Defending the First Amendment Right of Diverse Religious Groups

Religious liberty, my chief research interest, often has been a subject of controversy, but never more so than in recent months. The U.S. Catholic bishops have called the federal mandate on employers to provide insurance coverage for contraception, including for some methods that arguably can abort embryos, a threat of “unprecedented magnitude” to the freedom of religious organizations. Proponents of mandatory coverage argue it promotes both women’s health and individual women’s decision-making and that these outweigh institutions’ freedom not to fund activities they consider gravely sinful.

Mandatory contraception coverage is the latest iteration of a question that has appeared throughout history and has driven much of my research and writing: when a civil law enacted for secular reasons conflicts with religiously motivated codes of behavior, does religious freedom call for the law to give way, and if so when? This issue, which goes back as far in America as Quakers’ refusals to swear oaths or serve in the militia, took a new turn in the early 1990s, sparking my interest just at the start of my academic career. First the U.S. Supreme Court ruled, in a case involving Native Americans’ sacramental use of the illegal drug peyote, that the First Amendment’s guarantee of free exercise of religion does not require exceptions for religious adherents from secular laws “of general applicability.” In response, a nearly unanimous Congress – realizing that the Court’s rule could leave religious minorities subject to severe even if unintended burdens – passed the Religious Freedom Restoration Act of 1993 (RFRA), which required government to show a strong reason to justify imposing such burdens on sincere religious practices.

My first scholarly article was one of the first two major analyses of RFRA’s background and intended meaning. Since then, in a number of articles and appellate briefs, I’ve argued for a vigorous interpretation of the statute to protect the conscientious beliefs of all faiths. In litigation I’ve represented, among others, liberal and conservative Christians, orthodox Jews, Native Americans, Muslims, Jehovah’s Witnesses, Hare Krishnas and a tiny sect called the Uniao do Vegetal whose members ingest small amounts of a hallucinogenic tea at worship services.

My own beliefs about the foundation and importance of religious freedom for all faiths could not be better expressed than in the words of the Second Vatican Council’s Declaration on Religious Freedom:

It is in accordance with their dignity as persons – that is, beings endowed with reason and free will and therefore privileged to bear personal responsibility – that all men should be at once impelled by nature and also bound by a moral obligation to seek the truth, especially religious truth... However, men cannot discharge these obligations in a manner in keeping with their own nature unless they enjoy immunity from external coercion as well as psychological freedom; therefore the right to religious freedom has its foundation not in the subjective disposition of the person [or in the truth of his beliefs], but in his very nature.

Here as in many other areas, I as an Episcopalian take great inspiration from Catholic teaching on human dignity. Among my recurring scholarly themes have been (a) that religious freedom is a value that “progressives” and civil libertarians should vigorously support even for those whose religious views they oppose, and (b) that there are principled ways to strike sensible balances between religious freedom and the interests of others and of society. So, for example, in one article I argued that evangelicals and other religious conservatives are often among the minorities for whom civil libertarians should have sympathy. In another article, I argued that the very same values that support recognition of same-sex marriage – respect for fundamental aspects of persons’ identities – also call for strong protection of those who object to directly facilitating such marriages, such as Catholic adoption agencies or evangelical wedding photographers. Together with a half dozen other legal scholars, I’ve proposed model statutory provisions accommodating conscientious objections in states that are considering recognizing same-sex marriage. Several states recently have adopted parts of our proposal.

I hope that one legacy of my work will be provisions that preserve the ability of both sides in this contentious debate to live consistently with their deep values and identity. The efforts concerning same-sex marriage exemplify one of the most satisfying parts of being a law professor: the chance to link theory and practice, to translate scholarly research and theses into arguments that can affect courts and legislatures. To make forceful arguments while preserving the scholar’s respect for nuance is a challenge, but I believe it’s a worthwhile one.

Another satisfying part of my job is to work with intelligent and motivated law students. Research assistants have made many valuable contributions to my work, finding information, providing both substantive and editing comments, and in several cases co-writing articles. In offering a yearly paper-writing seminar on Religious Liberty during my 10 years at St. Thomas Law, I’ve also benefited again and again from student ideas on these issues.

Thomas Berg is James L. Oberstar Professor of Law and Public Policy.

 From Exemplars, a publication of the Grants and Research Office.