Today, the U.S. House Judiciary Committee held a hearing on the “State of Religious Liberty in America.” What was perhaps most striking about the hearing was how dated many of the speeches and arguments felt—as if an Obama-era hearing was being held nearly a month into the Trump administration.
Three of the witnesses and many of the congresspersons who spoke conjured a world in which a hostile federal government seeks out well-meaning and peaceful Christians for baseless persecution, and in which the Civil Rights Act of 1964 represents the greatest threat to religious liberty. Meanwhile, other legislators and a lone witness desperately tried to redirect the conversation to the fact that President Trump campaigned on a platform of Islamophobia and recently admitted that he intends to prioritize immigration by Christian refugees. No speaker brought up other salient religious liberty issues, such as a recently-filed Religious Freedom Restoration Act (RFRA) claim challenging the Dakota Access Pipeline and an increased interest in using RFRA to resist immigration law.
The witnesses at the hearing included Kim Colby of the Christian Legal Society, Casey Mattox of Alliance Defending Freedom, Hannah Smith of Becket, and Rabbi David Saperstein, who served as United States Ambassador-at-Large for International Religious Freedom under President Obama.
The first three of these, all from conservative organizations that advocate for broad religious exemptions, pushed a narrative of religious persecution fueled by several fundamental misrepresentations: first, that efforts to combat anti-LGBTQ discrimination, or to provide access to contraception, constitute malicious anti-Christian harassment rather than attempts to expand access to jobs, services, housing, and health care; second, that groups seeking anti-LGBTQ and anti-choice exemptions want merely to “live-and-let-live” when in fact many of these organizations have consistently sought to ban LGBTQ relationships and abortion; and third, that issues around sex, marriage, and reproduction constitute the primary site for religious liberty disputes in the current political climate.
Sticking to their anti-Obama talking points, the speakers seem not to have grasped that it may become increasingly difficult to claim the mantle of “religious liberty” without speaking out against the Islamophobic rhetoric adopted at the highest levels of government, and the dramatic rise in anti-Muslim hate groups across the country.
While Representative Louie Gohmert of Texas sought in his remarks to pit religious minorities against each other, claiming that the legacy of the Holocaust was preventing Germany from adequately screening out Muslims that “hate Jews,” Representative Steve Cohen—Tennessee’s first Jewish congressperson—called Islamophobia the “latest form of dog-whistle politics” and noted that he himself had received an increased number of “jabs” for his faith in recent months. Thus Trump’s EO on immigration has shed a clear spotlight on what many advocates and legislators mean when they use the phrase “religious freedom”—and what they don’t.
Furthermore, no one in the room seemed to have fully grappled with the fact that expanding a right to religious accommodations may come back to haunt conservatives, as progressive faith leaders and religious practitioners search for ways to employ RFRA for their own spiritual practice, including helping Syrian refugees, protecting the environment, or providing sanctuary to undocumented immigrants.
None of this is to understate the continued relevance of anti-LGBTQ and anti-choice religious exemptions. Legislators have promised to re-introduce—and the President has promised to sign—the First Amendment Defense Act (FADA), which would sanction religiously-motivated discrimination against same-sex couples and unmarried pregnant and parenting persons. Many states continue to propose similar exemptions. And the recently-leaked Executive Order on religion, if signed, would provide legal cover for even large companies to defy laws that conflict with certain religious beliefs about sex, marriage, and reproduction.
But as significant as those measures remain to LGBTQ families, unmarried parents, and women, what was left unsaid during the hearing is of equal import: the religious right may not have a monopoly on the “religious freedom” platform for long, especially if they continue to ignore the new free exercise and establishment clause battles being waged in the courts, legislatures, and streets.
