Does Religion Have a Place in the Diverse Marketplace of Ideas?
Charles J. Russo
In his dissent in Santa Fe Independent School District v. Doe, wherein the Supreme Court invalidated student-led prayer prior to the start of high school football games, a dismayed Chief Justice William Rehnquist expressed the sentiment of many Americans, that “[t]he Court … bristles with hostility to all things religious in public life.”1This commentary updates and expands modified parts of a much lengthier piece, Charles J. Russo, Is Religion the Lost Diversity in Education in an Era of “Militant Secularists?” 21 U. Notre Dame Australia L. Rev. 1 (2020). I offer my thanks to Paul T. Babie, Professor of the Theory and Law of Property, Adelaide Law School, The University of Adelaide, Australia, and William E. Thro, General Counsel at the University of Kentucky for helping me to shape this commentary. 530 U.S. 290, 318 (2000) (Rehnquist, C.J., dissenting). Sixty-seven percent (67%) of [respondents] agree with Attorney General William Barr’s remark at Notre Dame that “the problem is not that religion is being forced on others. The problem is that … secular values are being forced on people of faith.”’ Further, “‘… 47% agree there is ‘an unremitting assault on religion and traditional values.’” Americans Agree Religion Is Under Punishing Assault, Rasmussen Reports, Oct. 17, 2019.https://www.rasmussenreports.com/public_ content/ lifestyle/general_lifestyle/october_2019/americans_agree_religion_is_under_punishing_assaultIn light of Rehnquist’s comment, an argument can be made that the United States, a nation founded in part on an imperfect notion of freedom of religion, typically reserved for members of the dominant faith traditions in the early American colonies,2See, James W. Fraser, Between Church and State: Religion and Public Education in a Multicultural Society 7-21 (1999). seems to have lost its way.
The guarantee of religious freedom in the First Amendment3Pursuant to the First Amendment’s Religion Clauses, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;….”notwithstanding, some Americans perceive the increasingly secular culture as less than friendly to religion.
The believers perceive that the Judeo-Christian Western values on which the Nation was founded are increasingly being excluded from the marketplace of ideas.4Although a bit dated, “[a]ccording to a 2011 report by the National Association of Scholars, “The Vanishing West: 1964 – 2010,” available at https://www.nas.org/storage/app/media/ images/documents/TheVanishingWest.pdf, undergraduate curricula are increasingly jettisoning courses on Western civilization ….” Bradford Richardson, Reed College to overhaul ‘Eurocentric’ Western Civilization curriculum, Wash. Times (D.C.), Feb. 17, 2018, 2018 WLNR 3901664. One example of this trend is the fact that religion is often ignored or banned from public school curricula even though faith-based beliefs are at the heart of many diverse cultures.
Opponents of Christianity are often led by those on the “political left” who routinely call “themselves and their causes ‘progressive,’”5Michael Allan Wolf, Looking Backward: Richard Epstein Ponders the “Progressive” Peril, 105 Mich. L. Rev. 1233, 1245, n. 50 (2007). rather than liberal. According to their critics who are religious, the attitudes of some of these militant secularists are the antithesis of the open-mindedness they espouse, as they reject views not conforming with their own by largely excluding people of faith from the marketplace of ideas, evidencing the hostility to which Rehnquist referred.
Attempting to silence those with whom they disagree, some critics have even tried to prevent Catholics from receiving judicial appointments6Valerie Richardson, Kamala Harris, Mazie Hirono target Brian Buescher Knights of Columbus membership, Washington Times (DC), Dec. 31, 2018, 2018 WLNR 40276905 (noting that“Democratic Sens. Kamala D. Harris [and now vice-presidential nominee] and Mazie Hirono were accused of ‘religious profiling’ after they zeroed in on judicial nominee Brian Buescher’s membership in the 137-year-old fraternal Catholic charitable organization earlier this month in written questions. ‘The Knights of Columbus has taken a number of extreme positions,’ said Ms. Hirono, Hawaii Democrat, citing the group’s opposition to same-sex marriage. ‘If confirmed, do you intend to end your membership with this organization to avoid any appearance of bias?’Ms. Harris asked Mr. Buescher, who became a member 25 years ago as a teenager, ‘Were you aware that the Knights of Columbus opposed a woman’s right to choose when you joined the organization?’” The reporter added that “Sen. Dianne Feinstein of California came under fire in September 2017, when she raised questions about Amy Coney Barrett’s Catholic faith, telling the nominee during a hearing that “’the dogma lives loudly within you.’” See also Ashley McGuire, Anti-Catholicism Lives Loudly in Democrats, Real Clear Religion, Jan. 28, 2019, https://www.realclearreligion.org/articles/2019/01/28/anti-catholicism_lives_loudly _ in_ democrats_110207.html (highlighting anti-Catholic rhetoric from Democrat politicians). in clear violation of Article VI of the U.S. Constitution, according to which “no religious test shall ever be required as a qualification to any office or public trust under the United States.” Ironically, amid their calls for tolerance and acceptance of diversity, some progressive secularists demonstrate little or no respect for the beliefs of others, especially if they are religious, unless they conform to their own politically correct flavors of the day.
Blind to their own hypocrisy, many progressives, or “social justice warriors”7For reflections on SJWs, see, e.g., Steven Lemongello, Mystery surrounds political message Self-labeled ‘progressive’ group targets Democratic frontrunner in key race, Orlando Sentinel, July 24, 20202, 2020 WLNR 20637181 (discussing “the pejorative term ‘social justice warrior,’ or ‘SJW,’ used by conservative critics against progressives, [rather]than what progressives use to describe themselves, [justice warriors].”). (SJWs), call for diversity. Yet, their tolerance extends almost exclusively to diversity with regard to race and sexual orientation, important areas to be sure, while excluding many other forms of diversity, such as religion, with which they disagree. Ironically, these progressives risk creating a closing of the American mind with regard to religion.8This idea mirrors the title of Allan Bloom’s seminal work, The Closing of the American Mind: How Higher Education Has Failed Democracy and Impoverished the Souls of Today’s Students (Simon and Shuster 1987).
Again reflecting Rehnquist’s fears, proponents of the “wall of separation,” often joined by individuals from among the ranks of today’s progressives, demonstrate their opposition to religion in the educational marketplace of ideas9Perhaps the Supreme Court’s best-known use of the term was in Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) (“The classroom is peculiarly the ‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, (rather) than through any kind of authoritative selection.”’) (internal citations omitted) (invalidating statutes and regulations making membership in specified organizations prima facie evidence of disqualification for public employment in higher education). by filing litigation on an array of issues such as aid to children in faith-based schools10For a commentary on this issue, see Charles J. Russo & William E. Thro . Born of Bigotry, Died in Religious Liberty: The Supreme Court Ends the Blaine Amendments in Empowering Parental Choice. Canopy Forum (June 14, 2020). https://canopyforum.org/2020/07/14/born-of-bigotry-died-in-religious-liberty/ and prayer in public schools.11See supra note 1. Activists once went so far as to disrupt a Roman Catholic Mass in New York City’s St. Patrick’s Cathedral.12Conceding that such protesters represent a fringe minority in their particularly egregious disrespect for Roman Catholic beliefs, on December 10, 1989, members of ACT-UP, the AIDS-awareness group, chained themselves to pews in New York City’s St. Patrick’s Cathedral, shouting down Cardinal O’Connor at a Sunday Mass; others pretending to “receive” the Eucharist spat it out onto the floor, desecrating the Sacrament by stepping on the consecrated hosts. Mike Dorning, Religion, Gays, Politics Turn Parade Into Battle, Chi. Trib., March 15, 1993, at 11993 WLNR 4062014. Other activists singled out and sued Christian operated businesses,13See infra notes 16-20 and accompanying text. with mixed results, even if other options were available. Moreover, following Obergefell v. Hodges,14135 S. Ct. 2584 (2015). which mandated same-sex marriage, litigation continues when private business owners have, for example, refused to print materials for an organization advocating positions inconsistent with their religious beliefs,15See Lexington-Fayette Urban County Human Rights Comm’n v. Hands on Originals, 529 S.E.3d 291 (Ky. 2019) (affirming that the owners of a print shop that makes custom-made promotional materials was not obligated to print flyers for a group which represents and advocates for the LGBTQ+ because doing so violated their sincerely held religious belief disapproving of relations between members of the same sex and nonmarital relations between men and women). were unwilling to bake custom-made cakes for gay wedding ceremonies,16Masterpiece Cakeshop v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018) (reasoning that the Colorado Civil Rights Commission violated a baker’s rights by demonstrating overt hostility to his Christian faith when he refused to make a custom cake for a gay wedding). refused to print customized invitations for such events,17Brush & Nib Studio v. City of Phoenix, 2019 448 P.3d 890 (Az. 2019) (holding that designers of custom made wedding invitations could not be compelled to prepare items for a same-sex union because doing so violated their sincerely held religious beliefs rejecting such unions). did not want to photograph such activities,18Chelsey Nelson Photography v. Louisville/Jefferson County Metro Gov’t, 2020 WL 4745771, at *7 (W.D. Ky. Aug. 14, 2020) (partially granting a wedding photographer’s preliminary injunction challenging a local ordinance that would have required her to offer her services for same-sex unions, albeit on free speech grounds, as the court described “viewpoint-based compulsion to speak on politics or religion is the worst of all”). The court pithily added that “[c]Challenging questions remain unanswered at the intersection of free speech, religious liberty, and equal treatment,” consistent with issues this essay raises. Id. at *16. and would not sell flowers to be displayed at these gatherings.19See State v. Arlene’s Flowers, 389 P.3d 543 (Wash. 2017), cert. granted, jdgmt. vacated, 138 S. Ct. 2671 (2018), on remand, 441 P.3d 1203 (Wash. 2019) (affirming that a florist violated the state’s antidiscrimination law by refusing to make a floral arrangement for a same-sex union), cert. petition filed, U.S. Sup. Ct. 19-333 (Sept. 11, 2019).
Indeed, many of the same progressives who proclaim diversity as a virtue brook little or no dissent from those who stray from the preferred ideologies du jour on a wide range of issues as they do all they can to exclude even the vestiges of traditional religious values, including Biblical views of marriage and sexuality. Examples of other incidents evidencing hostility to religion are present in attempts to restrict, if not eliminate, religious speech on higher education campuses.20See, e.g., Uzuegbunam v. Preczewski , 378 F. Supp.3d 1195 (N.D. Ga. 2018), 781 Fed.Appx. 824, (11th Cir. 2019), cert. granted, — S. Ct. —-, 2020 WL 3865254 (July 9, 2020) (where students sued officials alleging that its prior policies violated their rights to freedom of speech and the exercise of religion among other claims after campus police notified one of the two that he could have been prosecuted for continuing to share his religious views and distribute religious literature because others complained about his actions even though he had reserved the free speech area. Lower courts dismissed the claim as moot because officials changed the policy; at issue before the Supreme Court is whether such a change to an allegedly unconstitutional policy is sufficient to render a case moot where the plaintiff sought only nominal damages). For earlier cases, see, e.g., Widmar v. Vincent, 454 U.S. 263 (1981) (ruling that when officials at a state university made facilities generally available for activities of registered student groups, they could not prevent a faith-based organization from gathering based on the religious content of its speech). But see Christian Legal Society v. Martinez, 561 U.S. 661 (2010) (allowing officials at a public law school to implement a policy requiring an on-campus religious group to admit all-comers from the student body, including those who disagree with its beliefs, as a condition of becoming a recognized student organization).
As the progressive revolution proceeds, the judiciary has been ground zero of the culture wars21The term “culture war” apparently first appeared in James Davidson Hunter, Culture Wars: The Struggle to Define America (Basic Books 1991); see also Courts and the Culture Wars (Bradley C.S. Watson ed., Lexington Books 2002). over a variety of issues, including the place of religion in education, and the larger American society. Criticizing the judiciary, Justice Antonin Scalia proclaimed that judges have “taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”22Lawrence v. Texas, 539 U.S. 558, 602-03 (2003) (Scalia, J., dissenting) (commenting on the Court’s having invalidated a state sodomy law applied to consenting adults). Further, the judiciary appears to be mirroring another of Justice Scalia’s remarks as he mused that activist members of the “Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.”23Board of Cmty. Comm’rs v. Umbehr, 518 U.S. 668, 711 (1996) (Scalia, J., dissenting) (affirming that the First Amendment protects independent contractors from the termination of or prevention of automatic renewals of at-will government contracts in retaliation for exercising their rights to freedom of speech). With the appointments of Justices Neil Gorsuch and Brett Kavanaugh, though, a new day may be dawning in support of religious freedom.
Regardless of whether one is a fan of President Donald J. Trump, he has kept his campaign promise24See Linda Feldmann, How Trump is moving heaven and earth to motivate evangelical voters, Christian Science Monitor, Aug. 6, 2020, 2020 WLNR 21985233 (“Mr. Trump has secured Senate confirmation for 200 federal judges, including two Supreme Court justices….”). to appoint originalists25See Charles C.W. Cooke, “To Take the Slings and Arrows”: A Conversation with Justice Neil Gorsuch, Nat. Rev., Oct 29, 2019 at 32 (reporting that “Justice Gorsuch’s animating conviction is that judges are there to understand and to enforce the Constitution as it was understood at the time of ratification, rather than read their own views—or the views they imagine are held by the majority of the citizenry—into the text.”). or textualists,26 See Jim Dey, Durbin to Supreme Court on gun-rights case: Back off or else, The News-Gazette (Champaign-Urbana, IL), Aug. 20, 2019, 2019 WLNR 25388738 (identifying “the [C]ourt’s five conservative justices [as] John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas … [and its] four liberals – Stephen Breyer, Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg.”). jurists to the Federal judiciary to interpret the Constitution as it is written. Trump has avoided appointing activists who engage in “judicial interpretive updating,”27Hivley v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 353 (7th Cir. 2017) (Posner, J., concurring) (maintaining that a woman who was alleged discriminated against due to her sexual orientation had a sex discrimination claim under Title VII.). rewriting the law as they wish it to be. Consequently, with a minority of judicial activists on the high Court bench, led by eighty-seven year old Justice Ginsburg,28See About the Court, Current Members, Ruth Bader Ginsburg, https://www.supremecourt.gov/about/biographies.aspx if Trump is re-elected, he can likely change the Court’s course for a generation by expanding the slender majority the originalists arguably enjoy in light of anticipated vacancies.
Encouraged by militant progressive and secularist supporters, opponents of the free exercise of religion in education still try to deny aid to children who attend faith-based schools,29See Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020). For a commentary on this case, see supra note 11. even though these schools, and other religious institutions,30A 2019 Pew Report reveals that 55% of Americans agree “churches and religious organizations do more good than harm in American society, 20% said they do more harm than good and 24% think they do not make much difference.” Pew Research Center Religion & Public Life, Americans Have Positive Views About Religion’s Role in Society, but Want It Out of Politics: Most say religion is losing influence in American life, Nov. 15, 2019, https://www.pewforum.org/2019/11/15/americans-have-positive-views-about-religions-role-in-society-but-want-it-out-of-politics/ have served generations of Americans well. As such, faith-based schools, or more properly, their students, should not be punished by having their very existence threatened by costly litigation, using resources they can ill afford, because their leaders steadfastly adhere to their religious beliefs in the face of changing sexual mores.
The Supreme Court’s ruling in Our Lady of Guadalupe School v. Morrissey-Berru,31140 S. Ct. 2049 (2020). upholding the ministerial exception’s recognition of the authority of officials in faith-based schools to decide who qualifies as ministerial notwithstanding, issues remain. More specifically, it remains to be seen whether threats of spurious, yet expensive, litigation that can bankrupt schools continue in the wake of Obergefell and Bostock v. Clayton County,32140 S. Ct. 1731 (2020). where a slim majority rewrote Title VII by extending statutory protection to those who are gay and transgender. While it goes without saying that people who are gay and transgender must be free to live as they wish, free from discrimination, the constitutional duty of re-writing statutes is properly that of Congress, not five unelected Supreme Court justices, because legislative change can address exceptions and protections for those impacted by such changes in ways unavailable to the judiciary.
Another threat to religious freedom is church closures due to COVID-19,33For a commentary on this issue, see Paul T. Babie & Charles J. Russo, (May 18, 2020). COVID-19: Why the Balance Between Freedom of Religion and Public Health Matters, Canopy Forum (May 18, 2020) https://canopyforum.org/ 2020/05/18/covid-19-why-the-balance-between-freedom-of-religion-and-public-health-matters/ actions which clearly demonstrate that the United States is at a crossroads. This threat is especially stark in light of cases such as the Supreme Court’s five-to four decision34See, e.g., Calvary Chapel Dayton Valley v. Sisolak, — S. Ct. —, 2020 WL 4251360 (Mem) (July 24, 2020) Chief Justice Roberts joined Justices Ginsburg, Breyer, Sotomayor, and Kagan in the majority. refusing to enjoin the governor of Nevada’s order allowing casinos and specified facilities to admit 50% of their maximum occupancy but limiting churches, synagogues, and/or mosques, regardless of their size, to admitting more than fifty people to enter. Justice Gorsuch’s brief, but scathing, dissent, reasoned that “…there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”35Id. at *6. How can officials order churches, synagogues, and/or mosques to close but allow casinos and other businesses, whether in Nevada or elsewhere, to remain open without violating the First Amendment? Americans must now either accept religious views as a form of the ideological diversity about which some progressives preach, or the nation risks becoming one where “those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”36Id. at 2642-43.
The Supreme Court has generally adopted a position supporting the “wall of separation” metaphor, particularly as applied to education without being overtly hostile to religion. Clearly, the Court has not encouraged the venomous language voiced by some foes of religion. Still, one must ask whether the Court’s separationist views helped to create a culture wherein narrow-mindedness and lack of respect could spawn. Although the Court has begun to push back against the “wall” metaphor in support of religious freedom with decisions such as Espinoza v. Montana Department of Revenue,37140 S. Ct. 2246 (2020). wherein it upheld a tuition tax program designed to help pay tuition for children whose parents enrolled them in faith-based schools. Yet, many Americans still voice concerns that secularists are attacking their rights to religious freedom.38Supra note 1.
Due to what he suspected would be concerns about the status of religious freedom, Justice Kennedy’s unpersuasive dicta, writing for the Court in Obergefell making same-sex marriage the law of the land, apparently did little to allay the fears of people of faith.39Kennedy wrote:… it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths….Obergefell, 135 S. Ct. at 2607. In fact, litigation continues against religiously affiliated schools for expecting their staffs to be in heterosexual marital relationships.40See, e.g., Starkey v. Roncalli High School and Archdiocese of Indianapolis, Becket: Religious Liberty for All, Sept. 30, 2019, https://www.becketlaw.org/case/starkey-v-roncalli-high-school-archdiocese-indianapolis/ (defending the right of Archdiocesan officials to decide what it means to be Catholic without governmental interference where a former teacher sued after losing her job for entering a same-sex civil union in violation of her employment agreement). If anything, many believers share the concerns Justice Alito voiced in his dissent as he mused that in the post-Obergefell world, the Supreme Court’s pronouncement “will be used to vilify Americans who are unwilling to assent to the new orthodoxy . . . by those who are determined to stamp out every vestige of dissent.”41Obergefell, 135 S. Ct. at 2642.
Given the dire picture Justice Alito painted for people of faith and their institutions, questions emerge about what can be done to allow individuals on both sides of the challenging questions surrounding human sexuality, to disagree, even vociferously, but not be personally disagreeable. Thus, the next part of this essay offers three suggestions to serve as food for thought about what educators, lawmakers, and people of good faith can do, not only in schools, but also in the wider society, to foster appreciations of, and respect for, religion as a form of an increasingly overlooked, if not lost, form of diversity.
Recognizing that religious beliefs represent the breadth of human diversity, it is essential to recognize the hostility to religion displayed by some critics, particularly in educational contexts–even as they continue to call for other forms of cultural, racial, ethnic, and political diversity. What happens in schools is significant, because it reflects the status of the larger society. Educators, then, can advance respect for diversity by teaching students that while they are, of course, free to disagree with those not sharing their beliefs, they should do so without being disagreeable, meaning there is no need for rudeness or a lack of civility, particularly in school settings.
First, it is important to emphasize that tolerance and respect are two-way streets. For instance, a growing body of litigation reveals efforts to compel Christians, even where alternatives are available, to violate their sincerely held religious beliefs by providing services for individuals with whose lifestyles they disagree.42See supra notes 16-20. Additionally, protesters have disrupted guest speakers on campuses with whom they disagreed, often preventing them from expressing their views. Those subjected to this so-called “cancel culture” include “conservative pundit Milo Yiannopoulos, Christine Lagarde, International Monetary Fund Chief, and Condoleezza Rice, former secretary of state,”43Dugan Arnett, Academia wrestles anew with how freely words can flow, Boston Globe, Sept. 7, 2016, 2016 WLNR 27184214. as well as Somali refugee Ayaan Hirsi Ali.44Thomas Gelsthorpe, Academia promotes ‘diversity’ yet expects group-think, Cape Cod Times (Hyannis, MA), Nov. 14, 2018, at A9, 2018 WLNR 35469778.
The upshot is that instead of trying to coerce Christians to act in ways inconsistent with their consciences or shouting speakers down, it would be more productive if protesters would listen to differing perspectives and engage in dialogue with those with whom they disagree in an attempt to find common ground. If individuals on different sides of issues can engage in serious debate, there may be a mutual growth of respect even if they cannot come to full agreement as they learn to agree to disagree respectfully.
In a closely related second recommendation, rather than avoiding discussions of religion and matters of faith seemingly at almost all cost, curricula from early primary school through higher education should include at least one mandatory course requiring students to learn about other faiths. Requiring such a class is consistent with a recommendation from a recently conducted national longitudinal measure, The Interfaith Diversity Experiences and Attitudes Longitudinal Survey, administered three times during students’ college careers, in 2015, 2016 and 2019, at 122 campuses in the United States, examined subjects’ perceptions of, and engagement with, religious diversity.45Alyssa N. Rockenbach, Matthew J. Mayhew, Mary Ellen Giess, Shauna M. Morin, B. Ashley Staples, Benjamin P. Correia-Harker & Associates, IDEALS: Bridging religious divides throughhigher education. Interfaith Youth Core (2020), https://ifyc.org/sites/default/files/navigating-religious-diversity.pdf.
The study revealed how little college students know about religion generally, a situation that does not bode well for openness to other faiths. By way of illustration, although “most students see the importance of bridging religious divides….When students were asked if theydeveloped a deeper skill-set to interact with people of diverse beliefs during college, just 32% answered affirmatively.”46Id. at 9.
In addition, the study reported that while almost three-quarters of the respondents answered that they spent time in college learning about people of different races/ ethnicities or countries, less than half reported learning about people of different religions.47Id. at 21. Further, “nearly three-quarters of fourth-year students earned a grade of C or below on a short, standardized quiz testing their knowledge of eight different religio[ns and] nearly three-quarters of students in their fourth year achieved a “C” grade or below. A full quarter of fourth-year students received a failing grade.”48Id. at 22
Teaching students about different religions can help them and people of other faiths, or the rapidly diversifying religious population, or lack thereof, in the United States as numbers of people with no faith,49See In U.S., Decline of Christianity Continues at Rapid Pace: An update on America’s changing religious landscape, Pew Research Center, Religion and Public Life, Oct. 17, 2019, https://www.pewforum.org/2019/10/17/in-u-s-decline-of-christianity-continues-at-rapid-pace/?utm_source=Pew+Research+Center&utm_campaign=d8dae17adc-EMAIL_CAMPAIGN_ 2019_10_17_01_06&utm_medium=email&utm_term=0_3e953b9b70-d8dae17adc-400258905(reporting that in the U.S. “the religiously unaffiliated share of the population, consisting of people who describe their religious identity as atheist, agnostic or ‘nothing in particular,’ now stands at 26%, up from 17% in 2009’). or who are atheists,50Id. “Self-described atheists now account for 4% of U.S. adults, up modestly but significantly from 2% in 2009; agnostics make up 5% of U.S. adults, up from 3% a decade ago; and 17% of Americans now describe their religion as “nothing in particular,” up from 12% in 2009.”). to appreciate that although they may disagree with the tenets of different religions, whether on sexuality or other matters, believers ordinarily act based on their sincerely held religious beliefs rather than discrimination. After all, it seems unlikely that students, as future leaders, can learn to appreciate diversity of perspective if they are not exposed to a variety of religions and belief systems, in informative, rather than proselytizing, ways while still in school.
Third, to reiterate, while all individuals should be free from discrimination, like tolerance, efforts at pursuing equity must be something of a two-way street. Yet, in seeking to enact anti-discrimination laws, a serious question emerges over whether people of faith can be made to violate their consciences or, as discussed earlier, shouted down by their opponents.
As it did in Title VII of the Civil Rights Act of 1964,5142 U.S.C. § 2000e-2(a). Congress should enact legislation forbidding private businesses who are engaged in interstate commerce from discriminating against individuals or other companies due to their religious beliefs. Put another way, Congress should apply the First Amendment to the private sector with appropriate exceptions for religious organizations.52140 S.Ct. 2367 (2020). In this way, Congress would join the not fewer than twenty-one states that have adopted Religious Freedom Restoration Acts to limit, if not forbid, governmental regulations restricting religious freedom absent having compelling interests for doing so.53Travis Weber, State Religious Freedom Restoration Acts, National Council of State Legislatures Research Council, May 2017, http://www.ncsl.org/research/civil-and-criminal-justice/state-rfra-statutes.aspx.
In Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania,54See House Education and Labor Committee Hearing, Do No Harm: Examining the Misapplication of the Religious Freedom Restoration Act, Congressional News, June 25, 2019, 2019 WLNR 19595066 at n. 43, “The U.S. Department of Health and Human Services announced its “final conscience rule that protects individuals and health care entities from discrimination on the basis of their exercise of conscience in HHS-funded programs.” the Supreme Court recently interpreted the Affordable Care Act as authorizing the Health Resources and Services Administration to exempt or accommodate employers’ religious or moral objections to providing no-cost contraceptive coverage to their employees. Consistent with this decision, federal and state laws should provide conscience exceptions to protect individual employees and religious organizations from being coerced to act inconsistently with their sincerely held religious beliefs. Providing such a balance by retaining respect for religion, while also protecting individuals from non-discrimination for living according to the dictates of their faiths and/or consciences, is essential in free and open societies.
Religion and respect for diversity in its many manifestations are clearly important in society. Thus, while people may disagree on matters of faith, it is imperative to do so respectfully, regardless of the nature of their differences. Only by having mutual respect can individuals and groups learn to disagree without being personally disagreeable, recognizing the importance of true diversity of perspective, including religion, for the greater good in the hope of creating inclusive communities.♦
Charles J. Russo, M.Div., J.D., Ed.D. is the Joseph Panzer Chair in Education in the School of Education and Allied Professions and adjunct professor in the School of Law at the University of Dayton.