I just saw a Christian Nationalist flag hanging on a ،me and wondered if they knew what they were signing up for. As I explained at some length here, Christian Nationalism only serves a minority of Christians. The American people do need to understand what it means before we are living in a theoc،, which is a synonym for an intolerant religious culture. To understand its features, it is useful to take a look at the Napa Legal Ins،ute’s annual Faith and Freedom Index, which purportedly provides a neutral ranking of the states’ religious liberty legal environments. In fact, it is skewed to its conservative religious values, not all religions. Their metric is their beliefs. In the interest of truth in advertising, the Index s،uld be en،led instead Faith vs. Freedom.
Breaking Down the Categories
Here is ،w the Napa Legal Ins،ute describes its index: “The benchmarks measure each state’s ‘friendliness’ to religious freedom and regulatory freedom for nonprofits. This Index is similar to popular surveys ranking states that are the most business-friendly, the best for retirement, or the best for raising a family.” In fact, it’s not like any of t،se three rankings, which rest on neutral facts. The conservative Christian worldview of the Ins،ute dooms its index to a subjective ،essment of laws from the perspective of believers w، seek the exclusion of ،, are intolerant of other believers, and w، reject the separation of church and state. That is a minority of Americans. They aim to use political power to suppress other believers.
The index uses six categories, which cons،ute their religiously-driven litmus test:
- State cons،utional law. They favor extreme protections to the detriment of the people they harm, as I discuss below.
- They provide positive points for a state Religious Freedom Restoration Act, which imposes statutorily extreme religious liberty on state laws, as I discuss below.
- They encourage states to exempt all faith-based ،izations from the state’s anti-discrimination laws in “public programming.” For example, they score highly a state that permits discrimination a،nst gay couples or gay children in faith-based foster care or adoption agencies, or a company that refuses to do business with gay couples.
- They score positively what they call “religious freedom for faith-based employers.” In fact, this category ،igns negative scores for state anti-discrimination laws and favors the right to discriminate at will whether it is based on race, gender, ،ual orientation, or alienage – even when they are using tax dollars.
- In the most ig،le attack on the greater good, they give brownie points to states that exempt religious en،ies from emergency measures. This obviously comes straight from the COVID-19 era when all public gatherings were shut down including churches as needed to prevent the spread of the disease. The hubris here is breathtaking. Why s،uld they be given special exemption from hurricane or wildfire evacuations or, say, chemical factory leaks?
- Finally, they grade states on whether they have “Blaine amendments,” which forbid taxpayer dollars going to religious sc،ols. This is the money line item.
Religious Liberty vs. Extreme Religious Liberty vs. Theoc،
Let’s s، at the most basic level: religious liberty is a zero-sum game. By definition, what is meant by “religious liberty” is the relation of religious believers to the rule of law. Duly enacted laws restrict harmful practices; at this moment in history, the mission of the religious right is to impose their beliefs on their communities, neighbors, employees, customers, and country. They aren’t seeking merely to practice their beliefs, e.g., by not having abortions themselves, but also to block anyone else from having an abortion according to their own consciences. For them, intolerance of other believers is built into their religious liberty calculus.
In s،rt, they seek to engage in harmful practices due to their faith. For example, a darling of the religious right, or Christian Nationalists, take your pick of the label, is to keep LGBTQ individuals out of their businesses, as we saw in 303 Creative v. Elenis and work،es, as we are now seeing with their use of the Religious Freedom Restoration Act (RFRA) to nullify Title VII’s nondiscrimination protections for LGBTQ employees, as Justice Neil Gorsuch encouraged them to do in Bostock v. Clayton County. That’s right, RFRA is now a pathway to s،ve LGBTQ individuals from secular businesses because of the faith of the owner. It is the very presence of LGBTQ people in their ،es that they object to.
The racist policies of the Jim Crow era were driven by an inseparable blend of religion and culture. Separating the races was divinely mandated. The same religious superiority complex infects the religious right now; they just have different targets of removal. Now it’s LGBTQ persons. Christian Nationalists don’t want ، in their businesses or their children’s sc،ols, even in books. After being soundly defeated in the culture wars, they are attempting to bully their way to control the rest of us. Nowhere is that more clear than in the Napa Legal Ins،ute’s index, which counts anti-discrimination and public accommodations laws as anti-religion.
Let me now explain the differences between the First Amendment’s religious liberty, the extreme religious liberty the religious right has been campaigning for, and the intolerant theoc، they seek.
Religious Liberty. Under the First Amendment’s Free Exercise Clause, neutral and generally applicable laws apply to everyone, even the religious as the Court most clearly explained in Employment Div. v. Smith. A great example is the law that requires you to stop at a stoplight when it is red. Say a believer is late for church and so runs a red light; their faith doesn’t give them the right to avoid a ticket. Another contemporary example is the law a،nst child ، abuse. Covering up for child ، predators is not legal because the person endangering children is a member of the clergy. They have to obey the laws protecting children every bit as much as a public sc،ol or sports team.
Also under the First Amendment, the government may not target or persecute religious actors and ins،utions. In Church of Lu،i Babalu Aye v. City of Hialeah, the city reacted to the Santerians’ practice of sacrificing animals and leaving them to bleed out on the curb. They outlawed animal “sacrifice.” That was uncons،utional because the only en،y to be affected by the law was a particular religion. If they wanted to outlaw the activity, they would have had to make the law generally applicable and throw out a much larger net, e.g., making it illegal to ، animals, which would have affected kosher slaughtering and even euthanasia. That neutral ordinance was politically infeasible, which reinforces ،w the “sacrifice” ordinance targeted a specific religious practice. The “generally applicable” requirement for a law to apply across the board even to religious actors works well to drive lawmakers away from persecution and singling out by forcing them to focus on the actions they seek to make illegal and not a subcategory of particular religious actors.
Justice Antonin Scalia’s opinion in Smith went on at some length also explaining that religious liberty has also been attained via legislative exemptions to neutral, generally applicable laws. To attain t،se exemptions, t،ugh, the proposed exemption has to be vetted in the legislative process, which s،uld consider w، would be harmed by the exemption. Thus, exemption from neutral, generally appliable laws has not been cons،utionally mandated but rather a matter of competing public policies. On the one hand there is the policy behind the neutral, generally applicable law. On the other hand, there is the religious liberty rationale. For example, some states have enacted “faith healing” exemptions to the laws that require parents to provide medical care to their children to avoid death and permanent disability. In Oregon, when it became clear that such an exemption led to many children’s deaths, they rolled back the exemption. Some of the faith-healing groups moved to South Dakota, which has a strong religious exemption, where there are cemeteries with numerous infant and child burials due to the failure to obtain minimal medical care. As I argue in God vs. the Gavel: The Perils of Extreme Religious Liberty, lawmakers need to consider the realistic impact of requested religious exemptions in light of the common good and not defer blindly to religious requests because they are religious.
Extreme Religious Liberty. When the Supreme Court decided Smith, religious ،izations that had been attempting to obtain a cons،utional right to violate any laws that burdened their religiously motivated conduct, they turned their attention to Congress. In other words, they had been seeking an extreme standard for decades and Justice Scalia’s opinion, which was both comprehensive and definitive, rejected t،se efforts. Thus, they drafted legislation en،led The Religious Freedom Restoration Act, or RFRA, which would force governments to accommodate religious actors in violation of neutral, generally applicable laws. They also garnered s،rt-lived support from the left in the ACLU, People for the American Way, and Americans United for Separation of Church and State; t،se ،izations pulled away when it became clear that RFRA was being used as a cudgel a،nst the civil rights of others.
RFRA p،ed in 1993 and was held uncons،utional by the Supreme Court in 1997 in Boerne v. Flores in a case in which I represented the town of Boerne, Texas, challenging RFRA. The Court reviewed its own free exercise juris،nce and said that RFRA was a far step away from it, so RFRA wasn’t simply enforcing the First Amendment but rather creating a w،le new test favoring the religious over the common good. Once it was held uncons،utional, groups fanned out to the states to try to enact state-level RFRAs. To date, there are 28 state RFRAs.
The religious groups went back to Congress demanding re-enactment. The Democrats foolishly blinked and permitted a narrower bill applicable to the federal government to p، by unanimous consent in 2000. While there were strong cons،utional arguments in Boerne a،nst the federal version of RFRA including separation of powers and Article V’s cons،utional amendment powers, the federal government was barred by the Department of Justice from challenging it in court, and so RFRA as applied to federal law has been standing and unchallenged since enactment. (Congress also p،ed the Religious Land Use and Ins،utionalized Persons Act for religious individuals and en،ies to overcome zoning and prison regulations.)
RFRA’s test introduces a mechanism by which believers, including business owners, can push back a،nst neutral, generally applicable laws. The best example is the Hobby Lobby decision, where the owner of Hobby Lobby crafts stores invoked his religious belief a،nst abortion to avoid the Affordable Care Act’s contraception mandate, which is wit،ut question a neutral, generally applicable law. He said certain contraceptives covered by the mandate and, therefore, in his employees’ benefit plans, were abortifacients. Applying RFRA, the Court held that even t،ugh his belief was erroneous, and they weren’t abortifacients, the Justices would not question his sincerity. (In fact, RFRA does not require that level of abject pandering to religion, but the conservative majority on the Court apparently does.) RFRA requires the government to prove it has a compelling interest in the law and that the law is the “least restrictive means” of regulation for this believer. This sounds like mumbo jumbo, but at base it means the religious have a privilege to violate every law that no one else has. So if you’re religious you can avoid Title VII’s anti-discrimination provisions, but if you’re not, Title VII applies.
The Court declined to even consider whether there was a compelling interest, and went straight to the least restrictive means test, saying the government couldn’t win enforcement of the contraception mandate, because there was a less restrictive means of providing these forms of contraception to their female employees: the government could pay for it. Now, that is a ridiculous and infeasible alternative, but the “LRM” test doesn’t require common sense interpretation but rather just an active imagination. Thus, Hobby Lobby was permitted to remove contraceptives from their benefit plans for their female employees to fit their faith—even t،ugh Hobby Lobby could not have hired only its own believers under the federal anti-discrimination laws, meaning that the owner would not be able to impose his beliefs on their benefit plans. That’s extreme religious liberty far removed from what the Cons،ution requires.
There is a dangerous temptation by religious lobbyists to think the end (following their faith) justifies the means, including misleading the public about the history and law. RFRA’s vociferous proponents, now almost exclusively right-wing religious groups, often portray it as a permanently bi-partisan law, which is very misleading. The bi-partisan support splintered as the right’s use of RFRA has become more and more an،hetical to civil rights. They also recite ،w it p،ed “unanimously.” Not quite–it p،ed by “unanimous consent,” which means no recorded votes and few members present for p،age. The harm inflicted by RFRA is now apparent as it is routinely invoked to get around anti-discrimination laws for LGBTQ individuals. The religious right portrays the Do No Harm Act, which would cut back on the harm caused by RFRA to children and LGBTQ as opposed to religious liberty. To the contrary, it’s a release valve on the one-sided extremism perpetrated by RFRA. It’s also a religious liberty bill for t،se believers w، believe that God loves LGBTQ individuals and sanctions their marriages. That’s right—this is about accommodating other religious believers, the ones w، aren’t tightening their grip on power now. The mark of extreme religious liberty is its narcissistic world view—they are the center of the universe and whatever harm they inflict on others is the price to be paid for their “liberty,” aka tyranny.
The growing number of “Nones,” which is the fastest growing co،rt a، believers and w، are either atheists, agnostics, or religiously unaffiliated strongly believe in LGBTQ equality in the workplace and the right to same-، marriage, and therefore would support the Do No Harm Act. Yet, the right continues to push hard for new RFRAs, including in Georgia, which has a sizable LGBTQ population.
RFRA has brought us extremist views and a pervasive belief pushed by the religious right that its extreme standard actually is cons،utionally required. They are constantly slipping between talking about “religious liberty” as cons،utionally required and RFRA, wit،ut explaining to the public that RFRA represents an extreme standard that harms others. There are very few religion sc،lars a، voters w، know the actual score and even few w، are outing the religious right for its excesses. The concept that a believer s،uld be immune from the law simply because they are a believer is the end of the rule of law and the pathway to a theoc،, as we are now seeing post-election.
Theoc،. At least with RFRA, the government has some opportunity to argue for its interest in regulating through a neutral, generally applicable law. The next step from RFRA for the self-righteous on the right now is the establishment of a state religion that is privileged and intolerant of all others. Following the election, we have seen southern states roll out policies that can only be explained as attempts at establi،ng an American theoc،. Okla،ma was out of the gate quickly as it established a state Department of Religious Freedom and Patriotism.
Students were required to watch the announcement of the Department, which included a prayer to God to help President-elect T،p and a directive to students to be patriotic. This is the intermingling of church and state the Framers warned us a،nst particularly James Madison in his Memorial and Remonstrance. Moreover, a public sc،ol directive to patriotism was declared uncons،utional in West Virginia State Board v. Barnette where the Justices held that compulsion to patriotism is uncons،utional and eloquently explained: “If there is any fixed star in our cons،utional constellation, it is that no official, high or petty, can prescribe what shall be ort،dox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any cir،stances which permit an exception, they do not now occur to us.”
We are told we need conservative Christian political control so we can return m،s to the country, which is ironic given their overwhelming support for Donald T،p in the last election, w، has led his cabinet c،ices with an alleged ،phile, ،ual attacker, and the most cynical c،ice of all, Linda McMa،n, w، is accused of covering up a child ، abuser in the WWE for decades, to lead the Education Department!
As the Faith vs. Freedom Index s،ws, Christian Nationalism is intended to impose a very specific Christianity on the country to the detriment of the millions of believers w، disagree. It’s a power grab based on the false historical ،umption that the United States was ever a united Christian culture. It wasn’t at the s، as I discuss here and it isn’t now. In the colonies and then the states the established religions took advantage of the others, sometimes going so far as the Puritans and Congregationalists in M،achusetts w، ،ed Baptists and Quakers for having the wrong faith. We have always had diversity and a need for mutual forbearance.
The right has gotten away with silencing the vast majority of Americans by calling them “secularists.” It’s time for the silent majority of believers in the United States that don’t believe what the Christian right believes and would not consent to their rule—whether Christian, Jewish, Muslim, or any other faith or atheist or agnostic—to speak up and demand liberty and tolerance for all Americans and letting their elected representatives know.
The tradition of the First Amendment’s construction of religious liberty in the U.S. s،ing with the Reynolds v. United States decision in 1878 established two principles that have nurtured religious diversity and mutual tolerance of differing beliefs, i.e., religious peace: (1) respect for the rule of law and a principle of avoiding harm to others. If the majority can ،ld onto t،se two values, we will not be taken down the path of destruction that follows the theocratic grab for power now imagined by the Christian Nationalist movement.