Religious Freedom and the Art of the Next Best

Internally Displaced Person

In my previous two columns on the topic, I surveyed the way religious freedom has been defined by the courts, especially the Supreme Court. In the first part, I told readers that “there is little, if anything, in the period immediately surrounding the writing and ratification of the Constitution that provides guidance as to how competing interests” involved in cases such as that of Barronelle Stutzman should be adjudicated. In the second part, I said, “There’s scant evidence that, legally speaking, religious freedom, as we define that expression, is the ‘first freedom.’”

As the author of the Epistle to the Hebrews might put it, the main point of what I have said is this: There is little precedent, historic or legal, for what we are asking for when we say “religious freedom”—an individual right to not comply with generally applicable laws on the basis of your personal religious scruples.

Realistically, the best we can hope for is for the overturning of Employment Division v. Smith and the restoration of what is known as the “Sherbert Test,” in which a “substantial burden” on a person’s free exercise of his or her religion could only be justified by a “compelling governmental interest,” implemented in a “narrowly tailored” fashion. (Later, “narrowly tailored” was changed to “least restrictive means.”)

In this best-of-all-probable-worlds, cases like those of Barronelle Stutzman would be decided on a case-by-case basis with no guarantee that people like Mrs. Stutzman would prevail, even in the Supreme Court of conservative activists’ dreams. While this court might sympathize with her plight, they would, in all likelihood, struggle to articulate a rationale that wouldn’t turn every American into a law unto himself.

If I’m correct, where does that leave us? In state and local legislatures, looking to cut deals that protect religious freedom as much as is politically feasible.

One example of such a deal is the so-called “Utah Compromise.” Like most compromises, it left people on both sides of the LGBT rights/religious freedom debate unsatisfied and unhappy.  The liberal think tank Think Progress called it a “dangerous LGBT Trojan Horse” and denounced its “rather unprecedented ‘religious liberty’ carveouts.” (Please note that the scare quotes were theirs, not mine.)

Much closer to home, the Colson Center is on the record as opposing these kinds of compromises on theological grounds.

So what follows definitely isn’t the opinion of the Colson Center—but, if you would so kind as to indulge me, I want to make a case for considering these kinds of compromises.

First, as Otto von Bismarck famously said, “Politics is the art of the possible, the attainable—the  art of the next best.” Even authoritarian regimes like Putin’s Russia, or Bismarck’s Prussia/Germany for that matter, operate under some constraints, even if only out of fear of revolt. All of this, of course, applies a fortiori to democracies such has ours.

What’s more, what’s possible and/or attainable isn’t fixed. Political scientists and pundits speak of the “Overton Window,” which is defined as “the range of ideas the public will accept.” What is acceptable changes, or “shifts,” as ideas go from “unthinkable” to “popular” and, finally become “policy.” Policy, of course, means politics. As David French explained at National Review, “The window shifts to include different policy options not when ideas change among politicians, but when ideas change in the society that elects them.”

Unsettling case in point: same-sex marriage. As Stephanie Slade of Reason Magazine reminded the folks at the Jesuit Journal America, we went from President Obama opposing same-sex marriage,  to the Supreme Court overturning the Defense of Marriage Act, to that same court making same-sex marriage the law of the land, in only three years. The head-snapping speed of this change was made possible, in significant part, by a Warp 7 shift in the Overton Window on the subject.

That raises an obvious (to me, at least) question: Where is the Window when it comes to religious freedom? If a recent survey by the Public Religion Research Institute (PRRI) is to be believed, the answer is: not where we would like. (While the PRRI is far from a disinterested observer in these kinds of debates, I haven’t seen much, if anything, that casts serious doubt on their methodology.)

Sixty-one percent of those surveyed oppose “allowing a small business owner in their state to refuse to provide products or services to gay or lesbian people, if doing so violates their religious beliefs.” As if to underscore the shift in the Overton Window on the subject, the only group where a majority favored such a refusal was white evangelicals at 50 percent. (Even a majority of Mormons were opposed.)

What the numbers tell us is that we are a minority, and while it’s true that majority opinion doesn’t determine what’s morally right, it does go a long way toward determining what is politically possible and attainable. To put it bluntly, we are playing a weak political hand, one that is unlikely to get stronger anytime soon, if ever, especially given the outsized role played by the media and pop culture in shaping American opinion on the subject. An appreciation of this weakness is part of the impetus behind Rod Dreher’s “Benedict Option.”

Speaking of the Benedict Option, the second thing that these compromises have going for them is that they focus on what should be our primary concern: preserving our institutions. My grandmother, who (like every Puerto Rican woman of her generation) was an aphorism-spouting machine, used to remind us that “el que much abarca, poco aprieta”—literally, “he who covers much, grasps little.” In other words, don’t try to do too much lest you wind up getting nothing done at all.

If I’m right about the state of the law and politics concerning religious freedom, then we may face the difficult decision of what to prioritize: protecting our institutions or protecting what folks have taken to calling “freedom of conscience.” I know that’s not easy to read. It’s not exactly easy to write, either.

This kind of prioritizing is what Mormon leaders did in Utah. (In. Utah.) Understanding what was going on in their own backyard better than people thousands of miles away, they decided to strike a bargain that protected the institutions—churches, schools, universities, etc.—that have served their people well for nearly two centuries.

They certainly didn’t make the deal because they believe in the sanctity of traditional marriage any less than we do. (The data suggests that, if anything, the opposite is true.) And, as the controversy following a 2015 statement concerning the standing of children raised in same-sex unions indicates, the folks in Salt Lake City take a back seat to no one in their rejection of sexual orientation/gender identity (SOGI) orthodoxy.

I think that they acted as they did because they realized that the Overton Window had shifted on the issue of SOGI laws, even in Utah, and that their resources were best employed in attempting to ensure that their church continued to do what it has always done with as little disruption as possible in the post-Obergefell world.

The key word in all of this is “church.” In an increasingly never-mind-post-Christian-we’re-just-plain-hostile culture, the kind of individualistic (idiosyncratic?) faith that has characterized much of American Christianity for much of its history is the proverbial house built upon the sand. Even if things don’t get that bad, what Chuck Colson and Harold Fickett called “The Faith” is only passed down by our institutions, even when we are reluctant to call them “institutions.”

Securing their future must be our priority.

If this sounds like I’m throwing small business owners under the bus, I’m not. I’m only saying that, if the past is any guide, we may have to settle for “next best.” If we reject this kind of compromise we are left with, as I see it, two alternatives.

The first is the kind of victory in the courts that, for the reasons I have previously discussed, is unlikely. The second is to argue that anti-discrimination protections should not be extended on the basis of sexual orientation/gender identity.

Given that, according to the PRRI, seventy percent of Americans, including 60 percent of Republicans, favor such protections, this is not very likely, either. (There are exceptions, of course. Some states, for instance Mississippi and Alabama, are very likely to resist this trend.)

El que mucho abarca, poco aprieta.

For the final time, I’m not describing the ways things should be. I’m describing the way they are. I would love to be wrong. Unfortunately, I don’t think that I am.

Image courtesy of littleny at Thinkstock by Getty Images.

Roberto Rivera is senior fellow at the Chuck Colson Center for Christian Worldview. For nearly 20 years he has been chief writer for the BreakPoint Radio commentary program. His “Internally Displaced Person” is a mostly regular column at His writings have appeared in Touchstone, First Things, and Sojourners. He lives with his son in Alexandria, Virginia.

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  • Creal

    Thanks for your honest comments. There is a very important point, however, that you do not mention here regarding the christian baker that is missed by many people–she did not refuse service until she was asked specifically to bake a cake for a “gay wedding” that has religious and social significance. This is a very important distinction that you and the media especially gloss over. Sorry, but your article appears to me to be throwing small business people (like me) under the bus. Why can’t we have conscience protections for cases like the following: Should an orthodox Jewish butcher be forced to provide pork to his/her customers? Should a gay baker be expected to bake a cake that quoted Bible verses that condemned his/her lifestyle. Should a Muslim artist be forced to print Christian literature that condemned Mohammed? As long as people are generally providing service for all types of people, why can’t these conscience exceptions be tolerated? No compromise solution will be palatable to leftist radicals except to punish all dissenters, but I think reasonable people could agree that it’s not a Pandora’s Box to allow minimal conscience objections.

    • Phoenix1977

      You, like most social and/or religious conservatives, also miss a very important point: same-sex marriage is the law of the land and the law no longer makes a distinction between same-sex weddings and opposite-sex weddings. So if you offer to make wedding cakes you are required to make them for all weddings. Your analogy of the Jewish butcher doesn’t fly because he doesn’t refuse to sell pork to a specific group; he simply doesn’t sell pork. Should the butcher refuse te sell a certain product to a certain group (for example: chicken to muslims) he would be in trouble. If a baker or florist with religious objections to same-sex marriage refuse to sell wedding cakes completely to both same-sex and opposite-sex couples, there would not be a problem. This option was chosen bij Jack Phillips, a baker from Denver, Colorado, even though this decision cost him 40% of his annual income.

      One of the issues in this is there is a lot of bad blood between the LGBT community and religious conservatives. Over the better part of 2 millennia our rights, even the most basic rights like physical integrity or even to live, have been trampled on. And only now, when religious conservatives are confronted with the serious possibility of losing (some of) their rights they demand tolerance and exemptions. Where were your demands when gay men were castrated because they were gay? Where were you when gay women were correctively raped in order to turn them straight? Where was your demand for compassion when gay men were harrassed by the NYPD at the Stonewall Inn? How hard did you protest when when people like Harvey Milk, Gianni Versace and Matthew Shepard were killed? When will you stand up against organisations like the Westboro Baptist Church? How long will you except LGBT teens being bulied into suicide?

      Right now the chance of reconcilation between religious conservatives and the LGBT community are slim to none. And everytime people like Aaron and Melissa Klein, Barronelle Stutzman or Kim Davis demand to be exempt from the law due to religious objections that chance becomes smaller. So far the courts have not been on your side and neither is public opinion (as this article illustrates). And people are getting tired of this, also because conservatives do not have a great track record in treating LGBTs with even a little decency. So instead of demaning tolerance you should start to understand why that specific demand is working completely against you. And perhaps an official apology coming from the main religious institutions in the world would be a step into the right direction. Because history is written by the victors and you are definately not the authors of this chapter in human history.

      • jason taylor

        If in fact history is written by the victors, how do you know you are oppressed?

      • ElrondPA

        Perhaps the pork analogy doesn’t work for you, but what about asking a gay baker to adorn a cake with Leviticus 18:22 (“Do not lie with a man as one lies with a woman; that is detestable”), or asking a black printer to make a poster for a KKK rally? The only difference from what the service provider normally does is the text/meaning. What is your basis for allowing them to decline the service, while fining someone who declines to participate in same-sex ceremonies? (Or are you going to be consistent and impel them to serve the customer?)

        If there were a concerted restraint of trade, or even worse, legal sanctions preventing anyone from servicing such ceremonies, along the lines of Jim Crow, the situation would be quite different. But can anyone with a straight face claim that gays are having difficulty getting served? Why would you even want someone who disagrees with the appropriateness of your event to participate in it, aside from retributive glee at rubbing their faces in it? Even Andrew Sullivan, one of the early champions of gay “marriage,” calls gays who do this “intolerant a**h***.”

        • Phoenix1977

          Two words: “Hate speech”. As a gay man I find Leviticus 18:22 hateful and I feel threatened by it. Because it only requires one lunatic with a gun, like the guy last summer in Orlando, to act upon it. And I don’t think we need to discuss how a black printer would feel threatened by a KKK rally, right?

          And I don’t care how much trouble LGBTs have to get serviced. Fact is we should not even have to think about it. People should simply do their jobs and keep their religion out of it or seek other employment. Because it’s not only about a cake or a floral arrangement. If bakers a florists are allowed to deny LGBTs service so would nurses and doctors be, or police officers or fire fighters. So, all of a sudden, the on call surgeon can refuse operating on a patient with a ruptured appendicitis because he believes LGBTs should not be allowed to live (Leviticus 20:13).

          Religion is a private matter and that is exactly where it should remain: in the privacy of one’s home and church. There is no place for religion in the public square and no law should carry exemptions for religious objections in the workplace. Your religion is your thing. Don’t bother others with it.

  • Hersheymom

    This may be a true story, but I’m not certain, so let’s call it hypothetical. Melania Trump desired to engage a particular well-known designer to create her gown for the Inauguration. The designer was not a supporter of Mr. Trump, in fact was strongly opposed to his policies. She declined to design the gown, not wishing to contribute or in any way appear to endorse the Trump presidency. In other words, she refused to provide her professional services, for ideological reasons. Does she have that right? Most Americans would agree that she does. (Many would call her a hero!) Most would also agree that it would be wrong for the government to impose fines or send her to prison for her refusal. Why, then, does a baker, florist or photographer not enjoy the same right? The answer is that we are reaping the fruit of the well-intended but short-sighted anti-discrimination laws that began to be passed in the mid-60s. The idea was to protect “certain” people, and therein lies the seed of the class conflicts we see today. We now have “protected classes,” and if you can get your group added to that magic list, you are legally entitled to all kinds of privileges and exemptions not extended to those of us who are, ipso facto, un-protected. So much for the tyranny of the majority. Who are the tyrants now?