JOAN FRAWLEY DESMOND, Tolerance, Religious Freedom, and the 2016 Election, National Catholic Register

When Khizr Khan delivered a speech at the Democratic National Convention in Philadelphia that attacked Donald Trump’s plan to temporarily bar Muslims from entering the country, the Pakistani American noted that his own son, a U.S. Marine, had died protecting the lives of his fellow soldiers.

Khan — a Muslim and a lawyer, whose son, Humayun Khan, posthumously received the Bronze Star and Purple Heart for his bravery — lashed out at Trump.

“Let me ask you: Have you even read the United States Constitution?” said Khan. “In this document, look for the words ‘liberty’ and ‘equal protection of law.’”

Trump swiftly pushed back against Khan’s broadside, and soon political leaders from both parties had weighed in, criticizing the GOP candidate for his harsh treatment of a grieving father.
“His sacrifice — and that of Khizr and Ghazala Khan — should always be honored. Period,” House Speaker Paul Ryan said in a statement that rebuked Trump for his treatment of Khan’s parents, and reflected the GOP leadership’s efforts to clarify the party’s commitment to religious freedom, even as news headlines target Trump’s comments.

In December, when Trump floated his plan to block Muslims from entering the country, Ryan jumped in to make a distinction between the candidate’s stance, and the party’s position.

“Freedom of religion is a fundamental constitutional principle; it is a founding principle of this country,” said Ryan.

“What was proposed … is not what this party stands for and more importantly it’s not what this country stands for.”

Indeed, the 2016 Republican Party Platform’s extensive language on First Amendment Rights, approved this summer, celebrated the “Foresight of Our Founders to Protect Religious Freedom.”

“The first provision of the First Amendment concerns freedom of religion. That guarantee reflected Thomas Jefferson’s Virginia Statute for Religious Freedom, which declared that no one should ‘suffer on account of his religious opinion or belief, but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion,’” read the platform, which chronicled troubling details of new threats to free exercise rights.

But media coverage of each party’s platform and convention themes hasn’t drilled into the policy details on this issue. Thus, voters are left with the optics of a presidential candidate challenging the credibility of Gold Star parents.

At the same time, little attention has been given to another striking development: the Democrats’ push to reframe and restrict religious freedom as a threat to newly established sexual rights and protections.

The Democrats’ record on this issue warrants a long-overdue discussion about the meaning and the future of religious freedom, in a shifting political, cultural and judicial landscape.

Democrats’ ‘Progressive Vision of Religious Freedom’

Such an analysis should include the Democratic Party Platform’s new formulation of the first freedom that raises questions about the priorities of a future Clinton administration.

“We support a progressive vision of religious freedom that respects pluralism and rejects the misuse of religion to discriminate,” reads the platform’s only reference to religious freedom, located in a section of the document that deals with “LGBT rights.”

Bradley Lewis, an associate professor of philosophy at The Catholic University of America, described the 2016 Democratic Party Platform’s language on religious freedom as “worrisome.”

“A ‘progressive version’ of religious freedom is something other than religious freedom,” Lewis told the Register.

“It is a particular interpretation of religious freedom that conditions or qualifies religious freedom on whatever counts as ‘progressive’ according to whoever gets to decide.

“This is not what our Constitution guarantees.”

Kristen Day, executive director of Democrats for Life of America, has already expressed alarm about another, related problem with the platform’s language.

“A commitment to religious liberty in the context of abortion, which was included in the 2012 platform, has been removed,” noted Day, in a July 25 column for the Los Angeles Times opinion page she co-authored with Charles Camosy, a professor at Fordham University and a member of Democrats for Life’s board of directors.

The 2016 platform’s stance on religious freedom reflects an evolving approach to the first freedom by liberal elites.

This new formulation provides context for the Obama administration’s refusal to broadly exempt religious employers who opposed the Health and Human Services contraceptive mandate, and for the split decision by an ideologically divided U.S. Supreme Court in favor of Hobby Lobby’s legal challenge to the mandate, which requires most employers to provide cost-free contraception, abortion-inducing drugs, and surgical sterilization.

Likewise, the shift in perspective helps explain why partisan activists have aggressively attacked state religious freedom restoration acts, which could afford conscience protections for Christian wedding vendors, as “a license to discriminate.”

“This administration firmly believes that conscience has to be balanced against other competing goods,” Teresa Collett, a faculty member at the University of St. Thomas School of Law, told the Register.

“When we are dealing with sexual morality, or what Helen Alvare calls ‘sexualityism,’ it has very little weight.

“That means a pharmacist has to fill the prescription for the abortion pill, and the Little Sisters of the Poor have to ensure coverage of contraception for their employees,” said Collett, referring to two recent religious-liberty cases.

The Obama administration’s controversial record on this issue prompted the U.S. bishops to green light legal challenges to the HHS mandate. And after Trump dominated the pool of GOP presidential hopefuls, social conservatives secured his pledge to nominate Supreme Court justices who respected the rights of pro-life Americans.

The Issue of Muslim Immigration

Yet Trump’s proposals for restricting the migration of Muslims have deflected public attention away from the direction of the Supreme Court or the Democrats’ pivot on religious freedom. Meanwhile, GOP and Christian leaders have been engaged in damage control, and tried to present a consistent message on religious liberty and tolerance.

“A government that can close the borders to all Muslims simply on the basis of their religious belief can do the same thing for evangelical Christians,” said Russell Moore, president of the Southern Baptist Convention’s Ethics and Religious Liberty Coalition, after Trump first outlined his plans in December.

“We must have security and we must have order. But we must not trade soul freedom for an illusion of winning.”

Asked to comment on both campaigns’ treatment of religious liberty, Douglas Laycock, an authority on religious freedom at the University of Virginia School of Law, argued that “both sides are making versions of the Puritan mistake. They want religious liberty for the religions they sympathize with, and not for the ones they deeply disagree with.”

“This also explains the Democrats revoking their support for conscientious objectors to abortion, and their unwillingness to protect small wedding vendors with conscientious objections to same-sex weddings,” said Laycock.

“Their support for Muslim immigration is a little different,” he added. “Democrats sympathize with refugees and immigrants, and immigration has become a significant issue in the campaign.”

But as Laycock sees it, Trump’s proposals will make it tough for Republicans to engage voters concerned about religious freedom.

Trump’s plans are “so fundamentally at odds with any understanding of the American tradition of religious liberty that he has handed [Democrats] an issue, and they will use it.”

Indeed, Khan’s convention speech marked a concerted effort to present the Democratic Party and its presidential candidate, Hillary Clinton, as a force for tolerance and inclusion.

Clinton’s Record on Religious Freedom

In her acceptance speech, Clinton attacked Trump’s policies and comments as intolerant and dangerous.

“We will not ban a religion,” she vowed, in a reference to Trump’s proposals. “We will work with all Americans and our allies to fight terrorism.”

But she made no effort to reach out to Americans who did not share her views on abortion rights and marriage equality. And while she acknowledged the power of political rhetoric to divide or unify Americans, she made no attempt to rein in activists who have labeled opponents of same-sex “marriage” as “haters” and “bigots” and even blamed “the Christian right” for the terrorist attack on an Orlando nightclub in June.

Clinton has not specifically referenced the platform’s language on religious freedom, but her public record on abortion and “LGBT rights” suggests that it reflects her own views.

Last year, as the passage of Indiana’s state Religious Freedom Reformation Act (RFRA) sparked a firestorm, Clinton tweeted: “Sad this new Indiana law can happen in America today. We shouldn’t discriminate against ppl bc of who they love.”

If Clinton embraces “a progressive vision of religious freedom that respects pluralism and rejects the misuse of religion to discriminate,” as her party’s 2016 platform stipulates, pro-life Americans will be justifiably worried.

CUA’s Lewis pointed to a number of problems with the platform language.

Inclusion of the phrase “misuse of religion to discriminate,” he noted, offers a “completely open-ended invitation to truncate religious freedom in the name of political ideology and to compel people to act against their consciences.”

As Lewis sees it, the platform introduces a “much more restrictive idea of religious freedom than that understood by the Supreme Court and seems to take the First Amendment hostage to political ideology.”

Catholic Teaching on Religious Freedom

However, Lewis also made clear that religious liberty is not absolute. Indeed, Catholic social doctrine teaches that religious freedom is “not unlimited.”

He noted that Dignitatis Humanae, the groundbreaking document issued by the Second Vatican Council, “recognizes public order and morality as possible reasons to limit religious freedom, which suggests that some types of conduct that are opposed to public order or substantively immoral are not immune from regulation simply because they are part of religious practice.”

That said, he concluded that “the language in the platform goes far beyond this and really seems to me to threaten religious freedom for reasons that are simply political.”

Looking ahead, pro-life activists and Christian leaders fear that a “progressive vision of religious freedom” could justify civil rights legislation that denies conscience protections for physicians, pharmacists, and educators who abide by Church teaching on abortion or gender identity issues.

This year, for example, the HHS Office of Civil Rights proposed new anti-discrimination protections under the Affordable Care Act that would require health-care providers to perform “gender reassignment surgery” if requested.

The U.S. bishops have also taken note of new threats to the conscience rights of pro-life physicians could soon be forced to participate in abortions or risk losing their licenses to practice medicine.

“The vast majority of medical personnel — 85% of OB-GYNs, specifically — do not want to be involved in abortion,” said Cardinal Timothy Dolan of New York and Archbishop William Lori of Baltimore, as chairmen of the U.S. Conference of Catholic Bishops’ Committee on Pro-Life Activities and Ad Hoc Committee for Religious Liberty, respectively, in a July 13 statement that celebrated the passage of the bipartisan Conscience Protection Act of 2016 in the U.S. House of Representatives.

Balancing Religious Freedom and Other Interests

But even as religious freedom activists gird for more litigation on such matters, legal experts remind Americans that the U.S. Constitution, legal precedent, and a tradition of religious tolerance provide the foundation for judicial decisions that balance state and other interests with respect for conscience rights.

“Dating back to the founding, there is a long history of accommodation for conscientious objectors, even during times of peril to national security,” Eric Baxter, senior counsel to the Becket Fund, told the Register, in comments that described the outcome of key religious freedom cases, but did not address election-year campaign issues.

“We can accommodate religious believers without endangering the public interest,” said Baxter, as he noted Becket Fund clients of all faiths that successfully challenged federal, state and local laws.

The Becket Fund also represents the Eternal World Television Network in its legal challenge to the HHS mandate. The Register is a service of EWTN.

The public interest group has been involved in cases that prompted little controversy, such as a Muslim’s legal challenge to Arkansas regulations that barred prisoners from growing a beard.

However, Baxter emphasized that religious beliefs that touch on hot-button issues should also be respected.

He noted that when Hobby Lobby filed its legal challenge to the HHS mandate, the administration warned of a “parade of horribles,” including the denial of access to free contraception for Hobby Lobby employees.

But two years after the craft store chain won a landmark victory, the controversy is barely mentioned. And though Baxter admitted that a politically charged case poses a greater challenge for legal counsel, he still believes that solutions can be found that respect the legitimate concerns of all parties.

“Religious liberty is not a zero sum game,” he said. “In a pluralist society we can accommodate religious beliefs and still carry out other important functions.”

This is the message Americans need to hear in an election year that has generated a good deal of heat, but not much light on the full meaning of religious freedom and tolerance.


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