I just saw a Christian Nationalist flag hanging on a home and wondered if they knew what they were signing up for. As I explained at some length here, Christian Nationalism only serves a minority of Christians. The American people do need to understand what it means before we are living in a theocracy, which is a synonym for an intolerant religious culture. To understand its features, it is useful to take a look at the Napa Legal Institute’s annual Faith and Freedom Index, which purportedly provides a neutral ranking of the states’ religious liberty legal environments. In fact, it is skewed to its conservative religious values, not all religions. Their metric is their beliefs. In the interest of truth in advertising, the Index should be entitled instead Faith vs. Freedom.
Breaking Down the Categories
Here is how the Napa Legal Institute describes its index: “The benchmarks measure each state’s ‘friendliness’ to religious freedom and regulatory freedom for nonprofits. This Index is similar to popular surveys ranking states that are the most business-friendly, the best for retirement, or the best for raising a family.” In fact, it’s not like any of those three rankings, which rest on neutral facts. The conservative Christian worldview of the Institute dooms its index to a subjective assessment of laws from the perspective of believers who seek the exclusion of gays, are intolerant of other believers, and who reject the separation of church and state. That is a minority of Americans. They aim to use political power to suppress other believers.
The index uses six categories, which constitute their religiously-driven litmus test:
- State constitutional law. They favor extreme protections to the detriment of the people they harm, as I discuss below.
- They provide positive points for a state Religious Freedom Restoration Act, which imposes statutorily extreme religious liberty on state laws, as I discuss below.
- They encourage states to exempt all faith-based organizations from the state’s anti-discrimination laws in “public programming.” For example, they score highly a state that permits discrimination against gay couples or gay children in faith-based foster care or adoption agencies, or a company that refuses to do business with gay couples.
- They score positively what they call “religious freedom for faith-based employers.” In fact, this category assigns negative scores for state anti-discrimination laws and favors the right to discriminate at will whether it is based on race, gender, sexual orientation, or alienage – even when they are using tax dollars.
- In the most ignoble attack on the greater good, they give brownie points to states that exempt religious entities from emergency measures. This obviously comes straight from the COVID-19 era when all public gatherings were shut down including churches as needed to prevent the spread of the disease. The hubris here is breathtaking. Why should they be given special exemption from hurricane or wildfire evacuations or, say, chemical factory leaks?
- Finally, they grade states on whether they have “Blaine amendments,” which forbid taxpayer dollars going to religious schools. This is the money line item.
Religious Liberty vs. Extreme Religious Liberty vs. Theocracy
Let’s start at the most basic level: religious liberty is a zero-sum game. By definition, what is meant by “religious liberty” is the relation of religious believers to the rule of law. Duly enacted laws restrict harmful practices; at this moment in history, the mission of the religious right is to impose their beliefs on their communities, neighbors, employees, customers, and country. They aren’t seeking merely to practice their beliefs, e.g., by not having abortions themselves, but also to block anyone else from having an abortion according to their own consciences. For them, intolerance of other believers is built into their religious liberty calculus.
In short, they seek to engage in harmful practices due to their faith. For example, a darling of the religious right, or Christian Nationalists, take your pick of the label, is to keep LGBTQ individuals out of their businesses, as we saw in 303 Creative v. Elenis and workspaces, as we are now seeing with their use of the Religious Freedom Restoration Act (RFRA) to nullify Title VII’s nondiscrimination protections for LGBTQ employees, as Justice Neil Gorsuch encouraged them to do in Bostock v. Clayton County. That’s right, RFRA is now a pathway to shove LGBTQ individuals from secular businesses because of the faith of the owner. It is the very presence of LGBTQ people in their spaces that they object to.
The racist policies of the Jim Crow era were driven by an inseparable blend of religion and culture. Separating the races was divinely mandated. The same religious superiority complex infects the religious right now; they just have different targets of removal. Now it’s LGBTQ persons. Christian Nationalists don’t want gays in their businesses or their children’s schools, even in books. After being soundly defeated in the culture wars, they are attempting to bully their way to control the rest of us. Nowhere is that more clear than in the Napa Legal Institute’s index, which counts anti-discrimination and public accommodations laws as anti-religion.
Let me now explain the differences between the First Amendment’s religious liberty, the extreme religious liberty the religious right has been campaigning for, and the intolerant theocracy they seek.
Religious Liberty. Under the First Amendment’s Free Exercise Clause, neutral and generally applicable laws apply to everyone, even the religious as the Court most clearly explained in Employment Div. v. Smith. A great example is the law that requires you to stop at a stoplight when it is red. Say a believer is late for church and so runs a red light; their faith doesn’t give them the right to avoid a ticket. Another contemporary example is the law against child sex abuse. Covering up for child sex predators is not legal because the person endangering children is a member of the clergy. They have to obey the laws protecting children every bit as much as a public school or sports team.
Also under the First Amendment, the government may not target or persecute religious actors and institutions. In Church of Lukumi Babalu Aye v. City of Hialeah, the city reacted to the Santerians’ practice of sacrificing animals and leaving them to bleed out on the curb. They outlawed animal “sacrifice.” That was unconstitutional because the only entity to be affected by the law was a particular religion. If they wanted to outlaw the activity, they would have had to make the law generally applicable and throw out a much larger net, e.g., making it illegal to kill animals, which would have affected kosher slaughtering and even euthanasia. That neutral ordinance was politically infeasible, which reinforces how the “sacrifice” ordinance targeted a specific religious practice. The “generally applicable” requirement for a law to apply across the board even to religious actors works well to drive lawmakers away from persecution and singling out by forcing them to focus on the actions they seek to make illegal and not a subcategory of particular religious actors.
Justice Antonin Scalia’s opinion in Smith went on at some length also explaining that religious liberty has also been attained via legislative exemptions to neutral, generally applicable laws. To attain those exemptions, though, the proposed exemption has to be vetted in the legislative process, which should consider who would be harmed by the exemption. Thus, exemption from neutral, generally appliable laws has not been constitutionally mandated but rather a matter of competing public policies. On the one hand there is the policy behind the neutral, generally applicable law. On the other hand, there is the religious liberty rationale. For example, some states have enacted “faith healing” exemptions to the laws that require parents to provide medical care to their children to avoid death and permanent disability. In Oregon, when it became clear that such an exemption led to many children’s deaths, they rolled back the exemption. Some of the faith-healing groups moved to South Dakota, which has a strong religious exemption, where there are cemeteries with numerous infant and child burials due to the failure to obtain minimal medical care. As I argue in God vs. the Gavel: The Perils of Extreme Religious Liberty, lawmakers need to consider the realistic impact of requested religious exemptions in light of the common good and not defer blindly to religious requests because they are religious.
Extreme Religious Liberty. When the Supreme Court decided Smith, religious organizations that had been attempting to obtain a constitutional right to violate any laws that burdened their religiously motivated conduct, they turned their attention to Congress. In other words, they had been seeking an extreme standard for decades and Justice Scalia’s opinion, which was both comprehensive and definitive, rejected those efforts. Thus, they drafted legislation entitled The Religious Freedom Restoration Act, or RFRA, which would force governments to accommodate religious actors in violation of neutral, generally applicable laws. They also garnered short-lived support from the left in the ACLU, People for the American Way, and Americans United for Separation of Church and State; those organizations pulled away when it became clear that RFRA was being used as a cudgel against the civil rights of others.
RFRA passed in 1993 and was held unconstitutional by the Supreme Court in 1997 in Boerne v. Flores in a case in which I represented the town of Boerne, Texas, challenging RFRA. The Court reviewed its own free exercise jurisprudence and said that RFRA was a far step away from it, so RFRA wasn’t simply enforcing the First Amendment but rather creating a whole new test favoring the religious over the common good. Once it was held unconstitutional, groups fanned out to the states to try to enact state-level RFRAs. To date, there are 28 state RFRAs.
The religious groups went back to Congress demanding re-enactment. The Democrats foolishly blinked and permitted a narrower bill applicable to the federal government to pass by unanimous consent in 2000. While there were strong constitutional arguments in Boerne against the federal version of RFRA including separation of powers and Article V’s constitutional amendment powers, the federal government was barred by the Department of Justice from challenging it in court, and so RFRA as applied to federal law has been standing and unchallenged since enactment. (Congress also passed the Religious Land Use and Institutionalized Persons Act for religious individuals and entities to overcome zoning and prison regulations.)
RFRA’s test introduces a mechanism by which believers, including business owners, can push back against neutral, generally applicable laws. The best example is the Hobby Lobby decision, where the owner of Hobby Lobby crafts stores invoked his religious belief against abortion to avoid the Affordable Care Act’s contraception mandate, which is without question a neutral, generally applicable law. He said certain contraceptives covered by the mandate and, therefore, in his employees’ benefit plans, were abortifacients. Applying RFRA, the Court held that even though his belief was erroneous, and they weren’t abortifacients, the Justices would not question his sincerity. (In fact, RFRA does not require that level of abject pandering to religion, but the conservative majority on the Court apparently does.) RFRA requires the government to prove it has a compelling interest in the law and that the law is the “least restrictive means” of regulation for this believer. This sounds like mumbo jumbo, but at base it means the religious have a privilege to violate every law that no one else has. So if you’re religious you can avoid Title VII’s anti-discrimination provisions, but if you’re not, Title VII applies.
The Court declined to even consider whether there was a compelling interest, and went straight to the least restrictive means test, saying the government couldn’t win enforcement of the contraception mandate, because there was a less restrictive means of providing these forms of contraception to their female employees: the government could pay for it. Now, that is a ridiculous and infeasible alternative, but the “LRM” test doesn’t require common sense interpretation but rather just an active imagination. Thus, Hobby Lobby was permitted to remove contraceptives from their benefit plans for their female employees to fit their faith—even though Hobby Lobby could not have hired only its own believers under the federal anti-discrimination laws, meaning that the owner would not be able to impose his beliefs on their benefit plans. That’s extreme religious liberty far removed from what the Constitution requires.
There is a dangerous temptation by religious lobbyists to think the end (following their faith) justifies the means, including misleading the public about the history and law. RFRA’s vociferous proponents, now almost exclusively right-wing religious groups, often portray it as a permanently bi-partisan law, which is very misleading. The bi-partisan support splintered as the right’s use of RFRA has become more and more antithetical to civil rights. They also recite how it passed “unanimously.” Not quite–it passed by “unanimous consent,” which means no recorded votes and few members present for passage. The harm inflicted by RFRA is now apparent as it is routinely invoked to get around anti-discrimination laws for LGBTQ individuals. The religious right portrays the Do No Harm Act, which would cut back on the harm caused by RFRA to children and LGBTQ as opposed to religious liberty. To the contrary, it’s a release valve on the one-sided extremism perpetrated by RFRA. It’s also a religious liberty bill for those believers who believe that God loves LGBTQ individuals and sanctions their marriages. That’s right—this is about accommodating other religious believers, the ones who aren’t tightening their grip on power now. The mark of extreme religious liberty is its narcissistic world view—they are the center of the universe and whatever harm they inflict on others is the price to be paid for their “liberty,” aka tyranny.
The growing number of “Nones,” which is the fastest growing cohort among believers and who are either atheists, agnostics, or religiously unaffiliated strongly believe in LGBTQ equality in the workplace and the right to same-sex marriage, and therefore would support the Do No Harm Act. Yet, the right continues to push hard for new RFRAs, including in Georgia, which has a sizable LGBTQ population.
RFRA has brought us extremist views and a pervasive belief pushed by the religious right that its extreme standard actually is constitutionally required. They are constantly slipping between talking about “religious liberty” as constitutionally required and RFRA, without explaining to the public that RFRA represents an extreme standard that harms others. There are very few religion scholars among voters who know the actual score and even few who are outing the religious right for its excesses. The concept that a believer should be immune from the law simply because they are a believer is the end of the rule of law and the pathway to a theocracy, as we are now seeing post-election.
Theocracy. At least with RFRA, the government has some opportunity to argue for its interest in regulating through a neutral, generally applicable law. The next step from RFRA for the self-righteous on the right now is the establishment of a state religion that is privileged and intolerant of all others. Following the election, we have seen southern states roll out policies that can only be explained as attempts at establishing an American theocracy. Oklahoma was out of the gate quickly as it established a state Department of Religious Freedom and Patriotism.
Students were required to watch the announcement of the Department, which included a prayer to God to help President-elect Trump and a directive to students to be patriotic. This is the intermingling of church and state the Framers warned us against particularly James Madison in his Memorial and Remonstrance. Moreover, a public school directive to patriotism was declared unconstitutional in West Virginia State Board v. Barnette where the Justices held that compulsion to patriotism is unconstitutional and eloquently explained: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”
We are told we need conservative Christian political control so we can return morals to the country, which is ironic given their overwhelming support for Donald Trump in the last election, who has led his cabinet choices with an alleged pedophile, sexual attacker, and the most cynical choice of all, Linda McMahon, who is accused of covering up a child sex abuser in the WWE for decades, to lead the Education Department!
As the Faith vs. Freedom Index shows, Christian Nationalism is intended to impose a very specific Christianity on the country to the detriment of the millions of believers who disagree. It’s a power grab based on the false historical assumption that the United States was ever a united Christian culture. It wasn’t at the start as I discuss here and it isn’t now. In the colonies and then the states the established religions took advantage of the others, sometimes going so far as the Puritans and Congregationalists in Massachusetts who killed Baptists and Quakers for having the wrong faith. We have always had diversity and a need for mutual forbearance.
The right has gotten away with silencing the vast majority of Americans by calling them “secularists.” It’s time for the silent majority of believers in the United States that don’t believe what the Christian right believes and would not consent to their rule—whether Christian, Jewish, Muslim, or any other faith or atheist or agnostic—to speak up and demand liberty and tolerance for all Americans and letting their elected representatives know.
The tradition of the First Amendment’s construction of religious liberty in the U.S. starting with the Reynolds v. United States decision in 1878 established two principles that have nurtured religious diversity and mutual tolerance of differing beliefs, i.e., religious peace: (1) respect for the rule of law and (2) a principle of avoiding harm to others. If the majority can hold onto those two values, we will not be taken down the path of destruction that follows the theocratic grab for power now imagined by the Christian Nationalist movement.
