People of faith are winning in court. Victories have been piling up in state courts, federal district and appeals courts and even the U.S. Supreme Court: Masterpiece Cakeshop. The Bladensburg World War I Veterans Memorial. Brush & Nib Studio. Wedding videographers Carl and Angel Larsen. Downtown Hope Center in Anchorage, Alaska. Faith-based adoption agencies in Michigan. A pro-life student group at Cal State-San Marcos. A Christian student group at the University of Iowa.
Impressive. But don’t celebrate too much just yet. As encouraging as the victories have been, they do not mean that religious liberty is now assured. Decision recently spoke with E. Gregory Wallace, professor of law at Campbell University School of Law in Raleigh, North Carolina, about the state of religious liberty in the United States in light of these recent cases. Wallace and others say significant threats remain—some of them so foundational that lasting victory might seem impossible without a great move of God.
First, while several of the recent wins have involved people who wish to conduct their businesses in accordance with their faith, the legal arguments that prevailed in court were not necessarily religious liberty arguments.
In the Masterpiece Cakeshop case, the Colorado Human Rights Commission had sought to punish baker Jack Phillips after he declined, because of his Christian faith, to create a custom cake for a same-sex wedding. Wallace pointed out that the Supreme Court, in its decision, sidestepped the issue of religious liberty and took an easier route, focusing on the fact that the government showed clear hostility toward Phillips’ sincere religious beliefs.
“Essentially,” Wallace told Decision, “all anyone has to do in the future to get around the Masterpiece Cakeshop decision is to make sure that the record doesn’t reflect any religious animus. And I think you see that in Barronelle Stutzman’s case in Washington. So, I don’t think that was a huge victory for the religious liberty side. It certainly was a victory, but it wasn’t a big one.”
Other recent cases, such as Brush & Nib Studio in Arizona, the Larsens in Minnesota and student groups in California and Iowa, again saw victories for people of faith. But those were decided more on the basis of free speech principles than on religious liberty principles.
“The Supreme Court has said that the government cannot compel you to speak messages you don’t want to speak,” Wallace said. “Unfortunately, the arguments for substantive protections of religion as religion are still not successful.”
Part of the reason, Wallace said, is that American society for the most part no longer values religious faith and practice as it did when the Constitution was written. The framers based their arguments for freedom of religion on the idea that God exists and that an individual’s duty to Him was prior to, and superior to, the claims of the state.
Today, Wallace said, “Modern religious freedom jurisprudence reflects a growing indifference, incomprehension, and one even could say contempt, toward religion. It’s hard to take religious freedom seriously when you don’t take religion seriously.”
Albert Mohler, president of The Southern Baptist Theological Seminary in Louisville, Kentucky, warned about this shift in a recent article at AlbertMohler.com: “The culture that once honored religious liberty and respected it as a bedrock freedom for civil society—that culture is no more,” Mohler wrote. “Religious liberty now attracts the glare of the cultural left who see religious liberty as an obstacle in the path of their social transformation.”
Part of the solution, Wallace said, is to have legislators and judges who truly understand why the framers of the Constitution included religious freedom in the first place. It’s an uphill battle, as law school faculties are dominated by those who have little or no interest in religion and see it as nothing more than individual fancies or tastes, no more deserving of legal protection than, say, a person’s decision to play a round of golf on Sunday morning.
But in order to have legislators and judges who understand the importance of religious freedom, people of faith must be involved. As Franklin Graham has repeatedly said, Christians need to pray for those in leadership, vote for those who will uphold Biblical values and be willing to serve in public office if God so leads.
So, discussions about religious freedom must not take place in a vacuum. Mohler points out that religious liberty debates today must be seen against the backdrop of the 2020 presidential election. He recalls the hostile, intrusive administrative state under President Barack Obama, in which unelected bureaucrats tried to force Christian schools, organizations and Christian-owned businesses to violate their sincerely held beliefs.
Then Mohler turns his attention to those who are running now.
“The [Democratic] candidates need to be asked if they, as president, would use executive authority through federal departments to force a secular orthodoxy on religious groups, organizations and businesses,” Mohler wrote. “The candidates need to be asked if they will protect the rights of Christian colleges to educate their students and hire their faculty in accordance with the tenets of faith, without being threatened by the state.
“I dare someone to ask the Democratic candidates those questions. All the evidence surfacing in this Democratic Primary campaign indicates that none of the major candidates would do anything to upset the new sexual orthodoxy. Furthermore, there is every reason to believe that if one of these candidates were elected, the administrative state would reengage and expand its campaign to dismantle religious liberty, with even greater hostility and ferocity.”
Going forward, the key threat, as Wallace sees it, will come from those who in the name of “equality” want to advance sexual autonomy at all costs.
There is some good news regarding the Supreme Court, Wallace said—specifically the court’s understanding of the clause in the First Amendment that prohibits the government’s “establishment” of religion. Back in the 1970s and 1980s, the court had justices who believed this clause meant that absolutely no religion is allowed within the governmental sphere—that the government must be entirely secular.
That has changed. “All of the justices agree now that there is room for religious expression within the governmental sphere,” Wallace said. “They don’t all agree on what the specific rules should be for that, but there seems to be nobody on the Supreme Court who thinks that the governmental sphere should be entirely secular.”
Speaking of the Supreme Court, remember that it is the president who nominates those justices. There’s that pesky 2020 election backdrop again.
Above: Joanna Duka, left, and Breanna Koski, right, owners of Brush & Nib Studio, recently won their case at the Arizona Supreme Court.
Photo: Alliance Defending Freedom