The Biden administration needs to act quickly to right the balance between civil rights and theocracy. The working thesis of the Constitution is this: Unchecked liberty for human beings is an engraved invitation to abuse power. That principle applies in every scenario where humans are involved. As the Framers, and especially the drafter of the First Amendment, James Madison, understood, there is such a thing as too much liberty that threatens others. When it is unchecked religious liberty, it leads to the sacrifice of others at the altar of a particular theology. The Trump administration is a vivid example of the dangers of deferring blindly to religious agendas. Like the Grant administration, which attempted to “Christianize the Indians” to tragic consequences, the Trump administration abandoned those who do not share its politically preferred religious agenda, including Black and Latinx, women, LGBTQ, and children. In fact, religious liberty is often a zero-sum game, with political winners sacrificing others to their faith.
The Trump administration has modeled its “civil rights” agenda on politically conservative religious viewpoints while other civil rights have been pushed to the sidelines. For example, the administration aggressively pushed the extreme religious liberty standards introduced by the Religious Freedom Restoration Act (“RFRA”) across the federal government and the country, and at the same time prioritized “rights” for religious believers without regard to civil rights for LGBTQ or women. Now, the Department of Justice is trying to slip in limitations on mainstream civil rights before departing Washington, as the New York Times recently reported.
That should be a wake-up call for all of us. The following summarizes the steps needed to turn the United States away from the brink of theocracy and back toward respect for civil rights for all.
The Department of Justice and Civil Rights
The Department of Justice has been the home for federal civil rights enforcement, but, in the modern era, it has become something of a civil rights battleground. Religious entities wrapped themselves in the mantle of “civil rights” since the advent of the statutory, extreme religious liberty regime of RFRA and the Religious Land Use and Institutionalized Persons Act (RLUIPA), and the creation of DOJ positions for the purpose of serving religious entities, without reference to the separation of church and state. They have absorbed significant attention and resources from the DOJ and the President as other civil rights have been neglected.
What needs to be done: First, the Trump administration Executive Orders regarding civil rights, particularly this most recent attempt to rollback mainstream protections, need to be reversed. The Biden administration has already taken the needed next step by naming Merrick Garland as the pick for Attorney General and Kristen Clarke for the Assistant Attorney General to the Civil Rights Division. President-elect Biden is a man of faith, but he doesn’t endorse a theocracy that reflects only the beliefs of his church.
RFRA and the First Amendment
The Supreme Court handed religious believers yet another weapon against the laws that apply to everyone else with Tanzin v. Tanvir, when it held that claimants can obtain damages from federal government actors in their personal capacities under the Religious Freedom Restoration Act. The decision was no surprise, as that outcome was intentionally planted in the language of RFRA by religious lobbyists intent on taking all advantages possible. It is time to take stock of where we are with religious liberty. The pendulum has swung too far toward a religious liberty that is based on a trade concept: they want “most favored nation” status. That is, they can’t be treated worse than anyone else, but also it is perfectly fine if they are treated better. It is also fine if others, even those who are not co-religionists, suffer from their religious practices. With the Biden administration coming in, it’s time to take stock and make changes.
The First Amendment currently stands for the proposition that neutral, generally applicable laws apply to religious and non-religious actors alike. RFRA misguidedly frees the religious from such laws unless the government can sustain the nearly impossible burden of proving the law serves a compelling interest in the least restrictive way possible for this believer. The Trump administration pushed RFRA aggressively through one Executive Order after another creating preferences for religious actors in all federal agencies—without concern about the victims of their actions. It is possible that the Trump-crafted Supreme Court will try to read that RFRA standard into the First Amendment. That would be a disastrous move that would further tear this country apart.
Religious actors wield RFRA as a sword to carve up the federal civil rights laws. Justice Neil Gorsuch wrote for the Court in Bostock that Title VII extended to sexual orientation and gender discrimination, which was a step forward. But just as swiftly, he pulled out the rug from under LGBTQ by saying that RFRA was the “super statute” that would shield religious believers from having to treat LGBTQ employees fairly. Civil rights also were swept aside when the Supreme Court in Hobby Lobby let a for-profit crafts store chain deny women certain types of birth control to which the owners objected.
What needs to be done: RFRA needs to be amended, if not repealed. The Biden administration has pledged to support the Equality Act, which will address the harm to LGBTQ fueled by RFRA; it should also support legislation that removes RFRA from the realm of women’s reproductive rights, child sex trafficking and child labor laws, and invidious race discrimination. Religion should be no defense to the suffering of women, children, and minorities. As discussed below, the Supreme Court also needs Justices who respect the civil rights of all and not just a religious aristocracy.
Tax Exemption, Wealth Accumulation, and Lack of Accountability
Religious organizations also have the privilege of income tax immunity–without accountability—they do not have to publicly disclose donors or how they have handled their finances, unlike secular charitable nonprofits. Plus, they benefit from property tax exemptions, which means they can amass land wealth without public scrutiny or accountability.
When you combine no public reporting of finances for federal and state income tax purposes and no public accounting of land ownership, what you get is some of the greatest accumulation of wealth in the United States at the expense of taxpayers. With wealth and secrecy come a virtually impossible to ignore temptation to self-aggrandizement, corruption, and self-service at the cost of the public good. As one example of the problem: it is difficult to justify this level of opacity when they continue to fail to be transparent about long-term cover-up of child sex abuse by clergy across numerous faiths (and, of course, secular institutions, but they do not share this privilege of secrecy regarding their finances).
What needs to be done: The Biden administration needs to establish a Presidential Commission on Institution-based Child Sex Abuse, along the lines of the Australian model, to educate the public on the realities, and to consider legislation to remove tax immunity from those organizations that endanger children. It also needs to establish a Presidential Commission on the Financial Accountability of Tax-exempt Religious Organizations. Tax exemption is supposed to be a privilege for those who are serving the public good, not a secret haven for those harming others.
Government Underwriting Discriminatory Practices
Some religious entities also have aggressively pushed for government financial support in recent years. In a case pending at the Supreme Court, Fulton v. City of Philadelphia, they have argued that they have the right to city funding for foster and adoption services even if the organizations discriminate in violation of city law. In that case, the targeted group that the religious organization wants to discriminate against is LGBTQ parents.
At the same time, they have pushed to rip down barriers previously imposed by the Constitution’s Establishment Clause to obtain funding for explicitly religious education, contrary to James Madison’s advice. This destruction of the separation of church and state has been an agenda item for conservative Justices for a while, and has gained steam, as evidenced by the decision in Espinoza last Term. This campaign to eviscerate the Establishment Clause has been central to the Federalist Society’s push for federal judges that follow a religious issues litmus test and treat religious actors as a privileged aristocracy.
What needs to be done: The Biden administration needs to take seriously increasing the size of the Supreme Court, and to vet all federal judicial candidates for their views on the separation of church and state and the historical dangers of theocracy. They need to use the bully pulpit to encourage respect for all Americans without regard to faith.
The United States has been on the verge of theocracy for twenty years, but the Trump administration pushed us right to the precipice. It’s time to wake up from the illusion that all religious actors serve the public good. In fact, they are all humans, and as James Madison warned, “ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. [Leading to] superstition, bigotry, and persecution.”
President-elect Biden and Vice President-elect Harris: you have a chance to turn the country back to a land of civil rights for all Americans. Please lead the federal government to examine “religious liberty” without the rose-colored glasses before it’s too late.