Religious Liberty in a Polarized Age

By Thomas C. Berg

Christianity Today Book Award of Merit in Politics and Public Life (2024)

How to heal America’s deep divisions by preserving religious liberty for all  
   
As our political and social landscapes polarize along party lines, religious liberty faces threats from both sides. From antidiscrimination commissions targeting conservative Christians to travel bans punishing Muslims, recent litigation has revealed the selective approach both left and right take when it comes to freedom of religion. But what if religious liberty can help cure our political division?   
  
Drawing on constitutional law, history, and sociology, Thomas C. Berg shows us how reaffirming religious freedom cultivates the good of individuals and society. After explaining the features of polarization and the societal benefits of diverse religious practices, Berg offers practical counsel on balancing religious freedom against other essential values.   
  
Protecting Americans’ ability to live according to their beliefs undergirds a healthy, pluralistic society—and this protection must extend to everyone, not just political allies. Lay readers and legal scholars who are weary of partisan quarreling will find Berg’s case timely and compelling.

• Language: English
• Publisher: Eerdmans
• Release date: Jul 11, 2023
• ISBN: 9781467463966

Thomas C. Berg

Thomas C. Berg is the James L. Oberstar Professor of Law and Public Policy at the University of St. Thomas School of Law, Minnesota, where he teaches religious liberty, constitutional law, and intellectual property. He also supervises students in the religious liberty appellate clinic, which files briefs in cases in the US Supreme Court and appellate courts. In his advocacy, he has represented Christians, Muslims, Jews, Native Americans, Jehovah's Witnesses, Hare Krishnas, atheists, and other groups. His scholarship and advocacy have been cited in the Supreme Court and several federal courts of appeals.

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Preface

This book reflects aspects of my thinking about religious freedom, its defense, and its promotion, developed over thirty years of teaching, scholarship, and advocacy—but especially over the last dozen years, during which debate on the subject has become increasingly polarized. I’ve presented some of these thoughts in academic books and law journals (see below). This book adds new thoughts, examines all the issues in the light of the nation’s overall problem of polarization, and aims at a broader audience of informed and interested, but not necessarily academic, readers.

The book is current through summer 2022, except for a few short references to later developments. As I write this preface in early December 2022, there are hopes for reduction in the toxicity of political culture. Voters in the midterm congressional races rejected election-denying candidates. Even more pertinent for this book, Congress seemed poised to pass a bill combining (in a limited way) recognition of same-sex marriages with protections for religious liberty. The bill, the Respect for Marriage Act, overcame a Senate filibuster by drawing twelve Republican votes. It did so precisely because it included significant religious-liberty provisions that said two things: (1) The bill’s recognition of same-sex marriage should not be construed to undercut any benefit, status, or right of others, which includes the tax-exempt status of religious organizations adhering to man-woman marriage.¹ (2) Diverse beliefs about gender in marriage (including, necessarily, the traditional belief in man-woman marriage) rest on decent and honorable premises that are due proper respect, which in context distinguishes them from—and undercuts equating them with—beliefs against interracial marriage.² That finding matters because practices based on racist beliefs receive no accommodation or protection in American law, and—as the book frequently notes—traditional believers are understandably fearful when their beliefs and practices about marriage and sexuality are analogized to racial bigotry. The Respect for Marriage Act is an encouraging, if limited, sign that we can protect both LGBTQ people’s rights and traditionalists’ religious liberty. Indeed, as this book argues, in our divided society we must protect both if we hope to protect either.³

So our national polarization can relax in marginal terms, just as it has intensified in recent years. Nevertheless, the political, social, and cultural pressures that drive it will persist.⁴ So for the foreseeable future, strong polarization will likely persist, and the issues discussed in this book will remain relevant.

The book reflects the influence of two intellectual and personal mentors and modern leaders in the study and defense of religious liberty. Douglas Laycock and Michael McConnell have helped shaped my thinking about religious liberty since before I entered the field. I’ve been privileged to collaborate with them on scholarship, advocacy, and (in Michael’s instance) a law casebook, Religion and the Constitution (Aspen Publishing). Arguments from my recent articles and briefs with Doug are reflected in this book; I thank him for his generosity in allowing me to make use of them. I thank both Michael and Doug for the ideas and the personal models they’ve provided; they are of course not responsible for the uses I’ve made of their ideas.

John Witte, too, is a giant in the study of religious liberty and more generally of the historical and current interactions between law and religion. I thank him for supporting this book and its inclusion in the Emory Universtiy Studies in Law and Religion series published by Eerdmans. John has been generous over the years with encouragement, conference and project invitations, and other forms of support, to me as to countless others. My thanks also go to the Eerdmans staff involved in the book’s production: project editor Laurel Draper, copyeditor Tom Raabe, and all the others who contributed.

I thank the many colleagues who have commented on my previous articles and chapters, both drafts and published versions, the thoughts of which are reflected in this book. I also thank the organizers, audiences, and other participants at events where I’ve delivered portions of the book itself. Those include public lectures at St. Olaf College, at St. Mary’s University Law School (the Lin Lecture), at the University of Wisconsin-Marathon (the Veninga Lecture), and at Wheaton College (the Kamm Lecture). I’ve also delivered portions of the manuscript in academic colloquia at Northwestern University Law School (thanks to Andrew Koppelman for the invitation) and at my own institution, the University of St. Thomas School of Law (thanks to Michael Paulsen), and at various conferences. Finally, I’ve benefited from participating, and presenting parts of the book, in interdisciplinary projects: the Cultural Challenges to Liberalism Project of the Institute for Humane Studies (thanks to Andrew Lewis and Asma Uddin for including me) and the Freedom of Religious Institutions in Society Project of the Religious Freedom Institute (thanks to Timothy Shah).

I also thank those who read and gave comments on draft chapters: Angela Carmella, Richard Hoskins, Andrew Koppelman, Robin Lovin, Christopher Lund, Randall Newman, and my St. Thomas colleagues Ben Carpenter, Teresa Collett, Joel Nichols, Julie Oseid, Michael Paulsen, Elizabeth Schiltz, Greg Sisk, and Rob Vischer (many of them religious-liberty experts themselves). Finally, I thank St. Thomas law students Shawna Kosel, Annika Johnson, and T. J. Bowman, who assisted with research and citations for the book manuscript.

Above all, I thank Maureen Kane Berg, who read and improved every chapter with substantive and stylistic suggestions. On top of that, she engaged in countless conversations about the sometimes-discouraging subject of polarization—always offering encouragement that Americans’ best traditions, the protections of civil liberties for all, will help us address our divisions today as in the past. I can only repeat here what I wrote in the dedication to another book: Maureen is a careful thinker, a superb lawyer, a devoted mother, and a loving and supportive life partner.

Portions of the following chapters draw upon and rework arguments and references from other writings of mine.

Chapter 2: from my chapter ‘Christian Bigots’ and ‘Muslim Terrorists’: Religious Liberty in a Polarized Age,’ in Law, Religion, and Freedom: Conceptualizing a Common Right, ed. W. Cole Durham Jr., Javier Martínez-Torrón, and Donlu Thayer (New York: Routledge, 2021), 164–87.

Chapter 3: from Progressive Arguments for Religious Organizational Freedom: Reflection on the HHS Mandate, Journal of Contemporary Legal Issues 21 (2013): 279; and Thomas C. Berg and Douglas Laycock, Protecting Same-Sex Marriage and Religious Liberty, in Religion and Equality: Law in Conflict, ed. W. Cole Durham Jr. and Donlu Thayer (London: Routledge, 2016), 167–82.

Chapter 4, in its final section: from ‘Christian Bigots’ and ‘Muslim Terrorists,’ above.

Chapter 5: from Freedom to Serve: Religious Organizational Freedom, LGBTQ Rights, and the Common Good, in Religious Freedom, LGBT Rights, and the Prospects for Common Ground, ed. William N. Eskridge Jr. and Robin Fretwell Wilson (Cambridge: Cambridge University Press, 2018), 307–25; and Partly Acculturated Religious Activity: A Case for Accommodating Religious Nonprofits, Notre Dame Law Review 91 (2016): 1341.

Chapter 6: from Religious Accommodation and the Welfare State, Harvard Journal of Law and Gender 38 (2015): 103; Religious Exemptions and Third-Party Harms, Federalist Society Review 17, no. 3 (2016): 50; and Thomas C. Berg and Douglas Laycock, "Protecting Free Exercise under Smith and after Smith," Cato Supreme Court Review 2020–21: 33.

Chapter 7: from ‘Christian Bigots’ and ‘Muslim Terrorists,’ above.

Chapter 8: from Berg and Laycock, Protecting Same-Sex Marriage and Religious Liberty, above.

1. H.R. 8404, 117th Cong., 2d Sess., section 7(a), https://tinyurl.com/papdy9rm.

2. Id., section 2(2) (congressional findings).

3. See chap. 8; on the Respect for Marriage Act in particular, see p. 299.

4. See chap. 1 for the exploration of those pressures.

Introduction

In June 2018, the United States Supreme Court capped off its term with, among other things, two blockbuster cases involving the First Amendment’s provisions on religion. In Trump v. Hawaii,¹ the Court considered President Trump’s executive order banning entry to the United States of persons from seven nations, most of them with overwhelmingly Muslim populations. The order was a toned-down version of a promise Trump made on the 2016 campaign trail and again after his inauguration. Asserting that global polls showed that Islam hates us, Trump had called for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.² Once he took office, federal agencies drafting the actual order changed the focus from all Muslim individuals to a few Muslim-dominated nations; nevertheless, lower courts still struck down the first two versions of the ban on the ground that it stemmed from hostility to Islam. A third iteration, however, added some non-Muslim-majority nations and explained more fully the choice of nations subject to the ban. By a 5-4 vote, the Supreme Court upheld that version. It noted Trump’s statements of animus toward Islam, but it refused to use them to invalidate the ultimate order, since it was facially neutral toward religion.³

Three weeks before it upheld the travel ban, the Court decided Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission.⁴ Jack Phillips, a conservative Christian who operated a business designing custom cakes for various occasions, declined on religious grounds to create a cake for the wedding of two men, Charlie Craig and Dave Mullins. He believed that creating the cake would constitute a personal endorsement and participation in [their] ceremony and relationship.⁵ The state commission found that Phillips had committed sexual-orientation discrimination and imposed penalties on him, and an appeals court affirmed. But here the US Supreme Court reversed and invalidated the commission’s order, finding that commissioners had adjudicated the case with hostility toward Phillips’s religious beliefs. Two commissioners had made hostile statements; most aggressively, one had compared Phillips’s actions to slavery and the Holocaust, asserting that religion had been used to justify both evils, and added that it is one of the most despicable pieces of rhetoric that people can use[:] to use their religion to hurt others.⁶ In addition, the commission had previously allowed other bakers to refuse to create cakes with religious statements condemning same-sex relationships. In reaching those divergent results, the Supreme Court said, the commission had employed inconsistent reasoning, again indicating hostility toward Phillips.⁷

Both Masterpiece Cakeshop and Trump involved government actions imposing burdens directly or disproportionately on religious adherents. The Colorado order forced Jack Phillips either to give up much of his business or to help celebrate a wedding that violated his religious beliefs about marriage. The travel ban kept many thousands of innocent people, overwhelmingly Muslim, from visiting family members or pursuing educational or exchange opportunities, and it kept mosques and other Muslim communities from welcoming newcomers or visitors from overseas. Both official actions were accompanied by statements of official hostility toward particular religions or religious acts. Trump called for a ban on all Muslims because Islam hates us; the commissioners said that Phillips was using his beliefs (insincerely, it was implied) in despicable ways.

The Supreme Court upheld one order and invalidated the other, which some observers criticized (I’ll argue it should’ve invalidated both). But for now, the key fact is not how differently the Court treated the cases (whose facts are complicated). The key, rather, is how differently the cases were viewed by the American public, both by the general population and by groups specifically focused on issues of religious freedom and church-state relations.

With a couple of exceptions, no organization that opposed the travel ban with an amicus (friend of the court) brief also opposed the penalty imposed on Jack Phillips. (Or vice versa.) Only two organizations filed briefs both to support Phillips and to challenge the travel ban: the US Conference of Catholic Bishops and the libertarian Cato Institute.⁸ Multiple liberal religious and civil-liberties organizations that supported religious-freedom challenges to the travel ban opposed Phillips’s religious-freedom claim; multiple conservative organizations did the opposite.⁹ The Alliance Defending Freedom (ADF), which litigated Jack Phillips’s claims of anti-Christian hostility, opposed the lower courts’ ruling that Trump’s order unconstitutionally implemented his anti-Muslim hostility. The ADF made sure to say that the lower court’s theory could justify striking down prized orders by Democrat presidents, emphasizing that President Obama had once remarked that Americans ‘cling to guns or religion … as a way to explain their frustrations.’ It also was at pains to point out that Obama’s campaign had mocked business owners who object[ed] to paying for contraceptive coverage as his administration mandated under the Affordable Care Act.¹⁰

Among the general public, likewise, conservatives and liberals were at loggerheads on the cases. Even Trump’s initial pledge to exclude all Muslims—a policy that would unconstitutionally discriminate against an entire faith based on collective guilt—was supported by 71 percent of Republicans, as against only 34 percent of Democrats.¹¹ And in polls as of 2017, while Masterpiece Cakeshop was before the Court, 67 percent of Republicans supported the right of small wedding vendors to refuse services for same-sex weddings, versus 24 percent of Democrats.¹²

Supreme Court cases are often sharply contested. But the juxtaposition of the Trump and Masterpiece Cakeshop cases dramatizes how religious liberty, a fundamental constitutional commitment, is in a troubled state. The reason for the trouble is that religious liberty has become one of the key issues that polarize Americans into angry and fearful competing camps.

The last dozen years have seen multiple high-profile instances of laws clashing with religious tenets and practices. The Obama administration mandated in 2011 that employers cover contraception in their employees’ health insurance plans, which prompted the long-running litigation by businesses like Hobby Lobby craft stores and charities like the Little Sisters of the Poor. Jack Phillips is among a number of objectors to same-sex marriage who have clashed with LGBTQ nondiscrimination laws. The cases involve other small wedding vendors, Catholic adoption and foster-care agencies, conservative religious colleges and schools, and members of the marriage and family counseling profession. In all those cases, persons with traditional views on sexual morality face restrictions from laws reflecting progressive values.

But the positions flip as to laws affecting Muslim Americans. There, many conservative Christians have favored discriminatory restrictions on a religion—and not just through measures like the Trump travel ban. Conservatives have led campaigns to infiltrate Muslim religious communities, to block the construction or expansion of mosques in various localities, and to forbid the enforcement of Shari’a law based on wildly exaggerated fears about the imposition of illiberal forms of Islam in America.

In all these cases, divides over religious liberty have neatly traced Americans’ divides over the underlying policy issues: sexual morality, health policy, immigration, national security. If you support laws against LGBTQ discrimination, you reject allowing any meaningful exceptions from those laws to protect religious liberty. Likewise, if you support restrictions on immigration, you dismiss any religious-liberty challenges to those laws. Both the Left and the Right do it. Indeed, religious-liberty issues have come to deepen the overall divides. Each side resents not only that people on the other side hold a given policy view but that they’re willing to ride roughshod over their opponents’ rights of equality and liberty to advance that view.

The bitterness of religious-liberty disputes arises from, but also feeds into, the overall bitter polarization of our society. In 2016, between 40 and 50 percent of Americans in each party said that fellow Americans in the other party were a threat to the nation and unsuitable marriage material.¹³ By August 2021, a few months after the cataclysmic 2020 political season, those numbers had skyrocketed. In a University of Virginia poll:

Eighty percent of those who’d voted for Joe Biden, and 84 percent of those who’d voted for Donald Trump, at least somewhat agreed that elected officials from the other party presented a clear and present danger to American democracy. Fifty-one percent of Biden voters and 57 percent of Trump voters strongly agreed with those fears.

Almost as many respondents believed that individuals who strongly supported the other side posed such a clear and present danger (75 percent of Biden voters and 78 percent of Trump voters somewhat agreed; 43 and 47 percent, respectively, strongly agreed).

Similar shares of respondents were concerned that the other side’s policies would cause them or someone close to them personal loss or suffering, and believed that the other side want[s] to eliminate the influence of [progressive/traditional] values in American life and culture.

Finally, [r]oughly 4 in 10 (41%) of Biden and half (52%) of Trump voters at least somewhat agree that it’s time to split the country, favoring red/blue states seceding from the union.¹⁴

This fear and distrust on both sides, the poll concluded, has undermined faith in our representative democracy—even leading a significant number of Americans to conclude that presidents should take measures against threats without being constrained by Congress or courts.¹⁵

Each side of the divide has a narrative about the other side’s malice and arrogance. In his recent book Divided We Fall, David French remarks that today’s America shares a feature of other societies that have broken apart in violence: [B]oth sides recount a litany of moral atrocities, from actual acts of violence to online outrages and political perfidy.¹⁶ He describes those clashing narratives over many pages, but here are his summaries:

The left looks at the GOP and offers a critique that flows from the racial conflicts and racial divisiveness of the worst days in American history. From this perspective, a shrinking white Christian population, steeped in historical privilege, is lashing out as America becomes more racially and religiously diverse.

The right has a competing narrative, one rooted in faith, history, and the nature of the American founding. It begins simply. They hate us, they lie about us, and they use all the instruments of their power to deprive us of our rights and even to deprive us of our jobs and economic opportunities.¹⁷

Jonathan Rauch describes the conflict in similar terms. Religious conservatives and secular liberals both believe they are fighting for their continued existence as free people in the face of threats from the other: that only one side [can] prevail and that the conflict [can] only end in the other side’s elimination as a political force.¹⁸

We live in an atmosphere of mounting anger, resentment, and fear: almost no one denies that now. Donald Trump stoked these emotions as president and still does so. But the atmosphere preceded him, and it will continue after he passes from the scene. And religious-liberty disputes contribute to the problem.

Religious Freedom Should Calm, Not Aggravate, Polarization

For religious-freedom disputes to fuel polarization is sad, and it’s incongruous. Religious freedom (or religious liberty, an equivalent term) is meant not to aggravate, but rather to calm, conflict among deeply held views. Like other civil liberties, it sets ground rules that allow people of differing characteristics to coexist. Religious freedom in particular calms conflict by giving people of differing views protection against threats they feel to their most basic beliefs and identity. It makes room, within reason, for all persons to express and live consistently with their deepest views. We may clash on the underlying issues, from health care to immigration to sexual identity and morality. But we can all enjoy civil liberties—and support those liberties for each other.

But all these key purposes of religious liberty will fail if debate over the ground rules simply replicates the polarization over the underlying issues—or worse, aggravates the polarization.

This book’s thesis is: In our time of polarization, we must renew our commitment to religious freedom for all. That assertion has three parts, which will reappear throughout the book.

First, we should place a strong value on religious freedom, which I define as the ability of people and religious communities to live consistently with their deepest, most comprehensive beliefs and identity, unless there is a very strong reason to prevent them from doing so. We must balance that freedom with other values. But it should receive heavy weight in the balance.

Second, that strong freedom must extend equally to all faiths. We need to protect Muslims and traditionalist Christians.

These first two assertions are intertwined. Religious liberty can only fulfill its purposes if it is (1) substantial in scope and (2) evenhanded. In the words of the Virginia Declaration of Rights of 1776, an important precursor of the First Amendment: All men are equally entitled to the free exercise of religion, according to the dictates of conscience.¹⁹ Both liberty (free exercise of religion) and equality (equally entitled) are necessary.

Without a baseline guarantee of actual liberty, equality is little comfort. Equality by itself could mean equal suppression of all religions. More subtly, equality could mean simply applying generally applicable legal restrictions to religious practice the same way they apply to any other behavior—without considering how seriously they restrict religion or requiring the government to show that the restrictions are necessary. As later chapters will describe, applying laws that are facially or formally equal among religions will produce unequal results in fact. Religions whose values and practices are unfamiliar or at odds with mainstream values will face penalties, while familiar and mainstream religions will not. To ensure that all faiths have freedom that is equal in fact, we need vigorous protection that looks to the actual effect a law has on the group. In other words, only substantial freedom can produce truly equal freedom.

Conversely, freedom must be for all, or it is not really freedom—even if it protects some groups substantially. As I’ll discuss, in the wars of religion that devastated England and continental Europe in the sixteenth and seventeenth centuries, each side claimed freedom for itself while denying freedom to its opponents. In other words, each side treated religious freedom not as a principle but simply as an argument to advance its own cause. Religious freedom was simply an argument for the underlying cause.

Today, too many people have made the same mistake, if in less extreme form. Progressives sympathize with some claimants, like Muslims and same-sex couples, and argue for their freedom to believe and to live out their identity. But too many progressives give no weight to people’s freedom to live according to their traditional religious beliefs. Progressive arguments for freedom become limited primarily to the freedoms that fit with the underlying progressive vision of society. And vice versa with conservatives. They sympathize with traditional religious believers and argue for their freedom, but they resist freedoms for sexual minorities and, far too often, for religious minorities like Muslims. Their arguments operate primarily to serve the underlying conservative vision of maintaining traditional sexual norms.

The current Supreme Court is protecting religious freedom strongly, and I’ll defend most of its decisions, with some qualifications. The book aims to explain how strong religious-freedom protection, properly defined, can play a role in reducing dangerous polarization.

Finally, the commitment to religious freedom must recognize boundaries on that freedom, set by the rights of other individuals and the interests of society. If religious freedom becomes a trump on all other interests, it will inflame conflict rather than soothe it. The same will happen if we protect only religious freedom and not other important rights. Therefore, I spend substantial time, especially in chapters 6 and 8, developing principles for drawing boundaries that strongly protect religious freedom but also take adequate account of other interests. It’s a delicate task, but careful analysis can maximize our ability to serve both of those goals. In addition, I’ll argue, especially in chapter 8, that courts and legislatures should protect other important rights, like LGBTQ equality, and that they can do so while preserving strong protections for religious liberty. We must protect both rights if we hope to live peacefully together with our deep divisions.

How to Argue for Religious Freedom in a Polarized Society

My first key point, then, is that an evenhanded commitment to religious freedom can help calm fears that contribute to polarization. But a second point is just as important. Defending religious freedom effectively in a polarized society is a challenge, and the choice of arguments will likely determine that effectiveness. When polarization extends to religious-liberty questions, it makes many people deeply skeptical of specific religious-liberty claims and even of religious liberty in general. Some such people are immovable; they are deeply committed to the position that clashes with the specific religious-liberty claim. True believers in a Christian America will never make meaningful room for claims by Muslims; some activists for LGBTQ rights will never make meaningful room for claims by religious traditionalists. But persuasion must almost always aim at the movable middle—that is, to what remains of a vital center in American political culture. Here, that middle may include traditional Christians who disagree with Muslims or with LGBTQ people but who will consider supporting their basic rights. It may also include people who support LGBTQ rights but are willing to leave meaningful room for traditionalist religious organizations to act according to their beliefs.

Reaching the persuadable skeptics requires arguments with several features, some of which have already been discussed.

First, the arguments must promote strong liberty for all. Religious liberty must be, and must be perceived as, a commitment of principle, not an instrument for advancing one set of policies or another.

Second, the arguments should be of the sort that, in principle, can appeal to a reasonably wide range of persons. The book’s second section, chapters 3 through 5, presents three such arguments for strong religious freedom.

Finally, the arguments must, again, acknowledge boundaries on religious freedom that take adequate account of other interests (while still protecting religious liberty strongly). Such acknowledgment is important for the arguments’ credibility and thus their effectiveness.

Protecting civil liberties in a deeply polarized society depends heavily on reciprocity: I support protecting you because it may also support protecting me or someone with whom I sympathize. But negotiation theory tells us that people’s willingness to reciprocate requires some degree of trust, some confidence that the other side will not push its position to an extreme place. If, for example, there were reason to believe that religious conservatives would keep expanding religious-freedom claims against LGBTQ nondiscrimination laws without end, never acknowledging any limit, then LGBTQ-rights advocates might rationally oppose even more limited freedom. Unfortunately, the very nature of polarization means that trust and therefore reciprocity are in very short supply. For religious-freedom defenders, to acknowledge limits, therefore, sends an important signal that increases the credibility of claims and so may resurrect the possibility of reciprocity. And to reemphasize, we can set necessary boundaries, while still protecting religious freedom strongly, through careful analysis and distinctions.

The arguments above are not necessarily the ones that will most appeal to the Supreme Court majority in the moment. But these arguments, I believe, are most likely to produce a sustainable commitment to religious liberty over the long term.

Both Sides Can Bear Fault, Even If One Bears More

Let’s return to the clashing narratives of progressives and conservatives described above. Each of these perspectives is sufficiently complex and wide-ranging that its proponents can find multiple facts to support and confirm their view. As David French rightly cautions, to try to adjudicate between the two narratives on the whole multitude of issues would be futile and counterproductive.²⁰ We must find ways to manage conflict with each other even when we disagree on who has caused the conflicts.

At the same time, for many experienced observers of American political culture, the two sides are not comparable, and to call America’s affliction polarization is a bad misdiagnosis. It implies equal responsibility, they say, when in fact Republicans/conservatives are far more to blame. The division is asymmetric, congressional experts Thomas Mann and Norman Ornstein have argued for years:²¹ Republicans are far more hostile, disruptive, and resistant to compromise than Democrats are. Political scientists Jacob Hacker and Paul Pierson wrote several years ago: [P]olarization is mainly driven by a sharp retreat from moderation on the right side of the spectrum. This development has occurred across multiple dimensions, from voting patterns and intensity of preferences to concrete policy demands and willingness to use once-rare hardball tactics. Prescriptions that ignore or downplay this reality are very likely to be ineffective and may even make the real problems worse.²²

These critics say that on the conservative side, as opposed to the liberal side, the news sources are more ideologically skewed, the members of Congress are more obstructive against popular policy measures like gun control, and the most popular politicians are more demagogic.²³

The 2020 election and the events of January 6, 2021, one might argue, removed any doubt about the asymmetric blame for polarization. Whatever the misdeeds of liberals and progressives, the argument goes, they do not compare to the immediate threat that Donald Trump’s version of conservatism has come to pose to core principles of popular government and the rule of law. Nothing compares to a violent assault on the halls of government, aimed at stopping the certification of lawful presidential election results. And that assault grew out of false claims of a stolen election, claims that nearly 70 percent of Republicans still believed more than a year after the Capitol insurrection.²⁴

It is unsatisfactory simply to treat polarization as symmetric. After January 2021, no one could reasonably deny the elements of radicalization or irresponsibility in the Republican Party.

But you don’t have to believe that polarization is symmetric in order to support protections for both sides on religious-liberty issues. Even if one side bears greater responsibility for polarization overall, or for the most immediate threats, that does not hold for every issue. I’ll argue that on the specific questions involving religious liberty, progressives bear at least as much responsibility as conservatives for polarization. Today’s atmosphere of political tribalism pushes us to treat groups as all good or all bad. But just as both-sides-ism tends to produce misunderstandings of a situation, so do sweeping, one-sided judgments.

To explain, let me turn to the work of theologian and social-political critic Reinhold Niebuhr. Probably the second most prominent Christian political thinker of the twentieth century (after Dr. Martin Luther King Jr.), Niebuhr influenced multiple groups and leaders. They included anti-Communist liberals in the Cold War, social justice activists of the 1960s, President Jimmy Carter in the 1970s, neoconservatives in the 1980s, critics of the Iraq War like Andrew Bacevich, and notably in recent years, President Barack Obama, who called Niebuhr one of my favorite philosophers.²⁵ I offer Niebuhr’s work not as a comprehensive approach to religion and politics, but rather for one key insight that is relevant to today’s polarization.

Niebuhr wrote repeatedly, across five decades and countless issues, about the necessity of holding two truths in tension. First, we must constantly make judgments of right and wrong between conflicting positions or actions. And second, all such judgments tend to reflect, in some degree, our own partial perspective on the situation or our tendency to self-justification and self-righteousness.

As an example of the first point, in the years before the Pearl Harbor attack, Niebuhr relentlessly criticized Christian pacifists who opposed American intervention to stop Nazi Germany because they said it would implicate Christians in violence and because America had committed its own wrongs. Niebuhr recognized that pacifism—the refusal to pursue war even to stop clear injustice or tyranny—proceeded from the Christian idea that "all have sinned (Rom. 3:23). If no one is innocent, then even morally motivated acts of coercion like defensive war, which the sinful character of man makes necessary, [should not] become final norms."²⁶ But Niebuhr ultimately dismissed the pacifist solution as simple Christian moralism that ignored the pervasive effect of sin in history. [B]y an uncritical refusal to make any distinctions between relative values in history, pacifism would allow fascist tyranny to undo the real, if imperfect, achievements of democratic societies.²⁷ All the distinctions upon which the fate of civilization has turned … have been just such relative distinctions.²⁸

But Niebuhr also maintained, in the same essay, that the recognition that all have sinned operates [a]s a principle of indiscriminate criticism upon all forms of justice. It reminds us that the injustice and tyranny against which we contend in the foe is partially the consequence of our own injustice—for example, in that particular moment, that the pathology of modern Germans is partially a consequence of the vindictiveness of the peace of Versailles.²⁹ This realization ought to mitigate the self-righteousness which is an inevitable concomitant of all human conflict.³⁰ In an influential later book, The Irony of American History,³¹ Niebuhr applied the tension to America’s struggle against communist expansion, a struggle that he argued was necessary but that tempted [America] to meet the foe’s self-righteousness with corresponding fury of our own. A frantic anti-communism, he warned, would come to resemble aggressive communism: in its temper of hatefulness, and in its certainty that it had the key to history (whether that supposed key be the communists’ class struggle or America’s freedom and divine blessing).³²

Niebuhr summarized this tension most fully in his dictum that there is an equality of sin but an inequality of guilt. He wrote (I’ll retain his male-centric terms) that [m]en who are equally sinners in the sight of God need not be equally guilty of a specific act of wrong-doing in which they are involved.³³ Thus the prophetic tradition of the Hebrew and Christian Scriptures, Niebuhr emphasized, aims its most severe criticism at the rich and the powerful, the mighty and the noble, who, in the words of the prophet Amos, ‘oppress the poor, [and] crush the needy.’³⁴ The mighty are especially guilty not only because their power enables them to do greater injustices, but also because it makes them especially prideful.

At the same time, pride can affect all persons, even those who aren’t mighty. Those who criticize the mighty—even justifiably—can still have an impulse to justify themselves, credit only their own perspectives, and downplay the interests and perspectives of others. And that fact presents a constant challenge to re-examine superficial moral judgments, particularly those which self-righteously give the moral advantage to the one who makes the judgment.³⁵

This nuanced position was a key part of Niebuhr’s overall approach, which came to be labeled Christian realism. And Niebuhr insisted that only such a nuanced account could correspond to the complexities of human nature and human reaction. It responds to the question, Who’s at fault? in a realistic manner. Polarization may currently be asymmetric: a wing of conservatism may currently bear responsibility for its most dangerous manifestations. Even so, the other side may bear equal or greater responsibility in certain respects or on certain issues. Human nature is complex and ambiguous. The combined issues, dynamics, and forces at play in our huge and varied nation are equally complex.

Of course, to say that moral judgments can become partial and self-righteous doesn’t tell us whether any specific judgment fits that bill. The latter determination requires examining the specific issue in question—in this case, the debates over religious freedom. This book makes the case that liberals and progressives, as well as conservatives, contribute to polarization over religious liberty. Both sides fail to take the other side’s religious-freedom interests, and related interests, with the seriousness they deserve.

The Perspective and Plan of the Book

In this book, I draw on nearly three decades of experience in religious-freedom scholarship and advocacy, to try to show (1) how religious freedom can help reduce polarization, and (2) how to define and defend religious freedom to achieve that goal. Over the years I’ve represented or advised people of many beliefs: Christians (conservative and liberal), Jews, atheists, Muslims, Native Americans, Jehovah’s Witnesses, Hare Krishnas, and the small sect called O Centro Espirita Beneficiente Uniao do Vegetal, whose claim to use a hallucinogenic substance as a worship sacrament was unanimously upheld by the Supreme Court. I’ve also filed amicus curiae briefs on behalf of, or in support of, most of those groups. I’ve tried to advance positions that protect religious liberty for all while respecting other interests. I’ve filed Supreme Court briefs advocating both civil marriage rights for same-sex couples and exemptions for religious dissenters; I’ve defended federal legislation similarly guaranteeing LGBTQ nondiscrimination rights along with meaningful religious exemptions.³⁶ I joined or wrote briefs challenging the travel ban aimed at Muslims and the penalties imposed on conservative Jack Phillips.³⁷

This book aims to explain that approach and apply it to the problem of polarization. It begins, in the next two chapters, by describing the problem: political/cultural polarization and the place of religious-freedom issues in that polarization. Chapter 1 summarizes the overall features of today’s polarization: its nature, causes, and consequences. The ideological sorting of the two major political parties has combined with rapid economic cultural change, the rise of adversarial and fact-denying media, and the weakening of mediating institutions to produce massive progressive and conservative blocs—two mega-identities—whose members view each other with anger, incomprehension, and fear. Although one side may be more responsible overall than the other, both contribute in specific ways by playing into each other’s anger and fears in a vicious cycle. The consequences run from partisan gridlock on increasingly pressing problems to the actual violence that occurred on January 6, 2021—and that may recur.

Chapter 2 describes how the last dozen years of religious-freedom controversies have reflected and aggravated polarization. It summarizes efforts by some conservatives to restrict Muslim religious freedom: antimosque campaigns, Trump’s travel ban, anti-Shari’a laws, and others. It also summarizes the pressures on conservatives’ religious practice from progressive laws: actual or threatened penalties against religious schools, social-service agencies, and individuals in certain occupations if they discriminate based on their religious tenets. I begin to argue here, as I’ll develop later, that both sides have shown selective commitments to religious freedom, giving it little weight when they’re unsympathetic to the group asserting it. That selectivity creates further resentment, and it harms religious freedom by making it a tool of ideological conflict rather than a principle of protection for all. A strong, sensible commitment to religious freedom for all should reduce polarization by reducing people’s fear that opponents can attack their deepest commitments. The current Supreme Court is giving religious freedom more and more protection, as this chapter begins to explain. I defend much of the Court’s religious-freedom work—although I note some shortcomings in it and caution that we should remain vigilant that the Court will protect classic religious minorities and LGBTQ people, as well as traditional Christians.

The next three chapters, the book’s middle section, set forth arguments for protecting strong religious freedom for all. As noted above, these are not the only arguments for the importance of strong religious freedom. But they are, I believe, the arguments most likely to persuade persons who are open to persuasion.

Chapter 3 argues that religion is a particularly important and pervasive component of personal identity. As a result, frustrating people’s ability to live according to their religious commitments causes them serious harm. That harm also occurs when government penalizes religious organizations, which help form and facilitate the religious identity of individuals. Religion is not the only important commitment, but it’s a central one; the founders protected it for that reason, and it still makes sense today. As one effort to explain its importance, and cultivate sympathy across polarized lines, I analogize the