Religious Liberty in a Polarized Age
One exercise on political partisanship I enjoy doing with my classes is to read out a list of words and phrases while the students work together to classify them as either red or blue—Republican or Democrat. It starts off simply with broad groups in the population: the students all “know” that farmers are red while artists are blue, and many grow uncomfortable to realize how much they rely on stereotyping. That continues when the students are given inanimate objects or abstract concepts that should have no inherent partisan identity and find, to their own surprise, that they are unanimous in the assertion that pickup trucks and black coffee vote for the Republican party while movies and the concept of recycling campaign for the Democrats. Most worryingly, the students find that even concepts that should be universal—justice, equality, an American flag, a globe—seem to carry a red or blue stain in their minds.
If universal principles become partisan ones instead, then we run the risk of supporting them only when it serves our side’s interests to do so. We may even oppose some common good solely because our enemies support it. Thomas Berg opens his book by contrasting two cases involving religious liberty—the Trump administration’s travel ban and the Masterpiece Cakeshop v. Colorado Civil Rights Commission decision—and argues that public opinion on those cases was split not by commitment to religious freedom but along partisan lines instead. In other words, that red and blue stain has spread to the idea of religious freedom, transforming it from a calming influence to a source of controversy. This example provides the motivation for Berg’s thesis: drawing on his considerable history of religious liberty scholarship and advocacy, he argues that in a polarized age, Americans should ardently hold to a guarantee of religious freedom for all.
Berg’s book is broken into three major sections. The first two chapters give background on polarization, first in general and then applied to religious liberty in particular. Berg presents an overview of political science research and survey data on polarization, then an investigation of partisan reactions to religious freedom issues, like the aforementioned travel ban and Cakeshop cases. It is import- ant to note that these chapters are, intentionally, not neutral in two senses. This is not a book centered on studying polarization, and so polarization is always presented as a societal problem to be explained and solved. The potential benefits of polarization, in terms of increased political engagement, accountability, stable law-making, and clarity that scholars such as Abramowitz (24) have proposed aren’t relevant to an argument advancing religious liberty and so rightly aren’t discussed in any detail. The second sense in which these chapters are non-neutral is their partisan tone. The blame for polarization is consistently assigned to one party over the other, for example, and Berg makes clear his assumptions about the parties here and throughout the book, such as expressing surprise that members of one party would care about the life of a black inmate in the Dunn v. Smith case (81). As Berg writes about the prevalence of polarization in American society, his own words provide a reinforcing example.
The next three chapters each detail a separate argument for supporting religious freedom. Importantly, these arguments all focus on religious freedom as a means to some other desirable end such as respecting personal identity, promoting civic peace, or encouraging public service and charity. Readers expecting a defense of religious freedom as a good worth pursuing in its own right are going to be disappointed. However, given that the purpose of this book is a persuasive appeal to a polarized nation, the choice to focus on the “returns” of religious freedom seems apposite. As Berg notes, “…some arguments are more likely than others to appeal across the lines of a divided society” (90).
Finally, the last four chapters of the book attempt to show how the support for religious freedom called for in the previous section could and should be implemented in society. Chapter 6 lays out general principles for respecting religious freedom, and chapters 7 and 8 each examine, respectively, one contentious issue in current politics where religious freedom is part of the discussion—the treatment of religious minorities (with a focus on Muslim Americans) and sexual issues (particularly marriage and weddings). Finally, chapter 9 argues for limits on religious expression by government officials. Berg makes strong, passionate appeals throughout these last four chapters. The examples of religious minorities harmed by devaluing of religion, such as Native American groups banned from possessing owl feathers for ritual purposes when secular researchers were permitted access (244) or the heartbreaking tale of Mary Steinmetz, a Jehovah’s Witness who died due to government officials’ refusal to grant a religious exemption allowing her to receive an organ transplant performed in accordance with her faith (197) all serve as strong support for the importance and broad relevance of valuing religious freedom.
I will note that I was unable to reconcile Berg’s stance in chapter 9 with his positions in the rest of the book. While chapter 9 takes a strong stance against government officials speaking in favor of or displaying their religion, examples used throughout the rest of book rightly celebrate members of religious minority groups who serve in public positions receiving exemptions from general requirements. Decisions that support the right of police officers of the Muslim faith to wear beards despite regulations requiring clean-shavenness (244), for example, or that of Sikh government workers to wear (secured) kirpans as symbols of their religious faith (201) are lauded, while those that allow for public prayer or other religious displays by government workers are condemned. The distinction drawn is that public prayer by a coach is “subtly coercive” (327) in a way that wearing a headscarf as a teacher or praying over one’s own lunch is not. Yet it is hard to see how a charge of subtle coercion could not also be brought against those Sikh government workers or any other religious minority members who happen to be public servants, and barring such people from government positions is clearly unacceptable. Nor is it clear how this fits with Berg’s focus on protecting personal identity—should government officials be restricted from expressing other aspects of their identity as well? French schools are criticized by Berg for ignoring the “free choice” of young Muslim students to wear head-scarves (320) while the choice of students to join a football coach in prayer is taken to be coerced (303). Drawing clear lines of what is permissible and what is not in this area seems essential for a book that has the protection of religious minorities as one of its main goals.
Berg’s book is full to bursting of excellent, thoughtful, artfully phrased passages on how religious freedom can and should work in our divided society. When discussing the religious liberty due to organizations (110), for example, he doesn’t simply take a side. The potential cost of religiously free organizations (such as possible employment discrimination when a non-religious candidate is ineligible to apply for a position at a religious charity) is weighed carefully against the harm that would be done to members of such groups by imposing restrictions, and the balance he strikes is defended in terms that appeal to both religious and non-religious readers alike. Or take his thoughtful and gentle approach to dealing with a seeming flip-flop from Justice Elena Kagan, who downplayed the importance of religious objections in Burwell v. Hobby Lobby Stores, Inc. while referring to religious belief as a “core aspect of identity” in Town of Greece v. Galloway. He does rely heavily on a few oft-repeated examples to make his arguments such as the travel ban or Masterpiece Cakeshop, and that may leave some readers, particularly those who differ in their interpretations of those cases, wanting more variety. Overall, however, the book is reflective and deep.
Religious freedom is too important to be stained red or blue. For that reason, I would recommend this book strongly, both as a general read for those interested in the issue, and especially for undergraduate classes on the subject. Berg forces readers to examine their own beliefs and grapple with the idea of whether they truly support religious freedom as a principle for all, or only when it’s a convenient weapon in a partisan struggle.
