That same day, Trump’s Religious Liberty Commission delivered a full draft of its 224-page report, the centerpiece of which is “12 Recommendations to Strengthen Religious Liberty for All Americans.” Those recommendations include the creation of a Justice Department “religious liberty task force,” production of “Know Your Rights” posters, repealing the Johnson Amendment, and creating “religious liberty violation reporting hotlines/online portals.”
The report itself is, as legal scholar Micah Schwartzman has put it, “an embarrassing document” (although “shameless” might be more fitting). Still, as we have learned and relearned over the past decade, government officials do not have to be thoughtful, competent, or serious to do real damage. Slapdash and unserious as the report might be, it does its job: laying out how to use the cause of religious liberty to advance right-wing goals.
The commission’s report offers many legal and policy suggestions, but it also seeks a broader cultural shift. “Safeguarding religious liberty,” it claims, “requires more than defending legal rights after they have been violated. It requires cultivating a culture that understands why those rights exist in the first place.” This mission demands that Americans respect religious liberty and the rights it affords, but first they must celebrate and value religion itself.
Here, they sidestep the fact that private benefits do in fact conflict with public goods—when business owners discriminate against their potential clients, when tax dollars are funneled to discriminatory private institutions and away from public schools, or when religious groups flout public health mandates during a pandemic—and instead assert that, because religion is ultimately good, religious liberty benefits everyone. If religion is “an essential aspect of what it means to be human,” as the report claims, then it follows that it would be privileged at least as much as, if not more than, other aspects of one’s humanity. Thus, those institutions that foster religion are not at odds with, or even really separate from, state institutions: Church and state should not be completely separate but, “in reality,” should “strengthen and support one another.” There is no wall between the two, the commission concludes, but a “bridge.”
These anecdotes make up much of the report, the final recommendation of which is: “Honor the courage of religious liberty heroes through creating a Presidential Medal of Religious Liberty and First Freedom Hero Awards to recognize Americans who stand up for religious freedom and play an indispensable role in protecting citizens’ Constitutional rights.” Chapters conclude with pictures from the hearings of these heroes. It reads like a book of martyrs with policy recommendations.
Without discounting (or taking too seriously) Shea’s feelings, there is something poignant in stating so starkly that when he was not in the majority he “felt completely alone.” In the nation the commission hopes to create, Shea’s rights would not simply be protected; so too would his feelings. The commission wants Americans to be proud of religion, and of religious liberty. Perhaps even more than wanting to feel pride, they want some people not to feel shame. They want anti-sociality without consequent social stigma. As religious studies scholar Donovan Schaefer has written, for some conservatives, “it becomes easier to repudiate shame altogether than respond to the moral demands placed on them.”
Even in this boom time for religious liberty, with religion’s stock going up, some claimants still lose their cases. In fact, the named claimant in Landor v. Louisiana Department of Corrections, the most recent religious freedom case at the Supreme Court, lost. And a landmark law—2000’s Religious Land Use and Institutionalized Persons Act, or RLUIPA—was significantly restricted. Naturally, it was a case that spelled out exactly who could expect to enjoy religious freedom and who should not.
The Religious Liberty Commission’s report—in a draft issued three days after the Landor decision—says DOJ “should issue updated guidance on how [RLUIPA] provides incarcerated individual with the right to receive reasonable religious accommodations while incarcerated.” To what end? With what effect? Justice Ketanji Brown Jackson wrote in her Landor dissent that “state-empowered prison officials will have little incentive to abide by federal law.” It is hard to imagine that DOJ will effectively cultivate a culture of respect for religion and religious liberty in a case like this. Will prisons hang “Know Your Rights” posters in common spaces? Will wardens undergo religious liberty trainings that would prevent such an incident? Will incarcerated persons call the hotline? The recommendations seem to be for Shea Encinas and his parents more than Damon Landor.
The Public Religion Research Institute has found that 11 percent of Americans are “adherents” to Christian nationalist ideas and 21 percent are “sympathizers.” Christian nationalism is correlated with support for religion in general and “Judeo-Christian values.” In a 2021 poll on religious liberty, PRRI found that 10 percent of Americans completely agree and 21 percent somewhat agree with the statement, “In the U.S., when there is a conflict, the rights and religious freedom of Christians have priority over the rights and religious freedom of non-Christians and non-religious Americans.” Perhaps this is the “culture of Christian Nationalism” of which Perryman warns. About a third of Americans, then, support some kinds of favorable treatment for Christians. It is reasonable to think that the hotlines are for them—or, at least, that they’ll be frequent users.
While Christian nationalist ideology might be a factor, the Religious Liberty Commission is better understood as a right-wing project. If its goal is to install Christian supremacy, it is only as a route to empower private actors to subvert the public good. It seeks to exempt certain people—Christians, yes, but more importantly conservatives—from public accountability, and from feeling bad about abridging the civil rights of disfavored groups. It advocates siphoning funds from public schools and rerouting them toward private institutions, or “creating a robust system of universal school choice” and “securing parental rights.” It encourages citizens to surveil and report, rather than tolerate, their neighbors. It recommends that DOJ “develop a dedicated Religious Liberty Task Force,” whose tasks would include issuing cease-and-desist letters to public school districts with trans-inclusive policies. It seeks to create a culture of fear and suspicion and, in so doing, alleviate the fears of anti-pluralists, their feelings of loneliness, exclusion, and shame. Throughout, the message is clear: Get religion. If you don’t, the commission suggests, it just doesn’t seem to work out, does it?
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