August 8, 2018 at 11:27 am PDT | by Gabriel Hudson
Sessions’ Religious Freedom Task Force attacks religious freedom
Gabriel S. Hudson, Ph.D., a democratic theorist, teaches at George Mason University’s Graduate School of Education and The Schar School of Policy and Government. He is the author of ‘Christodemocracy and the Alternative Democratic Theory of America’s Christian Right.’ (Photo by Oliver Lawrence)

In the spring of 1962, Jack Woody and other members of the Navajo Nation in California were arrested and charged with possession of peyote. Woody and his co-defendants challenged California’s prohibition of Peyote because the substance’s use was an integral component of practicing the Navajo faith. The case ended when the California Supreme Court agreed and ruled in People v Woody (1964) that California had unconstitutionally violated the religious freedom of the Navajo. That case set a national precedent that has informed religious freedom interpretation ever since. 

When most people think of religious liberty, they typically imagine an uninhibited ability to believe what they want and live accordingly. Even if a religious practice violates other laws, like using peyote, Americans value religious freedom above just about any interest of the state. But most do not believe it includes an obligation to obey their employer’s or pharmacist’s religion. That’s because, for the entire history of the First Amendment, freedom of religion has applied to citizens individually. One’s religion governed one’s life only and was non-transferable to customers, clients, or patients.

Attorney General Jeff Sessions’ new Religious Liberty Task Force, however, imagines religious liberty quite differently. At a summit introducing the Task Force, Sessions conflated legitimate impediments to religious liberty—such as mosque burnings—with prohibitions against discrimination toward LGBTQ people. Implying a sinister force is actively working to take away people’s religious liberties, Sessions errantly characterized a fight for equal treatment as a threat to personal liberty.

Like many of President Trump’s other supporters, Sessions believes that an employer denying healthcare or a business owner denying service can be a necessary component of religious liberty. They are not. The US Constitution, in fact, makes that distinction quite clear.

Constitutionally, religious freedom is divided into two clauses. 

The first clause of the First Amendment is the Establishment Clause. It prohibits the US government from recognizing an official religion or giving favoritism to any religion. The second clause is the Free Exercise clause. It prohibits the government from requiring or prohibiting any religious observance. It is from the Free Exercise Clause that most people understand their individual right to practice their faith. Most, however, do not realize that the clause is intended as a negative right – a right NOT to have to do something. Under the Free Exercise Clause, citizens are not compelled to give to any church, attend any religious service, or profess any belief.

The Free Exercise Clause guarantees the right of LGBTQ people not to follow the religious proscriptions of the majority faith.

The correct interpretation of scripture, however relevant to an individual, has zero bearing on non-adherents’ legal status. In other words, it protects the minority from tyranny of the majority. The majority may disapprove, but a minority – even a minority of one – retains constitutional protections. Historically, LGBTQ people have been the minority in need of protection. But, as cultural attitudes continue to shift, those still opposed to LGBT rights are feeling the pinch of a loss of status.

Sessions’ Task Force is not really fighting a loss of religious freedom but a loss of Christian privilege. In recent decades, the United States has seen a steady decline in its percentage of white Christians with a steady increase of every other demographic. Since the 1970s, the fastest growing religious group in America has been the unaffiliated. While many have sensed these incremental changes for some time, the US reached a cultural tipping point recently. The Public Religion Research Institute reported earlier this year that America was no longer a majority white Christian nation. Only 43% of Americans now identify as white and Christian and only 30% identify as white and Protestant.

Christians who see these incremental populations shifts falsely equate a loss of majority status with a loss of freedom. The same fear of shifting demographics that animates the Trump Administration’s immigration policies also informs this new task force. This loss of privilege helps explain why Trump remains so popular among Christian conservatives despite violating every attribute they championed for decades. He attacks the people they see as supplanting them: Muslims, non-white immigrants, and LGBT people. 

But Sessions’ Task Force likely violates the First Amendment and endangers authentic free exercise. Misconstruing religious freedom as a right to discriminate or right to deny healthcare enshrines legal penalties for non-Christians. Likewise, the Task Force probably violates the Establishment Clause by showing favoritism to Christianity. It is unlikely that Sessions would champion the right of a Muslim employer to require his female employees to wear hijabs. The Task Force instead champions the right of a particular type of Christian to remain culturally and politically dominant.

The recharacterization of LGBT rights as necessarily attacks on religious freedom is rhetorically brilliant but Constitutionally bankrupt. LGBT people and their allies must avoid this framing trap. Sessions pits LGBT rights against religious freedom in a zero-sum game in which any advance in LGBT rights is automatically a loss of religious freedom, hoping Americans will favor the latter.

It is incumbent upon advocates of equality to push back against the framing. The same freedom that allows a Catholic to take communion protects a Navajo using peyote. The same freedom that allows a conservative Protestant to believe God condemns homosexuality protects my freedom to live as an out and proud gay man. No one is attacking conservative Christians’ religious freedom. We’re attacking inequality. We’re attacking privilege. We’re fighting discrimination. To protect our rights AND theirs, we have to make that distinction loud and clear.

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