Rethinking Religious Liberty

An Interview with Melissa Rogers
Melissa Rogers at The Catholic University of America in Washington in 2015. (CNS photo/Bob Roller)

Melissa Rogers was executive director of the White House Office of Faith-Based and Neighborhood Partnerships under President Barack Obama. She is visiting professor at Wake Forest University’s School of Divinity, and a nonresident senior fellow at the Brookings Institution. Commonweal contributor John Gehring spoke to Rogers about religious liberty, LGBTQ equality, the Trump administration, and her new book, Faith in American Public Life.

John Gehring: Why did you want to write this book?

Melissa Rogers: A few reasons. The legal rules that apply to the role of religion in American public life have often been mischaracterized and misunderstood. I hope the book will help dispel some of those misunderstandings, which include the idea that the Supreme Court kicked religion out of the public square, or that public schools have to be religion-free zones. That is just not true.

I also wrote it as a call to action regarding certain threats to religious freedom and pluralism. The most serious and urgent threat is hostility and attacks against minorities in this country, including religious minorities. I hope more Americans will move from the sidelines to solidarity with individuals and groups being targeted.

JG: You start the book with Pope Francis’s visit to the White House in 2015, and note that President Obama didn’t want that visit just to be a photo-op, but to help inspire tangible policy. One way that happened, you write, was the Obama administration significantly increased the number of refugees the United States accepted. Why was that such an important victory?

MR: We face a global refugee crisis. Every nation has a moral obligation to do its part to address that crisis. President Obama believed the United States could and should do better. So we wanted to find a way for the nation to be both compassionate and secure. A lot of work happened in the administration to ensure we could welcome more refugees. We were able to do that with an eye toward Pope Francis’s visit. And with those moves, I think we were able to exert moral leadership and make a significant contribution to the global refugee crisis.

When we participate in global refugee resettlement we not only help advance human rights, but also prevent crisis and conflicts around the world, and strengthen our diplomatic toolkit. It was also a very proud moment for the kind of partnerships the government has with faith-based humanitarian organizations. These organizations demanded we do more, and then once we said we would, they came right along and said, “We’re going to help you do this.” It illustrated how partnerships with religious and other civil-society communities can contribute powerfully to the common good.

JG: The Trump administration is doing everything it can to end refugee resettlement. The administration’s Muslim ban specifically targeted a religious group. Attacks on synagogues and mosques have increased. You write that these types of challenges are “the most serious and urgent threat” to religious freedom today. Can you talk about that?

MR: Until President Trump took office, the United States was on track to reach President Obama’s goals on refugee resettlement, which would have been the highest number of refugees admitted to the country since 1994. But refugee admissions have dropped dramatically. In fact, zero refugees were admitted to the United States in October 2019, and an evangelical refugee-resettlement organization reports that that is the first time that’s happened in thirty years. In 2017, we had the second highest number of religion-based hate crimes in the United States ever, after only 2001 in the wake of the September 11 terrorist attacks. My Muslim friends tell me hostility toward them increases during the election season. It’s especially important for those of us who are not being targeted to hold our leaders accountable. There should be zero tolerance for fear-mongering, and an expectation that our leaders should be speaking out for religious liberty and security for all. We have government officials, including the person who has the bully pulpit, our president, engaging in fear-mongering on race, religion and ethnicity, and engaged in dehumanizing rhetoric and violent imagery.

JG: A major theme in your book is how the bedrock principle of religious liberty has become a deeply polarized, culture-war issue. Not long ago, under the Clinton administration, the Religious Freedom Restoration Act (RFRA) passed with bipartisan support. Today, discussions about religious liberty and conscience trigger very intense and different reactions from people on the left and right. How did religious liberty become so explosive?

 

MR: There are multiple factors, but RFRA laws and similar laws at the state and local level have sometimes been seen less as positive bipartisan measures as they were when they were first adopted, and more as an effort to stall or thwart civil and human rights such as LGBTQ equality. At the same time, we’ve seen increased polarization on a number of issues, and that has weakened our charitable impulses toward others who see key issues differently. To some extent that has also weakened our ability to even understand what the other side is saying and to have relationships across political or ideological lines.

JG: You noted recently on Twitter that Attorney General William Barr, a Catholic who often speaks about religious liberty, also prosecuted Scott Warren for his faith-based efforts to aid migrants on the border, and that the Trump administration has also tried to take land from a Catholic diocese for the border wall despite the diocese’s objections. Are these examples of hypocrisy or a different understanding of religious liberty?

Government officials err when they assume a religious belief or expression is insincere or merely a cloak for hate. That is wrong.

MR: One thing that troubles me is that administration officials such as William Barr never mention claims like these [Scott Warren] when they are talking about religious liberty. They mention claims about contraception, abortion, and LGBTQ rights that they are concerned about, but to my knowledge they have not mentioned religious freedom claims that would cut against policies that they endorse. We haven’t seen the administration make any effort to reconsider its positions in the face of strong religious objections. When the Obama administration’s agencies came out with a rule on the contraception mandate (the first religious exemption from that mandate), I and others raised concerns because we thought that exemption was too narrow. And that’s not because I have any objection to contraception. It was about the fact that some Catholic and even evangelical groups had objections to providing this as part of their healthcare plan. President Obama insisted that the policy be changed. The policy didn’t ultimately satisfy all those who objected, but it was a genuine effort to listen. I have not seen any similar effort by the Trump administration.

JG: While you’re critical of the Trump administration and how many on the right view religious-liberty issues, you also argue that sometimes liberals can get it wrong. You cite as an example language that the chairman of the U.S. Civil Rights Commission used in a 2016 report, where he talked about religious freedom as merely a code word for discrimination, intolerance, and homophobia. In your view, how do some progressives fail to appreciate the importance of religious liberty and conscience rights?

MR: Government officials err when they assume a religious belief or expression is insincere or merely a cloak for hate. That is wrong. At times, government officials will tell people their religious beliefs need to change. That is wrong too. Government officials are, of course, free to advocate for policies that conflict with certain religious beliefs, and they may and sometimes must deny certain requests for religious exemptions, but it’s emphatically not the place of the government to say that faith must change. It’s also a mistake for government officials to give the impression that they are calling into question or maligning an entire First Amendment right. There is room for everyone to do better here.

JG: Douglas Laycock, a scholar of religious-liberty law, told me we’ve reached a stalemate in trying to strike a balance between respect for religious liberty and LGBTQ equality. In his reading, religious institutions and LGBTQ advocacy groups have both become “deeply intolerant and have no respect for the rights of the other side. Both sides are dug in.” If that’s true, how do we hold out hope for common ground?

MR: There is no question it has become more difficult to find common ground on many important questions. At the same time, I tend to agree with Supreme Court Justice Elena Kagan, who recently said that we can still often find common ground if we reframe the question or split off a smaller question. When I was in the Obama administration, we did that on some issues related to partnerships between government and faith-based organizations. We couldn’t agree on some important issues like religious exemptions from certain civil-rights protections that apply to the use of taxpayer funds, but we looked at some other issues regarding protections for religious-liberty beneficiaries, and we found much more to agree about there. I agree it has become much harder, but we shouldn’t give up hope of finding common ground.

JG: One of the thorniest religious-liberty issues in the Catholic context is the question of whether adoption agencies run by the church should be required to place children with same-sex couples. In several states, Catholic agencies that receive government funding have pulled out of the adoption business after being told that they have to abide by state equality laws and place children with same-sex couples. The Catholic agencies say they are simply practicing what is consistent with the teachings of their faith and shouldn’t be penalized for that. Where do you come down on this question?

MR: First, when non-discrimination conditions require government grantees or contractors to serve beneficiaries and clients without regards to certain protected personal traits, my basic view is the government ought to apply those conditions uniformly. Second, so long as policies are neutral toward religion, and not targeting it and generally applicable, I don’t believe that they penalize faith; they simply insist that those who choose to accept taxpayer money to carry out certain tasks on behalf of the state comply with certain rules. The government does not substantially burden religious exercise when it insists, for example, that organizations that choose to accept government grants or contracts serve clients in accordance with such non-discrimination principles.

Third, having said those things, I think we should keep exploring a range of ways for governmental and non-governmental entities to help children who need foster and adoptive parents. I continue to believe there is a lot of common ground here if we’re willing to look for it and even think about how we can cooperate in this area in new ways.

JG: You’re a Baptist, and before joining the Obama administration you worked for the Baptist Joint Committee for Religious Liberty. How does coming from a Baptist tradition and perspective impact how you view these issues?

MR: I definitely think about it both as a Baptist and as a lawyer. The Baptist tradition, as a theological matter, strongly supports religious freedom for all, including the First Amendment prohibition on the governmental promotion of faith, and protections for free religious exercise. Our belief is that commitments of a religious nature have to be made voluntarily and without coercion, especially coercion by the state. Baptists in this country were once a persecuted minority and that experience remains with us. Our tradition also teaches that governmental promotion of religion harms everybody’s conscience, results in de-facto preferences for certain faiths, and undermines the faith that is favored.

JG: For all the complexities and tensions, your book makes a compelling case that religion has a vital role to play in public life. Encourage us in these difficult times and explain why we should continue to fight for that vision.

MN: We have a lot of polarization now, but every day we have people of different faiths and beliefs coming together on issues of shared concern, whether efforts to overcome poverty, seek racial justice, combat climate change, or welcome refugees. That work continues under the radar largely. It doesn’t get much attention, but it changes lives for the better and it makes our country a stronger one. I feel comforted and encouraged by that, and I think there can be more progress made in the future when we deal with some of the threats we’re facing on the national scene right now. This collaboration is due in part because of this remarkable system of religious freedom where people can come together from different faiths and beliefs and not just coexist but make common cause. To some extent, I think the threats we face, particularly because they are so bold and bald right now, have gotten our attention, and it may be making us appreciate something we might have taken for granted without these threats.

Published in the February 2020 issue: 

John Gehring is Catholic program director at Faith in Public Life, an advocacy group in Washington, and a former associate director for media relations at the U.S. Conference of Catholic Bishops. He is author of The Francis Effect: A Radical Pope’s Challenge to the American Catholic Church (Rowman & Littlefield, 2015) and a contributing editor to Commonweal.

Also by this author
Building Bridges at the Border

Please email comments to [email protected] and join the conversation on our Facebook page.

Must Reads

Religion
Books
Collections