New book explores: How should Americans think about religious liberty?

Washington D.C., Dec 30, 2019 / 11:09 am

Helping Americans understand the importance of religious freedom, as well as a measured view of contemporary threats to it, is the goal of a recent book from a leading attorney in the field.

Luke Goodrich has spent more than a decade at the religious freedom law firm Becket, and has worked on the legal team in several high-profile religious freedom cases before the Supreme Court, including Hosanna-Tabor v. EEOC, Burwell v. Hobby Lobby, Holt v. Hobbs, and Little Sisters of the Poor v. Burwell.

Goodrich's recent book, "Free to Believe: The Battle over Religious Liberty in America," explores the current religious freedom landscape in the United States today.

In an interview with CNA, Goodrich explained that when religious freedom conflicts arise, hostility is not usually to blame.

"You will sometimes have a case where the government is out to get religious people because of their religion, although that's fairly rare. You will sometimes have a case where religious people are simply wreaking havoc on society because of their religious practices," he said.

"But the vast majority of religious freedom conflicts involve neither of those situations, and instead simply involve situations where our very large government is going about its business regulating society, and religious people are going about their business worshipping God, and because of the breadth of government regulation and the diversity of religious practice, you end up with a conflict."

In these cases, he said, it is important for government to leave religious practice as untouched as possible.

"In the vast majority of cases, there is a workable solution, where the government can accomplish its interest, and where religious people can be left free to practice their faith."

Unfortunately, Goodrich said, the rhetoric in society does not always match this reality. Exaggerations and inflammatory rhetoric mean that the government is sometimes accused of persecution, while religious people may be falsely accused of bigotry or asking for a "license to discriminate."

"What I'm trying to do in the book, and what we're often trying to do in court in these cases is show that Americans are deeply divided over God, over sex, over human life. And yet we need to find a way to live together in relative peace, and protecting religious freedom is a starting point for that, and there are all kinds of solutions that will allow religious people to practice their faith without compromising the goals of society."

All people, even those who are not practicing any religion themselves, should care about religious freedom, Goodrich said.

The American founders firmly believed that the type of government they were establishing would only be successful in governing a morally virtuous population, he stressed. "And religion is one vital source of moral virtue that's necessary for our form of self-government."

There are practical benefits to the flourishing of religion in society, he added, such as schools, hospitals, nursing homes, orphanages, soup kitchens, and halfway houses, which are often run by religious organizations.

In addition, he said, religion has historically reduced social conflict, and it is a protection for dissent and diversity, important elements of American society.

"Religious freedom is a source of protection for all of our other rights, because religious freedom starts from the premise that there's an authority higher than the government, and the government can't take that away," he said.

"This recognition of some source of rights outside of and above the government is a foundational protection of all other rights – free speech, free assembly, freedom from unreasonable searches and seizure, freedom from cruel and unusual punishment."

But perhaps the most important reason to care about religious freedom, Goodrich said, is that it is a fundamental right, rooted in our nature as human beings.

Every person is born with a longing for truth, beauty, and goodness – ultimately a longing for God, he said.

"We all have this religious impulse and it can't be directed by coercion, it can only be directed voluntarily by conscience," he said. "So when the government tries to coerce us in matters of transcendent truth and our relationship with God, it's going against human nature and violating a fundamental human right. Everyone should care about religious freedom, because you cannot fully respect human beings unless you respect their religious freedom."

Still, religious freedom cannot be invoked to justify every type of behavior, Goodrich acknowledged.

"Like any right, religious freedom has limits, and they generally come from the government's duty to protect other people's rights – the right to life, the right to property etc.," he said. Freedom of religion cannot be used to protect acts of terrorism or child sacrifice, for example.

Finding the correct balance of religious freedom claims against government interests can be tricky, but the legal system has worked out tools to help find this balance, he explained.

"I think in general, it's essential to identify precisely what is the religious practice at issue and precisely what is the government's interest at issue, and is the government consistent in the way that it pursues that interest."

For example, difficult cases arise in a prison context, where prisoners are deprived of many liberties, but do not lose all of their freedoms, including religious freedom. Inmates motivated by religious conviction may seek to maintain a certain religious diet in prison, or groom their hair and beard in a certain way, or access religious literature. Meanwhile, the government has valid and weighty interests in restricting the liberty of prisoners.

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Balancing these two sides requires asking the questions: "What is the religious practice at issue? What is the government trying to accomplish? Is there any way it can accomplish its goal while still allowing religious freedom?" Goodrich said.

Another key test is that of sincerity, he continued.

"Religious freedom ultimately flows out of the human thirst for transcendent truth and obedience to conscience," he said. "And so because of that, religious freedom only protects sincere religious beliefs and practices."

Determining the sincerity of one's stated religious beliefs is similar to other questions of truth-telling in the law, Goodrich said. Courts look at consistency, how long views have been held, and sometimes basic knowledge of a belief system.

"That becomes relevant in prison, when a prisoner fakes a religious belief in order to get, for example, a diet that he thinks is better. It's relevant in a military context, where someone says they are conscientiously opposed to war – you have to make sure that's a genuine belief and not a convenient way to get out of military service. It comes up with parody religions like pastafarians, where they absolutely have free speech rights, but when they're trying to parody religion and protest religion without sincere religious beliefs themselves, they don't get religious freedom protection."

Goodrich also discussed the questions behind conflicts of religious liberty and LGBT claims, among the most contentious religious freedom debates in the U.S. today.

In the book, he argues that "there are strong arguments for protecting religious freedom in the context of gay rights," similar to the way that conscientious objectors are not forced to fight in war or participate in abortion.

"[W]hen our society is deeply divided on an important moral issue, we look for ways to protect both sides," he writes. "Protecting conscientious objectors respects the fundamental right of religious freedom and allows our divided society to live together in peace."

Christians should recognize that there is a "significant risk" posed by conflicts between gay rights and religious freedom, Goodrich advises in the book. They should anticipate such conflicts and possible mitigation, and they should avoid being overly reliant on government funds. But they do not need to give in to panic or alarm – they should also recognize that there are good arguments for protecting religious freedom in LGBT cases, and there is reason to believe these arguments will continue to prevail in courts.

Looking at the current state of religious freedom in the U.S. – and looking ahead to the future – Goodrich told CNA he is "very hopeful."

"We have a stable legal system with strong guarantees of religious freedom, due process, and the rule of law, and a deep national commitment to religious freedom. Just looking at the legal system and what it's been delivering, there are plenty of reasons for hope and for optimism."

He noted that Becket has a 90%-win rate in all of its cases, and is undefeated at the Supreme Court.

Ultimately, though, he has a deeper reason for hope as well. As a Christian writing to other Christians, he said, "we have a source of hope that goes much deeper than the current composition of the Supreme Court or the current occupant of the White House. We have hope ultimately rooted in a person, in Jesus, who said, 'In this world you will have trouble, but take heart, I have overcome the world'."

"We have hope rooted in an eternal perspective, so that regardless of the outcome of this or that case or that or that election, we have a strong foundation for hope, and that's part of what I'm trying to accomplish with the book, is call Christians back to the ultimate source of our hope, as well as the ultimate source of religious freedom," he said.

In this attitude of hope and confidence, Goodrich hopes his book will help Americans to better understand the nature of contemporary religious freedom threats, and be prepared to take practical action.

"We're called in scripture to be innocent as doves, but also to be shrewd as serpents, so we need to take stock of where we're at, and be ready for the challenges ahead," he said.

This article was originally published on CNA Oct. 23, 2019.