Unreleased Religious Freedom Manifesto Isn’t the Culture War Compromise It Hopes to Be

In the coming weeks or months, a group of prominent conservative Christian scholars from Baylor university and the Religious Freedom Institute, an independent NGO that grew out of Georgetown University’s Berkley Center,* plans to issue a manifesto on religious freedom, a copy of which Religion Dispatches has obtained [PDF]. They are currently seeking prominent endorsers and, according to one organizer, they hope to have a “grand signing ceremony”—perhaps including former presidents of the United States.

Though the document includes much on which reasonable people would agree, it is marred by efforts to slant the meaning of religious freedom towards conservative interests in the culture war, and to silence advocates for equality and social justice in the name of civility.

First, it’s important to note that the “American Charter of Freedom of Religion and Conscience” does include some salutary language, for which it will be rightly praised. Here, for example, are a sampling of statements few would find disagreement with:

  • “Freedom of religion and conscience is a foundational right for all human beings without exception, a right to be enjoyed by people of all faiths and worldviews, whether religious or secularist, transcendent or naturalistic. It is therefore a responsibility and duty for all people to respect—and for government and other institutions to protect—this right for all people.”
  • “We stand united in opposition to all discrimination, violence, and threats of violence against Americans based on their faith. We call on elected leaders and our fellow Americans to condemn such unconscionable acts in the strongest possible terms and to work with us to defeat them.”
  • “[G]overnment must always respect and protect the bedrock principle that one’s rights as a citizen should never depend upon one’s religious identity, beliefs, or peaceful practices.”

But there’s more going on here than meets the eye.

The team behind the Charter

“We are working to ensure the Charter’s signers and supporters come from all points along the spectrum of American religious and political life,” wrote Religious Freedom Center vice president Charles Haynes, in a September letter to prospective endorsers. “This is a project organized by the Religious Freedom Institute led by Tom Farr at Georgetown University.** I have been working with them on this initiative.”

Given the institutional backing and the generous rhetoric of much of the Charter, many well-intentioned people will no doubt consider signing on to what appears to be a laudable effort to promote a cherished American ideal. But before they do, there are a few things they might consider.

Project organizer Thomas Farr is a longtime leader in such neoconservative entities as the Witherspoon Institute and the Institute on Religion and Democracy (IRD), as well as a consultant to the United States Conference of Catholic Bishops, with whom he has worked closely on religious liberty matters. And much of the Charter shows his hand. Farr gave a talk in 2015 titled “ISIS and Indiana: The Global Crisis of Religious Liberty and Catholic Responsibility,” which weaves Islamophobia and homophobia into a single fabric that allegedly threatens religious freedom. To make his case, Farr conflates the “torture and death” faced by “our brothers and sisters in Christ” internationally, with “the greatest single threat to religious freedo m in the United States”: same-sex marriage. Religious liberty, he suggests, is in danger of being “lost in America.”

Other members of the drafting committee include: Os Guinness, an evangelical drafter of the Williamsburg Charter (an influential antecedent of the current project); Jacqueline Rivers, co-founder and executive director of the Witherspoon-sponsored Seymour Institute for Black Church and Policy Studies, perhaps best known for its open letter to Hillary Clinton, days before the 2016 election, challenging the candidate on her support for reproductive health and failure to support religious freedom in the face of “a well-financed war… being waged by the gay and lesbian community”; and William Galston, a Wall Street Journal columnist and Brookings Institution scholar who was a leader in the Democratic Leadership Council, a driving neoliberal force in the Democratic Party in the 1990s.

The ‘conscience’ of a conservative interpretation

“This Charter is… distinctively American because it springs from the United States’ commitment to freedom of religion and conscience—a commitment that is, at its heart, covenantal…” [emphases in the original]

Once again, it’s not controversial to note that the Framers of the Constitution and the First Amendment sought religious freedom and equality for citizens. It’s unlikely, however, that the Framers either intended or would agree with religious exemptions from the law, as the authors of “American Charter” imply with this revisionist grafting of “conscience” (or religious exemptions) onto the Framers’ stated purposes regarding religious freedom. The term “conscience” has taken on a very specific meaning in the contemporary religious freedom debate, a concept that we will return to in another context.

Historian John Ragosta, who has authored two books on religious freedom, told Religion Dispatches earlier this year, that while “government can pass ‘neutral’ laws (not targeted at religion) which may happen to be inconsistent with a person’s beliefs…. Jefferson was very clear that you can’t use religion or religious freedom to claim an exemption from an otherwise valid law.”

“Jefferson,” Ragosta explained, “used the obvious example of child sacrifice or a law which prohibited the slaughter of lambs when the military was in short supply of wool uniforms. The best modern example is laws against racial discrimination: While many people insisted that interracial dating or marriage violated their religion, the Supreme Court, in the 1983 case of Bob Jones University v. United States, rightly refused to grant an exemption to anti-discrimination laws based on religion.”

With its claim that the “commitment” of the United States regarding “religious freedom and conscience is at its heart, covenantal,” the Charter appears to be trying to press the Framers into a religious vision they did not share. The term “covenant” has several meanings, but the adjectival form “covenantal” is seldom used outside of an explicitly Christian context. On its own this might not be a notable word choice, but given the Charter’s authors, aims and antecedents it’s just another in a series of red flags.

A finger on the scale of justice

In recent years, the Supreme Court has allowed for various degrees of religious exemption from laws under certain circumstances. How far this will go remains to be seen. The authors of American Charter want us to honor the intentions of the Framers, but they also proceed as though Congress and the Supreme Court haven’t taken the First Amendment in a new and different direction. They write:

“While recognizing that there are differing views of how legal standards should be interpreted and applied, we affirm the First Amendment ban on laws ‘respecting an establishment of religion or prohibiting the free exercise thereof.’”

Had they stopped there, they would have been fine, but then they drop the other shoe:

“We also agree that any substantial burden on the freedom of religion must be justified by a compelling governmental interest and that the means chosen for serving that interest must be the least restrictive of freedom of religion.”

The Charter authors fail to acknowledge that this language is drawn from the federal Religious Freedom Restoration Act of 1993, (RFRA), which in turn was cited prominently in the Supreme Court’s controversial 2014 Burwell v. Hobby Lobby decision. The conservative 5-4 majority in Hobby Lobby provided what has since become part of the legal justification for a range for individual and institutional religious exemptions from the law.

Some of the model bills of the Christian Right’s Project Blitz are based, in part, on this same reasoning, and some of these have already passed. In addition, Mississippi, for example, permits child welfare agencies to turn away LGBTQ children and youth, allows doctors to deny medical care, and state officials to decline to marry couples of whose marriage they disapproveThis reasoning likewise influences the religious freedom rules propounded by the U.S. Department of Justice under Jeff Sessions, and such matters as whether commercial bakers of wedding cakes have to do business with same-sex couples. (The breadth and depth of such claims making it into jurisprudence will likely increase now that Brett Kavanaugh is on the court.

Whatever one may think about RFRA, Hobby Lobby, and the DOJ’s religious freedom program, it’s more than disingenuous to claim that these things are unifying, common ground approaches to religious difference in a pluralist society. In fact, they are also major areas of dispute in the culture wars, to which the American Charter group pretends it is not a party.

Readers should therefore maintain a healthy skepticism regarding some of the Charter’s ostensibly conciliatory statements, such as, “Although it is not always possible to uphold both non-discrimination and religious liberty claims in particular cases, both claims should be taken seriously and both sides should seek common ground.”

Religious freedom is not civility

The Charter states that part of its mission is “to revive our nation’s vision of a civil public square to counter the incivility of the last half century of culture-warring,” and to address the “peril of our day, for current conflicts and confusions on both the Right and the Left are threatening to undermine our national commitment to freedom of religion and conscience.”

The Charter does not say how this is so, or exactly who is responsible for this alleged “peril.” But the Charter group’s posture as a neutral and reasonable party with no ideological agenda is as unsubstantiated as its broad-brush allegation against “the Left and the Right.”

All this makes their call for civility sound suspiciously like an effort to mute the voices of those most likely to suffer should this vision of religious freedom be fully realized. There are many freedom struggles in the United States that demand attention and redress. But the immediate targets of the Charter group would seem to be the struggle for LGBTQ equality—which is confronted by well-funded efforts to gain legal exemption from everything from providing health care, adoption and foster care services for LGBTQ people—and women seeking to manage their reproductive health and lives in ways that certain religious interests may disagree with.

This is why the unacknowledged shift in the meaning and usage of terms reveals much about their intentions.

For example, the antecedent Williamsburg Charter treated religious freedom and conscience as synonyms while the American Charter refers to “religious freedom and conscience” [emphasis added]. This unexplained decoupling of the terms strongly suggests that they’re referring to contemporary religious or “conscience” exemptions from the law.

We’ve seen in recent years efforts by the Christian Right and the USCCB to seek a variety of “conscience clause” exemptions from the law—from pharmacies and pharmacists not having to sell birth control or abortifacient medications (or provide referrals to pharmacists who would); to medical personnel excluding themselves from providing health care to LGBTQ people; to even indirect participation in providing abortion services.

In addition to enlisting the Founding Fathers, as noted earlier, the Charter attempts to enlist long deceased religious leaders of the Civil Rights Movement in support of their redefining of religious freedom:

“… acts of conscience in the public life of our nation have energized and guided many of our most important movements for social justice, preeminently the work of Rev. Dr. Martin Luther King Jr., Rabbi Abraham Joshua Heschel, and the Civil Rights Movement to which they were integral.”

Set aside for a moment the troubling attempt to suggest an equivalency between the right to discriminate on the basis of religious belief and those who challenged and disobeyed the law in service of justice for a population that had been (and continues to be) legally and systematically mistreated. To suggest that King and Heschel were models of civility is more than a stretch, and is worth considering in some detail.

Much of what King, Heschel and others said and did at the time was considered to be contentious, disruptive and certainly uncivil. Those who hold power do not give it up easily. They’re also not usually responsive to appeals for justice, no matter how civilly made. One need look no further than the beatings and murders of civil rights workers in the South and savage attacks on peaceful protestors against the war in Vietnam. (Many of us forget that King and Heschel also marched as leaders of Clergy and Laymen Concerned about Vietnam.)

This is all the more remarkable given that Charter leaders were warned about the pitfalls of appeals to civility at their own program at the Brookings Institution in September 2017. Joshua DuBois, former head of the Office of Faith Based and Neighborhood Partnerships in the Obama White House, spoke of the then-recent white supremacist riots in Charlottesville, Virginia and the horrific murders by a white supremacist at a black church in Charleston, South Carolina in 2015.

“Friends, this is a time when the darkest parts of the human soul are coming to the surface yet again,” he said. “The answer is not simply civility or the knowledge of our ideals, because we have in fact known them, even written them down in times past, and civility has never saved us; it just makes us feel good while some others suffer.”

DuBois recalled how:

“civil rights giants like Dr. C.T. Vivian and Joe Lowery… explained to me that it was the religious freedom advocates, the civil and moderate and center left and right pastors who were in fact the most dangerous and destructive to the civil rights cause because they thought that their first principles and their civility would save them without interrogating the depths of the evil in the human hearts that they saw around them. It was almost a self-indulgent protection for them.”

In fact, DuBois told the people packed into the Brookings auditorium, King’s 1963 Letter from Birmingham Jail was “perhaps one of the most important texts in this space that anyone could read.” King, he said, “was writing to moderate Christian and Jewish leaders who encourage him to align more closely with the ideals of the country and to operate with greater civility. They kept saying we’ve got to have more civility because they thought that law and principles and civility would be the most effective way of achieving civil rights.”

Such ideas are hardly new, As New Yorker staff writer Hua Hsu wrote in 2014, “calls for genteel discourse from on high always feel like deeply nostalgic fantasies offered in bad faith.” Which is another reason why the America Charter comes across as brazenly seeking to silence dissent.

The struggle for influence in American religious and cultural life has been going on since long before the founding of the United States. And the founding principle of religious freedom and equality on which so much else depends, remains a profound and still-evolving aspiration. But our culture of democratic pluralism and separation of church and state (which, notably, doesn’t make it into this manifesto) depends on our unambiguous commitment to sustain it. This clarity allows us to be sure in the knowledge that the time and effort it takes to achieve equality in a society with contending ideas will be worth the effort.

That’s why it’s disappointing, even alarming, that the American Charter’s paean to pluralism undermines that very surety with this subterfuge—that seeks to press the best of American democratic aspiration into the service of the agenda of the Christian Right and the United States Conference of Catholic Bishops.

*This article originally stated that the American Charter issuers included scholars from Georgetown University, which isn’t technically correct. In an email correspondence with the communications manager of Georgetown University’s Berkley Center it became clear that, although the bios of both the project director and senior advisor still include those affiliations, none of the members of the American Charter team is currently affiliated with Georgetown University as of this summer. See below for more. 

**Charles Haynes’s letter to potential endorsers quoted above, dated 2 months after Farr left Georgetown University, incorrectly identifies him as affiliated with G.U. However, his close colleague’s error is understandable given that, as with the other members of the American Charter team, Farr is still listed as the director of Georgetown’s Religious Freedom Research Project on his G.U. faculty page, in addition to still being listed by the Berkley Center as the Program Leader of G.U.’s Religious Freedom Project. 

It isn’t rare for affiliations, particularly like those between Farr and Georgetown, which have included many positions at a variety of institutes and centers, to remain for 3 months or more following an individual’s departure. But given the relative response time in the present case one wonders whether efforts to disaffiliate Farr (and others) from Georgetown are being selectively applied in a case where Farr’s objectivity and motives have been called into question.

It should also be noted that while the Berkley Center’s communications manager has stated clearly that “the American Charter project has never been endorsed or in any way run out of [the Berkley Center] or Georgetown,” the Charter was conceived and drafted at least a year before members of the team disaffiliated, and was contemporaneous with the development of the Religious Freedom Institute, which itself “[grew] out of the Berkley Center’s Religious Freedom Project” in 2016.

All of which is to say that this appears to be a distinction without a difference. Given the 8 years of work hosted at Georgetown that overlapped with and led to the creation of the RFI and drafting of the American Charter—not to mention the overlap in key figures, affiliations, and funding sources—the suggestion that Georgetown University and its Berkley Center isn’t implicated in the American Charter and the efforts of the RFI is akin to claiming that a parent plays no role in the formation of a child.