifies that claim. It found: “More than four in ten Americans (44%) agree with the statement ‘In the U.S. today, I feel like my rights are being threatened by the claims others are making about their religious liberty.’”

This finding raises the question of how proponents of religious freedom should respond to the growing belief that if people of faith and religious groups are allowed to act on their beliefs, others with different beliefs are somehow worse off.

Wester suggests that “[r]eligious freedom advocates should also make it clear that protections for religious organizations benefit more than just people of faith” and expressed a hope that more attention could be paid to “the tremendous amount of good work that religious organizations are doing.”

Sutherland Institute has been doing this over the last year or so. So far in 2021, it has noted that the efforts of people of faith to act on their beliefs has expanded the circumference of liberty for others in areas such as free speech, protection of minorities, and conscientious objection. It has also described the social benefits of religious practices in education, pandemic relief, and gender equality.

We can’t limit our acceptance of others’ rights to situations where we feel they benefit us and also say that we support equality. Equality means respecting and supporting the rights of everyone, even when it might seem that doing so doesn’t serve our immediate, short-term interests.

Understanding that there are real benefits to religious freedom for everyone can provoke a reexamination of whether we would really be better off if we were to completely abandon broad support for a policy of accommodating religious practices along with other choices central to individual and community identity and purpose. That support was strong a quarter of a century ago, and there’s no reason it can’t be renewed.

What is required is to reject the impulse to find unhappiness in the progress of a rival. If we can recognize that an abundance of rights for others means an abundance of rights for ourselves, we will be on the path to genuine equality.

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