Religious Liberty in a Polarized Age (Thomas C. Berg) - A Review
RELIGIOUS LIBERTY IN A POLARIZED AGE. By Thomas C. Berg. Grand Rapids, MI: Wm. B. Eerdmans Publishing Company, 2023. Xii + 359.
There
is a lot of talk these days about religious liberty and religious freedom in
the United States. It is part of our ongoing political, cultural, and legal
conversation. Numerous cases involving important matters of church and state
have appeared before the Supreme Court in recent years, and many more are on
the horizon. It appears, based on recent rulings, that the current court is apt
to side with religious claimants. Some of those decisions are worrying to many
who want to make sure that the proper boundaries between church and state
remain in place. While some of these recent rulings have been helpful, others
have troubling consequences. As with many other areas of life, the populace is
divided. The question is: How should we understand and respond appropriately to
matters of religious freedom lying in front of us? For those of us who are
adherents of a religious tradition, the outcome of these debates and rulings
can have an impact on our lives. So how should we proceed?
Thomas
Berg offers us an important analysis and set of suggestions that address the
concerns in his recently published book Religious Liberty in a Polarized Age, the most recent contribution to the Emory University Studies in Law
and Religion series. Berge serves as the James L. Oberstar Professor of
Law and Public Policy at the University of St. Thomas School of Law in
Minnesota. In addition to his teaching duties, he has served as an advocate and
advisor to numerous groups as they seek redress in the courts. Thus, he brings
both scholarly and practical insight to the questions at hand. He is committed
to supporting religious freedom in the United States, but he also understands
the limits to that freedom.
As Berg
demonstrates in this book there is often a fine line between religious freedom
and the rights and concerns of those affected by claimants of religious
freedom. We’re seeing that play out in our courts. It should be noted that in any
book dealing with current debates, there will have been developments that have emerged
since the manuscript went to the publisher. In this case, Berg wrote the
preface to the book in December 2022. Thus, he wrote before the Dobbs decision overturning
Roe v. Wade was made by the Supreme Court. Other decisions have been made since
then. So, this doesn’t cover every issue, but it does provide us with a lens to
view decisions that continue to be made by the courts and the impact of those
decisions on our lives.
Berg
covers a lot of ground in Religious Liberty in a Polarized Age. He
offers important guidance on matters that range from the intersection of LGBTQ
rights and traditionalist religious perspectives to the rights of minority
religions in the United States. He offers sharp and sometimes words for folks
on both the left and right; religious and non-religious. As I read the book, I
quickly realized that certain recommendations might not sit well with some of
my friends. However, there is likely a need for balance if the polarization so
prominent in our society is to be overcome so that we can move forward in
respecting the rights and needs of everyone.
As one
might expect, much of the focus of the book centers on the Supreme Court since
it’s this Court has become the final destination of the debates over religious
liberty and individual rights. Berg points out that the "bitterness of
religious-liberty disputes arises from, but also feeds into, the overall bitter
polarization of our society" (p. 4). I think we can agree with that
analysis.
Thomas
Berg divides Religious Liberty in a Polarized Age into three parts. The
first two chapters, found in Part 1 provide an overview of "the problem of
polarization and religious liberty." He begins with a chapter laying out
the current situation facing us in a "Polarized America," including
religious divides. He does this by laying out the full set of concerns that
threaten the nation’s viability. He concludes the chapter by noting that
“because so many scenarios are bad, it is worth considering all possible
resources for mitigating polarization—including the resource of our tradition
of religious freedom” (p. 54). Having laid out the current crisis of
polarization in the United States, he moves on in Chapter 2 to the specific
issues that have emerged due to the "Polarization on Religious-Liberty
Issues." In this chapter, Berg focuses on three sets of religious-liberty
issues. The first area of concern is discrimination against Muslim individuals
and organizations that have been supported by conservative Christians.
Secondly, there is the opposition of progressives to meaningful protections for
traditionalist religious organizations when it comes to conflicts between LGBTQ
nondiscrimination laws. Finally, there are conflicts over religious meetings
during the COVID-19 pandemic. He notes that the pattern of religious liberty
disputes has not only contributed to the overall sorting out of political
positions, but they have aggravated them. The irony here is that the American
tradition of religious liberty is supposed to calm such concerns.
While
Part 1 lays out the basic areas of concern, Part 2 of the book offers the
primary arguments for religious freedom. This section of the book offers us three
chapters in which Thomas Berg seeks to lay out his arguments for protecting the
religious liberty of all Americans (that would include the freedom of those who
do not believe). He begins in Chapter 3 by arguing for recognition of how
religion is, for many in the United States, a pervasive element in their
personal identity. That is, if a person’s ability to live out their faith is
curtailed this causes them harm. That is an important reason why the Founders
sought to protect religious liberty. He concludes that “we desperately need to
exercise more sympathy across ideological lines concerning pressures against
people’s identity and integrity. That applies to pressures against Hmong and
other religious minorities, atheist plaintiffs, same-sex couples, and religious
traditionalists.” He writes that we tend to “dismiss the important identity
features of people with whom we disagree, while upholding those with whom we
agree.” This pattern further drives the wedge of polarization in our society
(p. 118). Building on this analysis Berg turns in Chapter 4 to offer an
argument as to why protecting religious freedom can help reduce fear,
alienation, and division in American society. The final chapter in Part 2
argues for the role of religious involvement and the freedom to serve and
contribute to the common good. Here, Berg emphasizes the contributions made by
people of faith and faith-based institutions. While he lays out how religious
communities can and do contribute to the common good, he also acknowledges the
damage done when such groups fail to contribute to the common good. In this
chapter, Berg cautions white evangelicals especially, who are the most
resistant to respecting the pluralism present in the nation. The goal of the
chapter is to encourage people of faith to treat religious freedom as the
foundation for the freedom to serve.
Part 3
brings Berg’s Religious Liberty in a Polarized Age to a close. In this
final section of the book, Berg focuses on what he believes are the "Principles
of Religious Freedom." This section contains four chapters that offer ways
in which "strong religious freedom for all" can be translated into
concrete principles of law. The first chapter in this section offers a primer
on the Constitution's free-exercise principles. These principles, according to
Berg, if they are to fulfill their objective, must, first of all, provide a
standard of protection of religious liberty that applies to all religious
traditions. In other words, if religious freedom is to work in the United
States, a person or group cannot claim freedom for one's own beliefs and
practices and then seek to deny them to others (Berg shows in the book that
white evangelicals have exhibited this tendency by arguing for their own
religious liberties while opposing the rights of Muslims). Second, laws have to
protect religious liberty from all sources of threat. Finally, "Religious
freedom must have boundaries set by the interests of others and of society.
Without such boundaries, religious-freedom protections lose credibility and
ultimately, staying power" (p. 188). Examples can be nondiscrimination
laws for LGBTQ persons that offer exemptions for religious persons/communities.
Here there is a fine line that is difficult to maintain, as many of my LGBTQ
friends have discovered. Having laid out general principles in Chapter 6, Berg
moves to the need for legal protections for minority faith communities. Here he
puts the primary focus on attempts to place restrictions on Muslims (other
faith traditions can probably add their own witness). Here he argues that it is
in the best interests of conservative Christians to support the religious
freedom of Muslims and other religious minorities. If they argue against such
freedoms, they undermine their own religious liberty claims. He also addresses
religious progressives like me, suggesting that in our support for religious
minorities, it is wise to recognize that conservative Christians can at times
be a vulnerable minority. The examples he gives include decisions by colleges
and universities to bar Christian groups from meeting on university property,
while other nonreligious groups are provided such locations. In this chapter, Berg
addresses several topics that arrange from allowing beards for Muslims to the
use of peyote in Native American rituals as well as providing appropriate foods
in prison for persons with religiously restrictive diets. In Chapter 8, Berg
addresses the need to balance LGBTQ rights and religious freedom. This is a
challenging chapter that won’t make everyone happy. I understand the need for
exceptions for religious schools and other nonprofits along with religious
communities when it comes to recognizing LGBTQ rights. While challenges to
exceptions often use racial/ethnic discrimination laws as a parallel, Berg
suggests that a better analogy is religious freedom. He addresses the concern
that many have after the Dobbs decision on abortion, that similar arguments
could be used to undermine Oberkfell. He addresses these and suggests that
while it is appropriate to have this fear, Obergefell and Dobbs are different
in nature. However, since we're seeing attacks on the rights of LGBTQ folks,
especially transgender people, this chapter is going to be a challenge. When it
comes to religious concerns regarding LGBTQ rights, including same-sex marriage,
I noticed that he didn’t discuss the fact that before Obergefell, the rights of
Progressive religious communities were not respected. That is, we could perform
commitment ceremonies but not marriages. Nevertheless, whether his solutions
are acceptable will be seen in if and how they work out in practice. Berg
argues for protecting the rights of both sides, but it’s not easy to
accomplish. Berg believes that by providing appropriate religious exemptions,
some of the polarization surrounding these areas of conflict could be calmed.
Finally, in chapter 9, Berg addresses government religious speech ranging from
prayers at civic and legislative events to school prayers. As one who has
prayed/given invocations at civic events, I am implicated in this conversation.
While SCOTUS has affirmed the propriety of prayers in legislative settings, Berg
believes some of the rulings have gone too far. He also notes the issue of
school prayers remains largely unresolved. The question here revolves around
the challenge of government endorsement of religion, especially when that
endorsement often involves a majority faith (Christianity). The question we
face in such matters is how to avoid coercion. It’s one thing for a self-led
student group to meet for prayer and bible study and another for schools to
open the day with a prescribed prayer led by a teacher.
As Thomas
Berg brings Religious Freedom in a Polarized Age to a close, a book that
I found, by and large, to be extremely insightful and helpful, he notes the
ironies involved in the debate over the protection of religious freedom. One
irony he lifts up has to do with evangelical claims that Muslims are threats to
society and have sought to impose restrictions on Muslim practices, and travel,
along with calling for surveillance of Muslim communities, when the same
concerns leveled at Muslims by evangelicals are those offered by Progressives
against religious conservatives, since many Progressives claim that religious
conservativism is nothing more than a religious covering for a bigoted
political movement. The divisive issues still on the table concern abortion and
what happens after Dobbs. Here again, the issue is complicated, especially
since religious communities are not of one mind. Conservative Christians might
argue for the need to protect the life of the unborn, even at the risk to the
life of the mother, while Jews would argue for protecting the life of the
mother. When we face such questions, we need to ask whose religious rights are
at risk.
There
are, Berg believes, paths to bring a sense of calm to the current crisis facing
the nation. Finding a path forward that will bring that sense of calm will not
be easy. One possible example of an effort to find a balance between competing
rights is an effort in Utah to protect LGBTQ rights as well as those of
religiously conservative citizens. He believes that a commitment to religious
freedom can help in these solutions if that commitment is strong, treats all
faith evenhandedly, and remains mindful of other interests” (p. 343). It's not an
easy path to take but it is necessary that we carefully address these concerns if
our country is going to avoid dividing into warring factions (we’re already
hearing talk of a civil war). While I struggled with the chapter dealing with LGBTQ
concerns because I have friends and family members who are affected, overall, I
believe Berg’s effort to address the concerns of our day can serve as an
important contribution to a much-needed conversation that can lead us beyond
the current polarization. We will never find complete agreement, but if we are
to truly embrace religious freedom, then it must be religious freedom for all.
Then, as Berg concludes, “religious freedom can again play its historic role of
stopping cycles of suffering, fear, and resentment” (p. 343).
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