'Christian Bigots' and 'Muslim Terrorists': Religious Liberty in a Polarized Age

LAW, FREEDOM, AND RELIGION: CONCEPTUALIZING A COMMON RIGHT (W. Cole Durham Jr., Javier Martínez Torron, and Donlu D. Thayer eds., Routledge, Jan. 1, 2021 Forthcoming)

U of St. Thomas (Minnesota) Legal Studies Research Paper No. 20-12

Posted: 15 Jul 2020 Last revised: 27 Jul 2020

See all articles by Thomas C. Berg

Thomas C. Berg

University of St. Thomas, St. Paul/Minneapolis, MN - School of Law

Date Written: 2020

Abstract

[This paper, a chapter contribution to a forthcoming book, is also part of a larger project, Religious Liberty in a Polarized Age. Paper draft available from the author.]

Religious liberty in America is in a troubled state. In recent years, debates over religious liberty have increasingly traced—even reinforced and intensified—disputes over underlying issues such as sexual morality, health policy, immigration, and national security. Progressive laws that may require religious cultural conservatives to facilitate conduct they oppose (LGBTQ nondiscrimination laws, the Obamacare contraception mandate) present conflicts in varying situations and call for varying results: but progressives and liberals increasingly oppose not just particular claims, but the very idea of giving any protection when the religious conduct in question is categorized as discriminatory. And although cultural conservatives claim the mantle of religious freedom, many of them—driven by actual or purported fears about terrorism and immigration—favor discrimination against Muslims through measures like “anti-Sharia” laws or President Trump’s ban on travel predominantly from Muslim countries.

These dynamics indicate that religious liberty has joined the list of issues that most sharply divide partisans. By now it is well established that America is deeply, increasingly polarized between competing political-cultural outlooks. After briefly summarizing the processes of ideological “sorting,” negative polarization, and political feedback loops that intensify the polarization, this paper identifies the damage when religious liberty becomes a contributing factor in polarization. Religious liberty protection is designed to reduce people’s fear and resentment of others—which in turn fuel polarization—by making room, as much as possible, for people of fundamentally differing commitments to live consistently with those commitments. This key purpose of religious liberty will fail, however, if debate over that protection simply replicates the underlying polarization of views. If anything, current religious-liberty disputes intensify the underlying fights.

Although the religious-liberty circumstances of Muslims and conservative Christians differ, the two share important features—including the fact that others view them with hostility, as “Christian bigots” or “Muslim terrorists.” I identify parallels between the two groups and argue that these parallels support recognizing substantial protection for both.

I then identify three points necessary for religious freedom protection to serve its key purposes. (1) Protection must take multiple forms, to respond to the many different potential threats to religious freedom. (2) Protection must be provided consistently; it must be given vigorously to all faiths. (3) Although protection must be strong, it must also have limits, set by the interests of others and of society, since ultimately society will be unwilling to respect religious freedom for violate others’ important freedoms. In applying these principles, I criticize the Supreme Court’s decision in Trump v. Hawaii, upholding the anti-Muslim-inspired travel ban, while also arguing for protecting nonprofit religious organizations in a number of cases involving LGBTQ nondiscrimination laws.

Note: This paper, a chapter contribution to a forthcoming book, is also part of a larger project, Religious Liberty in a Polarized Age. Paper draft available from the author.

Keywords: Religious freedom, Free exercise of religion, Muslim religious freedom, Travel ban Trump v. Hawaii, Religious neutrality, Religious hostility, Discrimination against religion, LGBTQ rights, Religious exemptions, Religious conservatives, Masterpiece Cakeshop case, Religious nonprofit institutions

Suggested Citation

Berg, Thomas Charles, 'Christian Bigots' and 'Muslim Terrorists': Religious Liberty in a Polarized Age (2020). LAW, FREEDOM, AND RELIGION: CONCEPTUALIZING A COMMON RIGHT (W. Cole Durham Jr., Javier Martínez Torron, and Donlu D. Thayer eds., Routledge, Jan. 1, 2021 Forthcoming), U of St. Thomas (Minnesota) Legal Studies Research Paper No. 20-12, Available at SSRN: https://ssrn.com/abstract=3651352

Thomas Charles Berg (Contact Author)

University of St. Thomas, St. Paul/Minneapolis, MN - School of Law ( email )

1000 La Salle Avenue
Mail # MSL400
Minneapolis, MN 55403-2015
United States

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