Will the Safety Valve Hold?
Bettina Krause November/December 2024As a nation we’re on the cusp of a dark new era of religious persecution—or at least that’s the impression I get when I read fundraising emails sent from various religious liberty advocacy groups.
“Our freedoms are on the line!” warns one message. “Are you concerned about the erosion of religious liberty?” asks another. “Your God-given right to live according to truth continues to come under threat—challenging our right to freely live out our faith.”
In recent years these fears seemed to have gained traction within Christian circles. If you spend any time browsing Christian media, you’ll likely encounter ideas that echo those found in Rod Dreher’s 2017 book The Benedict Option. Drawing in part from the writings of an early Christian monk, Dreher argues that our culture is headed for “post-Christian barbarism” and that Christians should prepare to “embrace exile.”
Of course, we struggle today with real religious liberty problems in both law and policy—that’s why this magazine exists. But does the evidence suggest an impending Dark Age for Christianity? Are our religious freedoms so precarious that exile will soon be our only viable option?
Well, if you look only at current levels of constitutional protection for religious free exercise in America, then the answer must be a simple no. And if you doubt that, consider these recent U.S. Supreme Court decisions:
Departing from decades of rulings to the contrary, the Court said in Kennedy v. Bremerton (2022) that a public school teacher can kneel and pray publicly at school-sponsored events.
In a line of cases culminating in Carson v. Makin (2022), the Court has upended establishment clause jurisprudence. Now the Court says a state not only may directly fund religious schools but that, in some circumstances, the free exercise clause demands it must.
The Court also addressed a key religious freedom concern in 303 Creative LLC v. Elenis (2023). It held that a small-business owner can’t be compelled by state antidiscrimination laws to speak a message against her deeply held religious convictions.
And then, of course, there’s Burwell v. Hobby Lobby Stores (2014)—a case that would likely confound those who ratified our Bill of Rights back in 1791. Here the Court held that even a nonhuman—a closely held for-profit corporation—can exercise religious liberty rights.
Which brings us back to this strange paradox: If, by any objective measure, constitutional protection for religious free exercise in the United States has never been stronger, then why are so many Christians living with fear of imminent religious persecution?
A True Threat
Here’s why. Conservative Christianity, once the uncontested custodian of America’s religious and moral norms, now sees a future in which most Americans don’t count themselves among the faithful. Quite naturally, it now has a well-founded fear of political majorities; a fear of what will be attempted if the “other side” gains unfettered political power. These are not imaginary threats. On the pages of Liberty we track examples of political and legal hostility toward conservative religious groups and institutions.
But here’s something we shouldn’t forget. It’s not only conservative Christians who fear political majorities. Those of the opposite end of the spectrum also fear what could happen should conservative Christians gain political control. There’s no mystery about why Project 2025 rocketed to notoriety as a potent political talking point in our recent election season. It fit perfectly with a narrative that many Americans already believe—that some Christians are prepared to take no prisoners in their efforts to remake America in their own image.
James Madison had a prescient fear of “overbearing majorities.” Writing in Federalist Paper No. 10, he foresaw the dangers of an America in which “the public good is disregarded in the conflicts of rival parties; and . . . measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”
Today, regardless of whether an “overbearing majority” skews politically left or right, the danger remains the same: that, when moral certainty combines with political power, the justice rights of the “minor party” will be swept aside.
Take, for instance, the frequent battles over LGBTQ nondiscrimination, where voices from both the political left and right try to shrink complex policy questions into a simple binary choice: my way or the highway.
On one side, we hear some advocates refusing to acknowledge the authenticity of any religious belief that holds to a traditional understanding of human sexuality. These “religious convictions,” we’re told, are always a cover for bigotry and hatred.
And then, on the other side, we hear some Christians refusing to back down from their view that American law should always perfectly reflect their own religious morality.
With this kind of zero-sum rhetoric, is it surprising that the stakes around political power in America feel so extraordinarily high?
Lowering the Pressure
Fortunately, we already have a constitutional safety valve that’s uniquely fitted to meet the challenges of 2024. It’s a valve that can help release some of the pressure that has built up around culture-war issues, and it can help protect the justice rights of the “minor party” from an “overbearing majority” of any religious or ideological motivation.
Unfortunately, though, it’s also a valve that has been weakened in recent years.
What is this safety valve? It is the balanced operation of the free exercise and establishment clauses of the First Amendment. And the emphasis here is on balanced because the real constitutional magic happens only when these two clauses work together. When this happens:
- People and institutions feel confident that their right to live by their faith-shaped commitments, however unpopular or out of step with majority views, will be taken seriously and strongly protected.
- All Americans—of different religions, or none—feel confident that the establishment clause has teeth; that the state will be prevented from preferring one religion over another, or religion over nonreligion; and, that citizens of all faiths and none will be equally protected and valued.
The two religion clauses of our First Amendment, operating in tandem, represent the “both/and” genius of our unique religious freedom regime. They tell us that we can both enforce the establishment clause without being hostile to religion, and rigorously protect religious free exercise without favoring one religion above others.
Ironically, some of those recent strong wins for conservative Christians at the Supreme Court that I mentioned above have added to the growing imbalance between the free exercise and establishment clauses. The Court has expanded the power and reach of religious free exercise rights, but it has done so at the expense of vital, longstanding establishment clause restraints.
Will balance be restored? Until it is, our culture-war policy standoffs will become even more entrenched, and our collective national dread of “overbearing majorities” will continue to grow.
Article Author: Bettina Krause
Bettina Krause is the editor of Liberty magazine.