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    The Church of Carrières-Saint-Denis by Georges Braque, detail

    Religious Liberty and the Courts

    An Interview with Eric Rassbach

    By Eric Rassbach

    January 20, 2021

      I'm surprised that Rassbach seems to shrug off the danger of the "Equality" Act. If it were to pass and be upheld by the Supreme Court, it would be disastrous, especially for religious schools. Biden's pandering to LGBT militants doesn't exactly fill me with confidence. I can only hope that the Supreme Court will soon overturn its terrible Smith ruling, which is what made the RFRA necessary in the first place. Religious liberty shouldn't be subject to legislative approval. That's the whole point of the First Amendment, as was long understood before the Smith decision in the early 90s.

    • David Stein

      This position seems so well thought out, so cogent - even so obvious. It addresses the biggest concern I would have, as a devout Catholic and a progressive, with the plans of the Biden-Harris administration. Restrictions on religious liberty, even if abused by reactionary forces, are indispensable for us. There is certainly an anti-Christian sentiment in parts of the progressive movement, and one doesn't know exactly how much that drives their positions. But for progressives, seeking to shut down religious viewpoints for the sake of "inclusionary" purity is disastrous politics as well as destructive ethics.

    Plough’s Peter Mommsen spoke with Eric Rassbach, vice president and senior counsel for the Becket Fund for Religious Liberty, about the outlook for religious liberty issues in the United States.

    Plough: Last October, much of the nation’s attention was focused on the confirmation hearings for the new associate justice of the Supreme Court, Amy Coney Barrett, and the theme of religious liberty played a big role in that debate. What do you think is the outlook for religious liberty after the inauguration of President Joe Biden?

    Rassbach: I think one thing to remember is that all nine of the justices have said, both in court and out of it, that religion has a special place in society. If you look at the different Supreme Court cases that have been decided in recent years, with a few exceptions, they’ve been nine to zero, seven to two. They’re really not as controversial as people think they are. It’s become sort of a hot potato in general political discourse, but if you think about it, all the justices have had some sort of connection to religion in their lives. Some went to religious school, like Justice Sotomayor, as she wrote about in her memoir, and Justice Thomas, who attended a Catholic college. Justice Kagan gave a remarkable speech at the Touro Synagogue in Newport about the place of Jewish people within American life. So it’s clear that they all understand the special role and importance of religion in the lives of many Americans. There are clearly disagreements about certain things, particularly when it comes to the establishment clause, but there’s actually a lot more unanimity than the Court gets credit for. I don’t think that the addition of Justice Barrett will really change any of that.

    So is it fair to say that turning religious liberty into a partisan issue during the Barrett hearings is a misreading of what’s actually happening in the Supreme Court in the first place?

    I think that’s right. If you look at the latest Little Sisters of the Poor decision, it was seven to two. So there’s a lot more agreement among the justices than the theater of Senate confirmation hearings would imply.

    In our last presidential election, religious liberty played a role as well, and was often put forward, particularly by Trump supporters, as a reason for voting for him, especially within conservative Christian communities. Will a Biden-Harris administration be as dangerous for religious liberty as many of them feared?

    Well, as Vice President Biden was well-known to have argued against the position of the then-Obama administration with respect to the contraceptive mandate for the Little Sisters of the Poor. So there’s a lot of discussion about how Biden supported making an exception for them and other religious nonprofits and I would hope that would still be his position today. I think it’s a senseless and divisive issue, and a recipe for losing more cases at the Supreme Court if the federal government were to flip back to going after orders of nuns. We’ll have to see what happens.

    Being a religious actor in American society means not just talking the talk but also, like the Little Sisters of the Poor do, walking the walk. President-elect Biden has stated a commitment to passing the Equality Act, banning discrimination in regard to sexual orientation or gender identity, within the first hundred days of the administration. This specifically includes, as I understand it, setting aside application of the Religious Freedom Restoration Act (RFRA). Is that something that you have spent any time thinking about?

    I am aware of that, but I’m not a politician, so I can’t tell you how likely such things are to come to pass. I will say it would be a grave error to try to restrict the Religious Freedom Restoration Act in that way. I think it would only increase the likelihood that people are going to rely on the First Amendment to protect their situation or what they’re trying to do as opposed to that statute. It’s just divisive for no good reason. The reality is that there haven’t been very many Religious Freedom Restoration Act cases since it was enacted.

    You just mentioned the potential divisiveness of some of these debates. How, after the last four years of divisive politics, can supporters of religious liberty do a better job of speaking to our more secular fellow citizens about why religious liberty matters and why it should continue to command respect both in law and in society?

    I think that’s a vital question. When I began practicing in this area of the law, no one paid that much attention to it. There was an assumption, on the part of religious organizations in particular, that everybody thinks religion and religious exercise is good. They used to think, “Everybody likes churches and synagogues.” So it’s taken them a very long time to realize that they actually still have to make their case.

    The Church of Carrières-Saint-Denis by Georges Braque

    Georges Braque, The Church of Carrières-Saint-Denis (public domain)

    If you don’t show up in court to make your case you’re going to lose. So the first thing religious groups need to do is decide, “Hey, I need to make the case!” There are a lot of reasons to make the case and a lot of good arguments. It’s helpful, though, to start from first principles and then address the more global level.

    Very few people think it’s okay, for example, for the Chinese government to round up Muslims in northwestern China and send them to a gulag. There are other examples around the world of oppressed religious minorities, where people realize that there has to be space for religious liberty, even just as an anthropological matter.

    Taking religious liberty out of the partisan context in the United States helps explain its basic principles. But explaining and demonstrating in public what religious entities do for society, what their role is, and highlighting the sheer diversity of religious traditions in the United States is really crucial too. What really captured a lot of people’s minds in the example of the Little Sisters of the Poor was that it was obvious they were doing enormous amounts of good: helping vulnerable elderly people who have nowhere else to go and giving them some dignity in their last years. Most people would agree that that kind of service should never be shut down because of some sort of partisan debate! Being a religious actor in American society means not just talking the talk but also, like the Little Sisters of the Poor do, walking the walk.

    I think Plough readers plus people of different religious traditions should really commit themselves to making the case for religion within society, the cultural case, the practical case, the social case, and not to be afraid to do so. Because I think a wrong response to any hostility would be to go into a defensive crouch and just hide. To quote a verse from the Bible, you’re not supposed to hide your light under a bushel, and that’s true of all religious traditions. Hiding the light under a bushel is just not a good idea.

    Contributed By

    Eric Rassbach is vice president and senior counsel for the Becket Fund for Religious Liberty.

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