Can’t We All Just Get Along?

If you read the first two responses to my essay, you would think that I simply missed the boat, or at least the second half of the religious liberty question, by not discussing the Establishment Clause. And indeed, the word “establishment” doesn’t appear in my contribution, in large part because modern America simply doesn’t face a threat of “establishing” state religions of the kind that caused the Framers to write this provision into the First Amendment (unless you count the post-modern “religions” of environmentalism and identitarianism, but that’s a subject for another symposium).

I’m sorry, but the fate of the Republic doesn’t turn on the issue of what kind of Ten Commandments monument you can put up and where. (For the record, an old monument that’s outside is okay, but a newer display that’s inside a government building is not.) Nor am I much interested in debating whether, given that public funds can buy maps for parochial schools but not books, such funds can buy atlases. Or what kind of after-hours student-organized prayer at public schools constitutes state endorsement of religion. This may be my agnosticism showing, or perhaps my philosophical impatience, but all that’s small beer.

Moreover, I actually do touch on public funding of religious organizations in the way that the Trinity Lutheran case raises the issue—in the context of eligibility for generally available state programs. While the specific facts there concern subsidies for rubber playground surfaces, the issue most frequently arises in the context of school choice, and the way that many state statutes that mandate “no aid” to religion are used not just to prevent tax-supported churches—with which I have no quibble—but to hobble parents’ abilities to seek educational opportunities for their children. (These Blaine Amendments spread in the late 19th century not to further separate church and state, but to harm minority sects, especially Catholics.) I’d be happy to discuss that sort of thing further, but I sense that’s not where my interlocutors were going.

Instead, David Gans raises “President Donald Trump’s crusade against Muslims,” which is a lackadaisical crusade indeed given that its only manifestation is a regulation of entry into the country by people from six majority-Muslim countries. This may be good or bad policy—it’s unclear whether vetting procedures in the targeted countries represent the biggest weakness in our border defenses, and don’t (uncovered) Pakistan and Saudi Arabia produce more terrorists?—but the challenges to the “travel ban” will rise or fall on whether Congress granted the president authority to make nationality-based restrictions under the immigration laws in the name of national security. Even ACLU lawyers concede that the executive order would’ve been fine if any other president had issued it. This is not a burning constitutional issue—let alone one concerning the Establishment Clause. Candidate Trump may have said many things, but his administration hasn’t done a single thing that hurts the religious liberty of Muslims in America.

K. Hollyn Hollman makes a more interesting point, that “[r]eligious freedom is not just another policy issue that divides us along party lines” and indeed that “one of the biggest threats to our religious liberty is politicization.” I couldn’t agree more with that, or at least with the idea that religious liberty shouldn’t be a partisan or political issue. And yet it has so become in recent years, as have other matters of previously uncontroversial concern, ranging from support of the only democracy in the Middle East to biotechnological progress in agriculture. Sigh.

And so we get to Robin Fretwell Wilson’s hopeful missive and the suggestion that “solutions come from people of goodwill rolling up their sleeves and doing the hard work of crafting an approach that gives each of us the freedom to live and function in a society where others do not share our values.” That’s certainly true, but I’m not sure that compromise is achievable when one side insists that every last butcher, baker, and candlestick-maker kowtow to prevailing ideological diktats. Social norms and basic manners ought to resolve most of these conflicts—which facilities did transgender people use before either SOGI laws or “bathroom bills”?—but alas our litigious age forces legislation into every nook and cranny of interpersonal relations, eradicating the “play in the joints” of our public treatment of religion.

Religion shouldn’t be a trump card in our debates on culture or public policy, but the solution to the problem of religious special treatment is not, as critics of religious businesses argue, for government to deny exemptions to all such that all are equally coerced. Instead, the approach consistent with the American principle that the state exists to secure freedom is for government to recognize the right of all individuals to act according to their consciences.

We should accept that in a large, pluralistic society, we’re simply going to have disagreements about many important values. But there’s no need to force someone to do something, to bend to your will, unless there’s literally no other way of achieving a truly essential goal.

Live and let live. Can’t we all just get along?

Also from this issue

Lead Essay

  • 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

  • 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.

  • 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.

  • 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.