Context Matters as the Conversation Continues

As was evident from the first essay, the topic of religious liberty today brings to mind a number of challenges. It will take time to work through conflicts that arise as we navigate new waters of legal and cultural changes with regard to LGBT rights. It will also take hard work to get to a mutual understanding of what is at stake for all, including in contexts far beyond wedding vendors, as Robin Fretwell Wilson highlights in her last post.  

By introducing the topic of government funding of religious institutions, Wilson moves the conversation to a new level of complexity.  How our laws protect religious liberty depends on the context. The Trinity Lutheran Church case is different from cases about school vouchers or social services.

Religious people and religiously affiliated institutions have long been involved in government programs through various partnerships, carefully designed in ways to avoid subsidizing religion. Even the attorney for Trinity Lutheran Church conceded to Justice Elena Kagan that states are entitled to refuse to fund religious activities. The question is whether a state can take preventative measures to avoid unconstitutionally paying for religious activity by prohibiting the use of tax dollars for capital improvements to church property. Churches after all are unique religious institutions formed for the purpose of religious expression and exercise. They may or may not involve ministries that provide secular social services (food pantry, homeless outreach, medical clinic, education, etc.) performed by various religiously affiliated institutions.

Regardless of whether Trinity Lutheran Church proves to be “an easy case,” as Wilson describes it, state constitutions are part of the legal tradition that protects religious freedom. Justice Sonia Sotomayor noted during oral arguments that “We seem to be confusing money with religious practice.” The State of Missouri is not deciding how churches use their property. It is not forcing Trinity Lutheran Church to have a playground, prohibiting it from having one, or dictating how the church should use it; it is simply refusing to pay for its resurfacing. An important aspect of the American tradition of religious liberty recognizes that government often protects religion by staying out of it.

Despite our diverse perspectives on specific issues, it seems we can agree that religious liberty is a fundamental constitutional value, and as David Gans explains, a founding principle, worthy of a deeper conversation. Our religious liberty tradition of “free exercise” and “no establishment” has served our country well and stood the test of time through careful tending. We may not agree on all of the outcomes of specific disputes, but we should recognize the value of important safeguards that have protected against government-sponsored religion and have protected our religious institutions.

Also from this issue

Lead Essay

  • Religious Liberty and the Fate of Civil Society by Ilya Shapiro

    Ilya Shapiro reviews recent U.S. Supreme Court cases on religious liberty and examines how each of them is the product of government intrusion into civil society - into areas of life that, while public, are nongovernmental. These include organized religions, businesses, and private civic and social groups. These institutions of civil society do much good work, and Americans of all political persuasions are increasingly aware that they are under attack. We are brought into needless conflict with one another, Shapiro writes, whenever the government decrees how these institutions must conduct themselves with regard to matters of conscience.

Response Essays

  • Religious Liberty in the Age of Trump by David H. Gans

    David H. Gans draws our attention away from the Free Exercise Clause and toward the Establishment Clause. A ban on travel from overwhelmingly Muslim countries - and not on travel from others - constitutes an official disfavor, he argues, particularly in light of the clear statements that have been made about the ban’s intent. The greatest threat to religious liberty today is the threat to the religious liberty of Muslims. Meanwhile, he argues, religious exemptions to general laws are often of doubtful legality and tend to threaten the liberties of those whom they do not single out for protection.

  • Partisanship and Exaggeration Threaten Religious Liberty in America by K. Hollyn Hollman

    Religious liberty is protected in two ways in our Constitution: First, the government may not establish any religion, nor may it officially disfavor any; and second, individuals’ free exercise is also protected. K. Hollyn Hollman urges us to reject too-simple narratives about religious liberty and government interference, though, because the politicization of religious liberty is itself a danger to religious liberty. Political point-scoring makes workable compromises harder to find.

  • Time for One America, Not Two by Robin Fretwell Wilson

    Robin Fretwell Wilson issues a call for compromise in today’s battles over the Establishment Clause. There can be no expectation that either the religiously observant, or those to whom they object, will disappear from our society anytime soon. And yet life must go on. Compromise is not such an unreasonable thing to expect, she argues, because all have a vested interest in finding ways to live together despite their differences.

The Conversation