Interview by Robert Dilday
Twenty-five years is a long time in national public policy life. How is the religious-liberty landscape different than it was 25 years ago?
The religious-liberty landscape is definitely different. In some ways, religious liberty is in rockier territory than it was when I started. In other ways, it’s on more fertile soil. I think we have lost ground when it comes to constitutional protection against the establishment of religion, such as state-sponsored religious exercises and government-funded church ministries and religious education. We have been up and down concerning protections for the free exercise of religion, losing ground as a matter of constitutional interpretation but gaining through legislation supported by the BJC, such as the Religious Freedom Restoration Act in 1993 and the Religious Land Use and Institutionalized Persons Act in 2000.
We continue to be very solid when it comes to the so-called “church autonomy doctrine,” designed to keep government from meddling in the internal affairs of houses of worship and courts from adjudicating internal property and employment controversies. This was reinforced by the U.S. Supreme Court’s unanimous decision in the Hosanna-Tabor case in 2012, approving the “ministerial exception” to the enforcement of anti-discrimination laws. We are growing in our acceptance of the constitutional principle (in Article VI) barring religious tests for public office, both in terms of the letter and spirit of the ban.
Internationally, religious persecution and disrespect for the rights of conscience have grown worse, especially with regard to Christians.
Of all the religious-liberty issues which the BJC has addressed in those years, which do you think was the most significant? And (maybe not the same thing) on which did the BJC have the greatest impact?
The Baptist Joint Committee’s most significant contribution over the past 25 years is the two federal statutes — RFRA and RLUIPA — I just mentioned. The BJC was instrumental in leading and creating broad coalitions to seek restoration of a high level of protection for the free exercise of religion for everyone through RFRA in 1993, and further protections for the rights of prisoners, institutionalized persons and religious organizations seeking relief from unreasonable zoning and land use regulations through RLUIPA in 2000.
In addition, the BJC has been instrumental in figuring out the proper balance of dealing with religion in the public schools: saying “no” to state-sponsored religion and religious exercise and “yes” to voluntary student initiated religious speech and practice, as well as “yes” to objectively teaching about religion in appropriate places in the curriculum.
Who have been some of the inspirations for you during the past 25 years — the ones you’d cite as models of religious-liberty advocacy?
First and foremost, James Dunn [former BJC executive director]. After stepping into his very large shoes, I quickly determined that James’ style was inimitable. But I learned a lot from him about how to express complicated issues simply, and I certainly shared his passion. Buzz Thomas, my predecessor as general counsel, taught me most of everything I learned early on about constitutional law and public policy advocacy on the Hill. I was also inspired by U.S. Representative Chet Edwards from Texas who was the preeminent champion of religious liberty in Congress and, unfortunately, lost his seat in part because of it.
You’ve received degrees in both law and theology. On balance which has been most useful in navigating religious-liberty issues? Forced to choose, which would you advise your (eventual) successor to focus on?
Both my law degree (and 10 years of practice) and my master of divinity degree from Southern Seminary have been invaluable. It’s a near perfect combination of pedigree that informs exactly what I do day in and day out. Our understanding of religious liberty is theologically grounded (a gift from God at creation), but protections for it come through applying and enforcing constitutional principles (the First Amendment’s religion clauses and Article VI).
That said, I think one could do well with either, or neither, a law degree or seminary training. A lifetime in good Baptist Sunday school classes and a lot of reading about the history and interpretation of the first 16 words in the Bill of Rights can put an intelligent and dedicated person in good stead to perform this job. It is mostly about the passion with which one performs it, rather than the academic tickets he or she has punched.
Protecting religious liberty is a challenge for every generation. But do you find it easier or harder than in the past to make the case for religious liberty? And do you see it becoming easier or more difficult in the future?
I think it has gotten harder. The rise of the religious right over the past quarter century — and their well-funded advocacy groups — sometimes makes it difficult to enforce strong Establishment Clause values. But the more recent rise in the strength of the secular left, and their perhaps not-quite-so-well-funded advocacy groups, can sometimes make fighting for the free exercise of religion more difficult. Establishment Clause issues have always divided us. Free Exercise issues — once a rallying point for some agreement — have become more divisive now, too. Sorry to say, I think these trends will continue to be so in the foreseeable future.
Recently you joined the Southern Baptist Convention’s Ethics and Religious Liberty Commission and other groups in protesting action by Houston’s mayor to subpoena pastors’ sermons. Does that signal a diminishing of the theological distinctions among church-state watchdogs?
ERLC President Russell Moore and I have a good working relationship. That does not mean that we always — or even often — agree on theological propositions, or on the proper interpretation and application of the religion clauses. But when we do, such as the no-brainer in Houston, we are happy to work together to amplify our voices.
As foundational as religious liberty is in this country, there have been occasions in its history when other values have trumped it — laws criminalizing polygamy or witholding tax-exempt status for religious schools which practice racial discrimination come to mind. Are there any current religious-liberty issues which you think might be impacted by other strongly held social values?
Yes, that is true. Sometimes government’s accommodations of the exercise of religion visit no harm on others. These are the easy accommodations to make. More difficult are cases where the rights and well-being of third parties, or society generally, are detrimentally affected by the religious accommodation.
Here’s where the courts have to do a balancing act between the free exercise rights of the religious claimant with the rights of those — or of society generally — harmed thereby. Traditionally, we have said that the free-exercise rights must prevail unless government can demonstrate a compelling interest in the health, safety or welfare of others. Then, the balance is struck on the side of the government, but only to the extent that it pursues its compelling interest in the most narrowly tailored fashion.
Perhaps the most visible and contentious current issue related to this balance involves the Hobby Lobby case: whether the religious rights of the shareholders can be imputed to a privately held corporation and whether those rights can then trump the ability of employees to avail themselves to generally available contraception coverage at no cost. Other issues arise in connection with the tension between religious-freedom rights and anti-discrimination laws, particularly with reference to same-sex marriage. Under the “church autonomy doctrine,” houses of worship will not be required to perform marriages with which they disagree. But businesses engaged in commerce on the periphery of the issue (for instance, florists, bakers, photographers, tuxedo provid-ers) who object to same-sex marriages will require the courts to perform this balancing act.
Looking down the pike, what issues do you think will require some close attention by advocates of religious liberty?
The issues I just mentioned will certainly be front-burner issues on the free exercise side of things. With respect to Establishment Clause issues, the Supreme Court is closely divided (5 to 4 or 6 to 3) concerning both religious speech or endorsement cases and government funding of religion cases. The retirement of justices currently in their early 80s and late 70s, and the politics that surround their replacement nominees, may well tip the balance one way or another.