For Christians, the rule should be something like this: Protect other people’s religious liberty as you would like your religious liberty to be protected.
Many believers will celebrate today because the Supreme Court ruled in Fulton v. Philadelphia that Catholic Social Services in Philadelphia should be able to continue operating according to its religious principles without getting its contract canceled by the city. That will be hailed as a victory, and it should.
But the freedom of those at a Catholic foster care agency to do their work as committed Catholics wouldn’t have been so precarious if not for a Supreme Court decision from more than 30 years ago—one that upended the status quo of religious freedom law in the United States.
There is lots of data that shows that Christians are becoming more marginal in the US. In the years ahead, it will be important to defend religious liberty legally. But strategically—and more importantly, morally—we need to do that by defending religious liberty for everyone.
That’s not what happened in Employment Division v. Smith, the critical 1990 ruling that set the precedent leading to challenges for Catholic Social Services in Philadelphia. In Smith, the Supreme Court made it much easier for the government to justify actions burdening religious free exercise. Officials were not obligated to accommodate religious practice. In fact, they could make it impossible for minority groups to be faithful to their beliefs and call it “just” and “fair.”
To understand this, let’s go back to 1963. A Seventh-day Adventist named Adell Sherbert was denied unemployment benefits after refusing to accept job offers that would have required her to work Saturday, her tradition’s required day of rest. The Supreme ruled that she should get benefits, and not getting them was an infringement of her religious rights.
The court explained that the government would not always be able to accommodate every minority belief, but it shouldn’t be allowed to make it harder for someone to practice their faith unless there was a really good reason. The key phrase here was “compelling interest.” Further, the court said that the government had to find the “least restrictive means” to accomplish the legitimate goal. That means government must have to try, at least, to accommodate religious practices. The starting place, so to speak, would be to see if you could make it work.
Nearly 30 years later, the court heard another case involving a member of a religious minority who was denied unemployment. This time, it was a member of the Native American Church named Al Smith, who was fired following a positive test for peyote, a hallucinogenic drug central to his church’s religious practice.
According to one attorney I spoke with years ago, advocates for religious liberty were confident the court would use Sherbert’s compelling interest framework and rule for Smith; there was little activity among Christians defending his legal claim. But it’s also possible that Christians weren’t especially interested in rushing to the defense of drug use, or allying with religious practices situated well outside the cultural mainstream.
And then the decision was announced: Antonin Scalia, a stalwart, Reagan-appointed conservative, wrote an opinion shredding the court’s precedent in Sherbert. He declared that so long as a law is neutral and “generally applicable,” states are not required to grant exemptions for religious convictions. That kind of assumption of accommodation, Scalia memorably wrote, would permit a man “to become a law unto himself.” He said that, “To adopt a true ‘compelling interest’ requirement for laws that affect religious practice would lead towards anarchy.”
Real and robust religious pluralism, in other words, would beget chaos. It’s no accident that the city of Philadelphia, which doesn’t want to accommodate the Catholic agency’s unpopular beliefs about marriage and family, appealed to Scalia’s ruling in Employment Division v. Smith.
The Smith ruling was bad for religious freedom. It deferred to the government when laws burdened people’s religious beliefs, transforming a First Amendment right into a privilege.
Scalia’s majority opinion shocked advocates for religious freedom and prompted a bipartisan legislative rebuke from Congress less than three years later in the form of the Religious Freedom Restoration Act (RFRA). More than two dozen states passed similar laws protecting religious freedom in some of the reddest and bluest states, such as Alabama, Hawaii, Idaho, Illinois, Texas, and Washington.
The specter of Smith has nonetheless haunted every freedom of religion conflict in America. Thankfully, the court’s ruling in Fulton v. City of Philadelphia—along with Burwell v. Hobby Lobby, several opinions related to religious services during the coronavirus pandemic, and recent decisions to defer to places of worship in employment matter (Hosanna-Tabor v. EEOC) and provide for the rights of religious inmates (Holt v. Hobbs)—suggests that court may soon be ready to abandon Smith. Perhaps we can finally return to a more faith-friendly standard of “compelling interest.”
Assuming this happens, Christians should recognize the importance of supporting pluralism and coming to the defense of religious minorities. This does not mean embracing idolatry or equivocating on matters of primary importance. But it does require us to extend to others the legal protections we want for ourselves.
Support for religious freedom has become increasingly polarized in recent years. One recent study showed that people’s support for religious rights depends on who is being protected. It has become especially contentious in conflicts between religious practices and LGBT rights.
To a certain extent, these conflicts are unavoidable in the aftermath of Obergefell v. Hodges, Masterpiece Cakeshop v. Colorado Civil Rights, and Bostock v. Clayton County. But some advocates for LGBT equality in American society are eager to follow Scalia’s lead and say that religious accommodations will lead to anarchy. The proposed Equality Act, for example, prohibits people from taking refuge under RFRA if their religious beliefs result in discrimination against LGBT people.
Pluralism, however, can only persist if we choose not to see every conflict as a zero-sum choice, where one side has to lose in order for the other to win. Society can flourish, without all making war against all, if we place a priority on accommodation and attempting to live at peace with our neighbors. Reasonable measures can be taken to protect religious freedom and strengthen civil rights for LGBT Americans.
Returning to the pre-Smith compelling interest framework is one way to do this—and strategically, it is a way to safeguard the right to religious freedom in the years to come. The sooner Christians show they are committed to religious freedom for everyone, the better. That’s not only wise—it’s right, as religious liberty attorneys Luke Goodrich, Asma Uddin, and Southern Baptist ethics professor Andrew Walker have all recently argued.
If we want to show our fellow citizens that we’re serious about strengthening religious freedom, we have to actually be serious about it.
Supreme Court decisions matter. Abandoning Smith’s “generally applicable” framework and returning to Sherbert’s “compelling interest” standard will restore an accurate vision of religious freedom under the Constitution.
But this must accompany Christians embracing religious freedom for everybody, not just for our communities. When religious minorities win, Christians win, too. It’s past time we understood that.
Daniel Bennett is associate professor of political science at John Brown University. He is also assistant director of the Center for Faith and Flourishing and is president of Christians in Political Science.
Speaking Out is Christianity Today’s guest opinion column and (unlike an editorial) does not necessarily represent the opinion of the magazine.