Former USPS worker on his Supreme Court victory in religious liberty case
Former USPS employee Gerald Groff and First Liberty Institute general counsel Hiram Sasser on the Supreme Court ruling in favor of employees who choose to take Sunday off for religious reasons.
While Americans enjoy remarkable freedom to exercise their faith, courts and legislators are struggling with how to balance competing rights claims. Politicians and the media regularly offer histrionic sound-bites that feed into the culture wars and promote a false dichotomy between protecting religious liberty on the one hand and guaranteeing equality and other fundamental rights on the other.
It is not uncommon to hear the argument that according religion any kind of recognition or special treatment is nothing short of an unconstitutional establishment and/or a form of discrimination against the non-religious.
These arguments have practical ramifications on the daily lives of millions, affecting everything from school choice and voucher programs, to regulations on faith-based foster care and adoption services, to contraception/abortion mandates, to the business decisions of closely held corporations. The place of religion in public life will also undoubtedly continue to play a large role in future elections.
The religious community must speak in a language that even secularists can understand. (iStock)
Some arguments cannot be resolved and are destined to remain intractably partisan right-left issues. The protection of religion however, enshrined in the dual religion clauses of our First Amendment (no establishment and free exercise), should not be one of them.
In order to move past the current tensions, the leaders of the broader faith community must reframe the argument and reset the national conversation – because if not them, then who? From a legal perspective, this is a two-step process involving both establishment and free exercise concerns.
First, the religious community must focus on speaking in a language that everyone can understand – even those secularists who disagree with our assumptions.
As an Orthodox rabbi, I absolutely believe that religion is important for its own sake. But instead of trying to explain why religion is special (status), an impossible theological feat in a post-religious world, both our legal and our public relations efforts should focus on how religion is and has been demonstrably beneficial to everyone, including the non-religious (its use).
If religion is beneficial to society at large, then treating it benevolently is nothing more than a neutral acknowledgment and appreciation for a particular medium that consistently and demonstrably provides a host of secular goods on a neutral and non-discriminatory basis. Given that premise, government support for religious education would be much less controversial, a permissible and practical way of supporting activities that lead to public benefit.
Thankfully, the research here is undeniably telling. Numerous studies have confirmed that religious Americans are generally more altruistic neighbors and more conscientious citizens than their non-religious counterparts.
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As Harvard (an institution originally founded as a Christian seminary I might add) sociologist Robert Putnam describes in his masterpiece "American Grace" (which was based on two of the most comprehensive surveys ever conducted on religion and public life in America), holding constant for all other demographic factors, involvement in religious organizations and religious networks remains one of the strongest predictors of philanthropic generosity, civic involvement, and community leadership that we have available.
Demonstrably then, religion does provide certain quantifiable secular goods for the broader American society, which is why it can sometimes be granted special treatment without violating anti-establishment norms.
Second, from a free exercise perspective, we must have faith in and make use of the existing legal system. It has been nine years since the Supreme Court released its decision in Sebelius v. Hobby Lobby, which held that for-profit corporations can refuse to provide certain contraceptive services in health plans offered to employees, on the grounds that doing so would violate the owners’ particular Christian beliefs.
If you read most of the breathless articles published in the months leading up to the decision, you would have gotten the sense that a win for Hobby Lobby would allow religious groups a pass to do anything they want, and turn America into a theocracy. Well, Hobby Lobby did win, and American democracy is doing just fine.
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That's because strict scrutiny as a framework for dealing with competing rights claims actually works, and its narrow, case-specific application does not feed into culture war dynamics.
Under federal law, if there is a sincerely held religious belief at play, and there is a law that would create a substantial burden on that belief, the court asks if the government has a compelling interest in enforcing that law to the detriment of said belief – or (as in the case of Hobby Lobby) if there is perhaps some other way to make sure that everyone can get what it is that they need.
All Hobby Lobby proved was that even in the most contentious cases there often is another way. Politicians don’t need to invent a new balancing test for religious liberty; we have one and it works.
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And so, if the religious community wishes to succeed in winning minds and not just cases (and even after a win, to avoid the prospect of being back before the court every time its ideological leaning shifts), we must make it clear that there is no "us" versus "them" here. All that framework does is further divide our fractured society by creating "winners" and "losers," instead of clarifying what it means to live in, and appreciate, diversity.
Respect for religious beliefs can be, should be, and has been effectively balanced with other rights. And the exercise of religion is a good thing, even at the secular level. It should be appreciated for God’s sake – but also, demonstrably for everyone else’s sake too.
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