In June of 2010, the Supreme Court ruled in a 5-to-4 decision that Hastings College of the Law in San Francisco did not violate the First Amendment when it de-recognized the campus chapter of the Christian Legal Society for its policy of requiring leaders and voting members of the group to affirm orthodox Christian beliefs and practices, including a prohibition on “sexual conduct outside of marriage between a man and a woman.”
Since that ruling, Christian student groups across the country have faced increased scrutiny and, in a variety of cases, have been de-recognized as well. There are the cases of Tufts University, Rollins College, and Vanderbilt University, for starters. Then, of course, there was California State University, which de-recognized InterVarsity Christian Fellowship chapters at each of its 23 campuses throughout the state in 2014 (before reversing course the following year). UNC Chapel Hill history professor Molly Worthen described these cases as examples of “the contradictions and ambiguities of liberal ideology,” for which the values of tolerance and diversity have some obvious (if awkward) limits.
Now, before my more liberal friends jump ship, let me show my cards. I believe that nondiscrimination laws are essential to the flourishing of a pluralistic, diverse nation like ours. Those who have historically been subject to discrimination, abuse, and various forms of injustice in our country should enjoy legal protection and their rights should be respected. I also believe that the guarantees outlined in the First Amendment – including the “free exercise” of religion as well as the freedoms of speech, press, and assembly – are equally foundational, not just for Christians like me but for people of all faiths and none.
What these cases of de-recognition reveal – along with related cases involving humanitarian organizations, healthcare providers, institutions of higher learning, and even some for-profit businesses – is that when it comes to respecting both nondiscrimination laws and the First Amendment, some nuanced thinking is in order.
That’s precisely what Stanley W. Carlson-Thies and the late Stephen V. Monsma deliver in their urgent (but refreshingly not alarmist) book Free to Serve: Protecting the Religious Freedom of Faith-Based Organizations. “Faith-based organizations are facing – and will increasingly face – threats to their ability to freely follow their deeply held religious convictions,” they write in the book’s opening pages. “The threats are real, but how we as a society finally resolve these threats is yet to be determined.”
Monsma and Carlson-Thies don’t shy away from their Christian convictions, but they make clear that their goal is “not to privilege our own tradition or its beliefs.” Rather, they advocate a vision for a society that “acknowledges and respects the wide diversity of religious and nonreligious belief systems, perspectives, and organizations. None is favored; none is disfavored. This is where we take our stand.”
They are also quick to point out that despite the usual tenor of public debates about the role of religion in public life, this should not be seen as a zero-sum game, since “the goals of those who are advocating policies harmful to the religious freedom of faith-based organizations can largely be met while also protecting the religious freedom of faith-based organizations.”
One important theme throughout the book is the idea that “freedom of religion” is about much more than “freedom of worship.” Being free to practice my Christian faith certainly includes my ability to drive to 5811 N. 20th Street in Phoenix each Sunday morning to participate in a worship service. But as Christians throughout time and space have attested by their stated convictions as well as their actions, gathering for worship isn’t the sum total of what it means to follow Jesus. We are also called, for example, “to visit orphans and widows in their affliction” (James 1:27), a vital expression of our faith that will rarely happen within the four walls – or, for that matter, the formal legal structure – of a church. Yet such acts of mercy, on an individual basis and by organizations formed for that purpose, are just as authentically Christian as singing a hymn.
The arguments for religious freedom throughout the book are rooted in the philosophy of principled pluralism, one of the central concerns of the Center for Public Justice, a DC-based think tank with which both authors have been affiliated. Principled pluralism “rejects both government-enforced secularism and any kind of theocracy,” they write. “Principled pluralism simply asks us to agree to respect each other’s convictions not only in private life but also in public life. Just as we ask for freedom to live our lives according to our convictions, we believe others with different convictions should be free to live their lives according to their convictions.”
A charitable organization founded by Muslims to provide care to the poor should be free, if it chooses, to only hire Muslims, and I shouldn’t expect to sue on the basis of discrimination when I am not hired to lead its work. An environmental organization should be free to require employees to share its core mission, while declining to hire those who believe climate change is a hoax. And an LGBT group on a college campus should be free to restrict membership to those who are “open and affirming,” just as a College Democrats chapter should be free to decline leadership positions, as well as membership, to those who enthusiastically support the other party.
If I’m going to cry foul when my and our First Amendment rights are threatened, it is my responsibility to speak up when anyone else’s rights are under threat as well.
Despite these commonsense assertions, some limits do exist (as they should) on the religious freedom of organizations; the authors identify three crucial ones. First, a faith-based organization cannot claim religious protection for acts of violence, or for planning or encouraging such acts. Second, protections do not include the activities and beliefs of organizations, like the Ku Klux Klan, that are rooted in “blind prejudice” and demonstrate a clear intent to repress others. Finally, to be protected, a faith-based organization’s religiously based beliefs and practices must be well-grounded and sincerely held.
The authors anticipate and address a number of objections to their proposal – including questions about protections for nonprofits that receive federal funding – but for the sake of brevity I won’t rehash all of them here. Instead, I’d encourage you to read and consider their arguments for yourself. This isn’t a perfect book (it’s needlessly repetitive in places), but it’s the best one I’ve found on the topic, and I commend it to believers and skeptics alike.
Clearly, we must find a way to uphold nondiscrimination laws without wiping away the rights guaranteed under the First Amendment. On that point, when we find allies in unexpected places – as we undoubtedly will – we’d do well to lock arms every chance we can get. This is not the petty concern of a few religious nuts. Rather, it’s about protecting the rights of our neighbors and of future generations to enjoy a life free from religious and political coercion. As Monsma and Carlson-Thies remind us, our concern isn’t narrowly self-serving; what is at stake is the very possibility of serving the common good.