Religious Freedom, from Past to Future

The “unending cycle” of religious intolerance

September/​October 2017 • Policy Report

Should Christian bakers be forced to bake cakes for gay weddings? Can public schools ban religious attire, such as Muslim head coverings? Can the government require nuns to pay for birth control? Year after year, there is no shortage of controversies involving the right to practice one’s religion in the public sphere. In June 2016, the Cato Institute hosted a timely conference on religious liberty, gathering scholars from Cato’s Center for Constitutional Studies and its Center for Educational Freedom, along with a number of distinguished outside scholars. Those presentations have now been adapted into essays and published in a book, Deep Commitments: The Past, Present, and Future of Religious Liberty.

The book begins with a chapter by Douglas Laycock of the University of Virginia School of Law on the history of America’s political battles over the Religious Freedom Restoration Act (RFRA). Originally a bipartisan effort, RFRA’s first opposition came not from the left, but from the prolife right, which feared that RFRA would be twisted into a justification for abortion in the event that the Supreme Court overturned Roe v. Wade. Two decades later, RFRA’s political supporters and detractors have switched places—it is now the right that defends RFRA (although often, Laycock argues, for the wrong reasons), while the left accuses it of being a “license to discriminate.” Groups such as the American Civil Liberties Union have demoted religious liberty to a lesser‐​tiered right they’re willing to dispense with if it conflicts with other values. And although conservatives defend RFRA, they often do so in the context of denigrating the gay community or religious minorities such as Muslims. Neither side wants to protect the rights of the others. Laycock argues that religious liberty should never have become a partisan issue in the first place. “Both sides in the culture wars seem to be equally intolerant of the other,” he writes. “And these attitudes make it very difficult to protect religious liberty.”

Other essays and excerpts from panel discussions explore the history and philosophy of religious liberty, examine conflicts over religious liberty in public education, and debate the tension between religious liberty principles and equal protection antidiscrimination principles. Edited by Cato’s Trevor Burrus and David McDonald, Deep Commitments includes contributions from Princeton’s Robert P. George, Charles C. Haynes of the Religious Freedom Center, Mark L. Rienzi of the Catholic University of America, and Louise Melling of the American Civil Liberties Union. In the final chapter, Judge William H. Pryor of the U.S. Court of Appeals for the Eleventh Circuit discusses the right of religious people to be left alone, as well as what role, if any, religious beliefs should play in a judge’s work.

In the introduction, Burrus surveys the history of arguments over religious freedom, from George of Cappadocia’s execution in Egypt in 361 CE up to the present day. He notes that, despite our modern age’s increasing secularism and notions of tolerance, modern “liberalism” is often just as intolerant as those ancient mobs. “We seem to be locked in an unending cycle: those who once asked for tolerance become intolerant when they acquire power,” he writes. History teaches us that it is times of great political division in which calls for religious liberty and toleration are most necessary. “Now, more than ever, the ideas of religious toleration and liberty of conscience should not be put to the flames,” Burrus concludes.

Purchase Deep Committments as an ebook at cato​.org/​store, or in paperback at online book retailers.

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