In my previous job as a religious freedom advocate on Capitol Hill, I once got into conversation with someone whose approach to advocacy, frankly, defied common sense. He represented a minority faith, the Sikhs\u2014a numerically tiny religious community that\u2019s a mere footnote in the religious demographics of most countries. Yet, despite their small numbers, they tend to stand out. Their distinctive religious apparel sometimes makes their everyday lives challenging. In the days following September 11, for example, hate crimes against Sikhs in America, already high, climbed even further as people mistook turban-wearing Sikhs for Muslims. <\/p>\n
As we talked, I asked him about news reports of atrocities committed against Sikhs just days earlier in Pakistan. \u201cWhat sort of advocacy efforts does your organization mount here in Washington when events such as this occur?\u201d I asked.<\/p>\n
\u201cActually, that sort of thing isn\u2019t my real focus,\u201d he said. \u201cI find my voice is much more effective when I\u2019m speaking for the rights of other groups, rather than just those of my own people.\u201d And he went on to detail the various projects he was currently involved with supporting other<\/i> religious minorities facing discrimination or persecution. <\/p>\n
His strategy seemed counterintuitive, to say the least. It was certainly out of sync with the no-holds-barred, win-or-bust style of many of the Capitol Hill advocates I\u2019d seen in action. <\/p>\n
Winning for our own tribe, or our own point of view, seems like a pretty universal drive. And I must admit that from childhood on, I\u2019ve never really resonated with the idea that \u201cit\u2019s not whether you win or lose, it\u2019s how you play the game.\u201d Somehow that idea seemed less than compelling in the midst of a fiercely fought interschool soccer game or swimming race. Later, at law school, it became patently clear to me that winning does, indeed, count for a great deal within the language and practice of the law. There\u2019s a reason it\u2019s called the adversarial system! Within the common law model, each case argued is, in essence, a battle to the death of competing narratives; a battle aimed at producing a winner and loser. The side with the winning narrative receives the spoils of victory\u2014injunctive relief, or monetary damages, or an affirmation of rights. Losers pay the costs, accept defeat, and perhaps make plans to fight another day.<\/p>\n
When it comes to religious liberty, how do we measure winning or losing? <\/p>\n
By one benchmark, at least, religious freedom is currently enjoying quite a winning streak in the United States. The recent Supreme Court decision in Fulton<\/i> v. City of Philadelphia <\/i>in favor of a Catholic social services agency,<\/i> for instance, was just the latest in a string of High Court rulings that seem to bolster the claims of those who characterize the current Court as predictably \u201cpro-religion.\u201d <\/p>\n
But according to one recent study, this pro-religion bent of the Supreme Court is part of a trend that predates the appointment of newest associate justices Brett Kavanaugh and Amy Coney Barrett, who\u2019ve added even more weight to the conservative side of the scales. In the study, researchers analyzed Supreme Court rulings on First Amendment religion clauses from the past 70 years, finding that Court decisions in favor of religion have risen steadily through the decades. Pro-religion rulings climbed progressively from 41 percent in the 1950s and 1960s under Chief Justice Earl Warren to an impressive 81 percent under the current reign of Chief Justice John Roberts.\u00b9<\/p>\n
So, religious freedom is winning, right?<\/p>\n
And yet if you tilt your head and squint a bit, the picture changes, and it can also<\/i> look a lot like religious freedom in this country is actually losing ground\u2014quickly. It\u2019s losing the battle of public opinion. <\/p>\n
In widely circulated remarks last year, Supreme Court Justice Samuel Alito suggested that \u201creligious liberty is fast becoming a disfavored right\u201d in American society.\u00b2 It\u2019s hard to disagree that the halo around religious freedom as an uncontested American ideal is slipping. It\u2019s difficult to ignore the frequent opinion pieces declaring that religious freedom has been \u201cweaponized\u201d; that it operates as a cover for discrimination and bigotry; that when the state grants religious exemptions to generally applicable laws, it\u2019s not supporting First Amendment free exercise so much as crossing the establishment clause line. <\/p>\n
A national poll last year explored current attitudes in America toward religious freedom, focusing on differences between self-identified liberals and conservatives.3<\/sup> The bottom line? While debates around religious freedom have always existed, the issue today has become hopelessly entangled in political partisanship, jumbled up with a host of other emotionally charged issues that litter our polarized political landscape. <\/p>\n Perhaps it\u2019s time to take a long hard look at our end goals.<\/p>\n As Liberty\u2019s<\/i> new editor, I\u2019ve been reading through the magazine\u2019s archives, beginning with the first issue to roll off the presses in early 1906. In the pages of that first issue\u2014a bargain at just five cents a copy\u2014the editors explained why they\u2019d brought this journal into existence, and what they wanted to achieve. <\/p>\n It was, they said, a time of great political agitation for a national Sunday law, which would have far-reaching legal consequences for those who didn\u2019t observe the Sabbath of America\u2019s Protestant majority. As members of a religious minority who worshipped on a different day, Liberty\u2019s<\/i> editors saw ahead of them a protracted battle for the preservation of religious freedom for all Americans.<\/p>\n They wrote: \u201cOvercome darkness with light. It is the only effective way. In the contest with ignorance, bigotry, and intolerance the best victories will be gained by calling attention to the brightness and beauty of the principles of religious freedom, and not by simply trying to make people see the darkness and ugliness of religious intolerance. Let light and darkness, beauty and ugliness, be put side by side, and the people will soon see the contrast, and make their choice between them.\u201d 4<\/sup><\/p>\n We\u2019ve inherited the task they began, and in today\u2019s political and social climate, it\u2019s a task far more arduous than pulling off Supreme Court wins. Real victory for religious freedom lies elsewhere and is harder won. It requires salvaging religious freedom from the culture wars. Cleansing it of its political taint. Reclaiming and demonstrating the \u201cbeauty of the principles of religious freedom.\u201d <\/p>\n And in rebuilding a culture of religious freedom\u2014as opposed to just defending religious freedom rights\u2014I\u2019d suggest that our tone is just as important as our legal arguments. Maybe, as my Sikh colleague seemed to imply, winning for our own team isn\u2019t all that counts. Maybe it really is more about how we play the game.<\/p>\n 1 Lee Epstein and Eric A. Posner, \u201cThe Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait,\u201d Supreme Court Review, April 3, 2021, https:\/\/ssrn.com\/abstract=3825759.<\/p>\n 2 Address by Justice Samuel Alito to the Federalist Society, November 12, 2020, https:\/\/youtu.be\/tYLZL4GZVbA. <\/p>\n 3 \u201cExamining Americans\u2019 Views on Religious Freedom and Its Limits,\u201d conducted by the University of Chicago Divinity School and the Associated Press-NORC Center for Public Affairs Research, https:\/\/apnorc.org\/wp-content\/uploads\/2020\/08\/Divinity-School_Topline.pdf.<\/p>\n 4 Liberty, April 1906, p. 32.<\/p>\n","protected":false},"excerpt":{"rendered":" In my previous job as a religious freedom advocate on Capitol Hill, I once got into conversation with someone whose approach to advocacy, frankly, defied common sense. 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