"Does Religion Have a Place in the Diverse Marketplace of Ideas?" by Charles J. Russo

Does Religion Have a Place in the Diverse Marketplace of Ideas?

Charles J. Russo

Photo of Ludwigsburg, Germany marketplace/ maxmann/ Pixabay/ CCO

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.”¹In 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,² seems to have lost its way.

The guarantee of religious freedom in the First Amendment³ 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.⁴ 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,’”⁵ 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.

Ironically, amid their calls for tolerance and acceptance of diversity, some progressive secularists demonstrate little or no respect for the beliefs of others…

Attempting to silence those with whom they disagree, some critics have even tried to prevent Catholics from receiving judicial appointments⁶ 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”⁷ (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.⁸

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 ideas⁹ by filing litigation on an array of issues such as aid to children in faith-based schools¹⁰ and prayer in public schools.¹¹ Activists once went so far as to disrupt a Roman Catholic Mass in New York City’s St. Patrick’s Cathedral.¹² Other activists singled out and sued Christian operated businesses,¹³ with mixed results, even if other options were available. Moreover, following Obergefell v. Hodges,¹⁴ 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,¹⁵ were unwilling to bake custom-made cakes for gay wedding ceremonies,¹⁶ refused to print customized invitations for such events,¹⁷ did not want to photograph such activities,¹⁸ and would not sell flowers to be displayed at these gatherings.¹⁹

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.²⁰

As the progressive revolution proceeds, the judiciary has been ground zero of the culture wars²¹ 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.”²² 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.”²³ 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 promise²⁴ to appoint originalists²⁵ or textualists,²⁶ jurists to the Federal judiciary to interpret the Constitution as it is written. Trump has avoided appointing activists who engage in “judicial interpretive updating,”²⁷ 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,²⁸ 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,²⁹ even though these schools, and other religious institutions,³⁰ 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,³¹ 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,³² 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-19,³³ 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 decision³⁴ 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.”³⁵ 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.”³⁶

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,³⁷ 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.³⁸

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.³⁹ In fact, litigation continues against religiously affiliated schools for expecting their staffs to be in heterosexual marital relationships.⁴⁰ 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.”⁴¹

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.⁴² 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,”⁴³ as well as Somali refugee Ayaan Hirsi Ali.⁴⁴

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.

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.⁴⁵

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.”⁴⁶

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.⁴⁷ 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.”⁴⁸

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,⁴⁹ or who are atheists,⁵⁰ 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.

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.

As it did in Title VII of the Civil Rights Act of 1964,⁵¹ 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.⁵² 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.⁵³

In Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania,⁵⁴ 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 Panzer Chair in Education & Director, Ph.D. Program in Educational Leadership, School of Education and Health Sciences, Research Professor of Law, School of Law, University of Dayton, USA. Russo is also an Adjunct Professor in the Law School of the Sydney campus of Notre Dame University of Australia.

Recommended Citation

Russo, Charles J. “Does Religion Have a Place in the Diverse Marketplace of Ideas?” Canopy Forum, September 14, 2020. https://canopyforum.org/2020/09/14/does-religion-have-a-place-in-the-diverse-marketplace-of-ideas/

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