Religious Liberty in a Polarized Age (Emory University Studies in Law and Religion

by Thomas C. Berg

How to heal America’s deep divisions by preserving religious liberty for all  
   
As our political and social landscapes polarize along party lines, religious liberty faces threats from both sides. From antidiscrimination commissions targeting conservative Christians to travel bans punishing Muslims, recent litigation has revealed the selective approach both left and right take when it comes to freedom of religion. But what if religious liberty can help cure our political division?   
  
Drawing on constitutional law, history, and sociology, Thomas C. Berg shows us how reaffirming religious freedom cultivates the good of individuals and society. After explaining the features of polarization and the societal benefits of diverse religious practices, Berg offers practical counsel on balancing religious freedom against other essential values.   
  
Protecting Americans’ ability to live according to their beliefs undergirds a healthy, pluralistic society—and this protection must extend to everyone, not just political allies. Lay readers and legal scholars who are weary of partisan quarreling will find Berg’s case timely and compelling.

Genres: Politics

373 pages, Hardcover

Published July 11, 2023

Reviews

[Robert D. Cornwall · Rating 5 out of 5]

The question of religious liberty or religious freedom is up for debate in the United States. It is part of our political conversation and legal conversation. A number of cases involving important matters of church and state have appeared before the Supreme Court in recent years. It appears that the current court is apt to side with religious claimants. While some of these rulings have been helpful others have troubling consequences. As with many other areas of life, the populace is divided. So how should we understand and respond appropriately to matters in front of us? For those of us who are adherents of a religious tradition, the outcome of these debates and rulings can have an impact on our lives. So how should we proceed?

Thomas Berg has written an important book that explores the many sides of this topic of religious liberty. He is the James L. Oberstar Professor of Law and Public Policy at the University of St. Thomas School of Law in Minnesota. Besides his teaching duties, he has served as an advocate and advisor to numerous groups as they seek redress in the courts. Thus, he brings both scholarly and practical insight to the questions at hand. He is committed to supporting religious freedom, but he also understands the limits. Sometimes there is a fine line between religious freedom and the rights and concerns of those affected by claimants of religious freedom. It should be noted that in any book dealing with current debates, there have been developments that have come about since the manuscript went to the publisher. In this case, he wrote the preface in December 2022. While the Dobbs decision had come down other decisions across the country have taken place since that moment.

Berg covers a lot of ground in "Religious Liberty in a Polarized Age," offering important guidance on matters that range from the intersection of LGBTQ rights and traditionalist religious perspectives to the rights of minority religions. He has pointed words for folks on both the left and right, religious and non-religious. Some of his recommendations will not sit well with some of my friends, but perhaps the need for balance here is key to removing the polarization so that we can move forward in respecting the rights and needs of all. As one might expect much of the focus of the book centers on the Supreme Court. Berg points out that the "bitterness of religious-liberty disputes arises from, but also feeds into, the overall bitter polarization of our society" (p. 4).

Berg divides his book into three parts, with the two chapters in Part 1 providing an overview of "the problem of polarization and religious liberty." He begins with a chapter laying out the current situation facing us in a "Polarized America." This provides the setting for what is to come by acknowledging the fact of polarization. From there, in Chapter 2, he moves more directly to "Polarization on Religious-Liberty Issues." He focuses on three sets of religious-liberty issues. First is discrimination against Muslim individuals and organizations supported by conservative Christians. Secondly, there is the opposition of progressives to meaningful protections for traditionalist religious organizations when it comes to conflicts between LGBTQ nondiscrimination laws. Finally, there are conflicts over religious meetings during the Covid pandemic. He notes that the pattern of religious liberty disputes has not only contributed to the overall sorting out of political positions, but they have aggravated them, whereas religious liberty is supposed to calm such concerns.

Having laid out the basic areas of concern in Part 1, in Part 2 Berg offers arguments for religious freedom. In the three chapters in this section, Berg seeks to lay out arguments for protecting the religious liberty of all Americans. He begins in chapter 3 by arguing for recognition of how religion is, for many a pervasive element in their personal identity. Therefore, if their ability to live out their faith is curtailed that causes them harm. That is an important reason why the Founders sought to protect religious liberty. Chapter 4 offers an argument as to why protecting religious freedom can help reduce fear, alienation, and division in American society. The final chapter in Part 2 argues for the role of religious involvement and the freedom to serve and contribute to the common good. Here, Berg emphasizes the contributions made by people of faith and faith-based institutions. While he lays out the ways in which religious communities can and do contribute to the common good, he also acknowledges the damage done when such groups fail to contribute to the common good. Here he cautions especially white evangelicals. So the point here is that we should treat religious freedom as the foundation for the freedom to serve.

Part 3 brings the book to a close. The focus here is "Principles of Religious Freedom." This section contains four chapters that offer ways in which "strong religious freedom for all" can be translated into concrete principles of law. The first chapter in this section offers a primer on the Constitution's free-exercise principles. These principles, according to Berg, to fulfill their objective, must, first of all, provide a standard of protection of religious liberty that applies to all faiths. In other words, one cannot claim freedom for one's own beliefs and practices and then seek to deny them to others (as we have seen in white evangelicals opposing the rights of Muslims). Second, laws have to protect religious liberty from all sources of threat. Finally, "Religious freedom must have boundaries set by the interests of others and of society. Without such boundaries, religious-freedom protections lose credibility and ultimately, staying power" (p. 188). Examples can be nondiscrimination laws for LGBTQ persons that offer exemptions for religious persons/communities. Here there is a fine line that is difficult to maintain, as many of my LGBTQ friends have discovered. Having laid out general principles in Chapter 6, Berg moves to protecting Minority faith communities, with the primary focus being attempted restrictions on Muslims. Here he argues that it is in the best interests of conservative Christians to support the religious freedom of Muslims and other religious minorities. If they argue against such freedoms, they then undermine their own religious liberty claims. He addresses religious progressives like me, suggesting that in our support for religious minorities, it is wise to recognize that conservative Christians can at times be a vulnerable minority. Examples include colleges and universities barring Christian groups from meeting on university property, while other nonreligious groups are provided such locations. In this chapter, he addresses a variety of topics from beards for Muslims to the use of peyote in Native American rituals to the provision of appropriate foods in prison for persons with religiously restrictive diets. In Chapter 8, Berg addresses the need to balance LGBTQ rights and religious freedom. This is a challenging chapter. I understand the need for exceptions for religious schools and other nonprofits along with religious communities. While challenges to exceptions often use racial/ethnic discrimination laws as a parallel, Berg suggests a better analogy is religious freedom. He addresses the concern that many have after the Dobbs decision on abortion, that similar arguments could be used to undermine Oberkfell. He addresses these and suggests that while the fear is there, it is different from Dobbs. Since we're seeing attacks on the rights of LGBTQ folks, especially transgender, this chapter is going to be a challenge. Whether his solutions are acceptable will have to be worked out. He argues for protecting the rights of both sides. It's not easy, but likely necessary at this moment. But by providing appropriate religious exemptions, some of the polarization might be calmed. Finally, in chapter 9, Berg addresses government religious speech ranging from prayers at civic and legislative events and school prayers. As one who has prayed/given invocation at civic events, I am implicated in this conversation. While the SCOTUS has affirmed the propriety of prayers in legislative settings, some rulings of which Berg thinks might go too far, the issue of school prayers remains largely unresolved. The question here revolves around the challenge of government endorsement of religion, especially when that endorsement often involves a majority faith (Christianity). Here the concern is one of coercion and how we avoid it.

As Berg brings the book to a conclusion, a book that by and large I find to be extremely insightful and helpful, he notes the ironies involved in the debate over the protection of religious freedom. One irony has to do with evangelical claims that Muslims are threats to society and have sought restrictions on Muslim practices, and travel, along with calling for surveillance of Muslim communities, when the same concerns leveled at Muslims by evangelicals are those offered by Progressives, who claim that religious conservativism is nothing more than a religious covering of a bigoted political movement. The divisive issues still on the table concern abortion and what happens after Dobbs. Here again, the issue is complicated, especially since religious communities are not of one mind. Conservative Christians might argue for the need to protect the life of the unborn, even at the risk to the mother, while Jews would argue for protecting the life of the mother. So whose religious rights are at risk?

Finding a path forward that will bring a sense of calm will not be easy, though the example of an effort in Utah to protect LGTQ rights and those of religiously conservative citizens might be one possible example. He believes that "a commitment to religious freedom can help in these solutions if that commitment is strong, treats all faith evenhandedly, and remains mindful of other interests. It's not easy, but will be necessary if our country is to avoid dividing into warring factions. While I did struggle with the chapter on LGBTQ concerns, overall I believe this will prove to be an important contribution to a needed conversation that can lead us beyond the current polarization.

[Tyler · Rating 3 out of 5]

I learned a lot from this book. The author is obviously fairly liberal, but I felt like he was trying to give a fair expression of both conservative and progressive views on several conflicted subjects around religious freedom and LGBTQ rights, etc. I learned a lot about both religious liberty and polarization and I thought the author made some good suggestions for trying to both reduce polarization and improve religious freedom while balancing it with other interests.

There were a few quirks of the author's writing I didn't like, such as some redundancy. He would say, "I'm going to say this." Then "This is what I'm saying." Then later "I said this." His language could also get quite technical, legal, and academic. Some parts were slow reading. But overall this book was a valuable addition to my self-education on religious freedom and I'm glad I read it. But this book is not a good introduction for beginners.

[Lynn Ruark · Rating 5 out of 5]

easy to read and informative.

While it was written by an attorney, it was very understandable for the lay person. The subject was covered well.