Among all the uses conservatives can think of for a Trump executive order or Supreme Court nominee, there’s one, too often forgotten, that ought to come first. Religious freedom—scholarly and practical advocates say, in a nod to the founders—is not just the first freedom in the Bill of Rights but “the soul” of the American experiment.
“Foundational,” said Thomas Farr, director of Georgetown’s Religious Freedom Project, at their symposium on Tuesday. Foundational “not in the sense that it is superior,” he said, but rather in that “it energizes the other freedoms.” It functions like an individual’s faith in God: It gives the other freedoms a reason to get out of bed in the morning. So, it comes first for good reason, in other words.
And for the same reason Kelly Shackelford’s First Liberty Institute, the largest religious liberty law firm, wins 90 percent of its cases, whether they’re defending a football coach’s freedom to pray or a public health official’s right to profess his faith to his own parish. The right to believe and practice one’s faith free from government coercion does tend to triumph—but only with a vigilant defense, even though it’s central to our nation’s history and first among the rights explicitly granted the self-governed.
“When government does expand,” Shackelford said, “it does have to back off from the religious freedom front because of the Constitution.” Shackelford invoked the too common injunction “play by the government’s rules” in defiance of religious doctrine. No matter how faithfully and effectively First Liberty defends its cause, government coercion continues.
Will a President Donald Trump decry and defy continuing coercion? He did while campaigning, and “the constituency that put him in office” will watch closely for him to follow through, Shackelford said. Together with a Republican Congress and a vice president committed to the cause, Trump’s having many promises to keep makes for “the best situation for follow-through that I can imagine,” Shackelford said. “We’ll have to watch and see what happens.”
The optimism of Georgetown’s Farr is more cautious. He worked with the religious liberty advisory committee on Senator Marco Rubio’s primary campaign and co-signed a widely-published letter, from Catholic scholars and clerics, casting doubt on Trump’s commitment to causes most often important to Catholics.
Bryon Johnson, founding director of the Baylor Institute for Studies of Religion, told me Farr had just consulted with the Trump camp “a week or so ago,” at which time the president-elect “was asking questions about religious freedom, so we are optimistic that he will be engaged.”
“I’m hopeful because of the Supreme Court,” Farr said. “I’m hopeful in terms of some of the appointments he’ll make,” and “the problems, and indeed the threats to the culture, that would have been imposed by the [Hillary] Clinton administration are by definition not there.” But a broad cultural understanding of this first enumerated freedom remains missing from most of modern American life.
The threat to religious liberty that a Trump administration cannot beat back by executive actions or Court appointments is a cultural rather than a legal problem, Farr said. “I’m really worried that conservatives are relaxed on religious liberty. They’re thinking that the problem has been solved.” To think so bespeaks a fundamental, possibly fatal, misunderstanding of where such threats to freedom originate.
Placing our trust in the president-elect to protect the first freedom comes down to a vigilant faith in the Constitution. Religious freedom as the too-often forgotten soul of the American idea came into sharper focus at the Georgetown symposium during Senator Ben Sasse’s professorial barnstormer of a keynote address. Few speakers neglected to invoke him for the rest of the afternoon.
Religious liberty, Sasse said, has an identity problem—a populist-nationalist identity politics reputational problem, even. A defense of religious liberty sounds to some secularists like a paranoid pull for self-preservation, the first-term lawmaker allowed: “When you advocate for positions that you already hold, nobody hears you. They only hear when you defend people that you have some credal difference from.”
But defending the rights of dissenters requires a deeper knowledge of what those rights are and why they matter—it requires, Sasse said, “that we understand the public square and the … stuff of life to be much bigger and broader than the much narrower set of things that we ever seek to solve by power and by government.”
Vice President-elect Pence understands this too, perhaps. Senator Sasse did say that he is “hopeful about some of the voices that we hear being considered [by the administration]” and, specifically, encouraged by “the promotion of Vice President-elect Pence to the head of the transition team, so I’m going to be cautiously watching and hopeful.”
Shackelford—who qualified “I don’t ever put my trust in any politician”—said Trump’s elevation of Pence, with whom his firm has often worked, “adds further confidence, hoping that a number of these things are going to be able to get done.”
And Farr agreed: “Having Mike Pence there is gold,” he said, referring then to the misunderstood controversial Religious Freedom Restoration Act Pence supported, and then softened, as governor of Indiana. As a test, it deepened his conviction. “That experience helps him understand even more.”
Nevertheless, Farr said, religious liberty is “not just an issue of policy and law—and I’m frankly worried that the administration is not seeing the deep importance.” And if in fact they are, then they see far more than they let on. Farr, whose recent meeting with team Trump ought to have afforded him a particular insight into the administration, said with some certainty, “It’s not a high priority.”
