Had Jeremiah Wright’s antics not forced Barack Obama to expound famously on race in 2008, the most significant speech of his short Senate tenure would have been his 2006 remarks on religion and democracy. Appearing before Call to Renewal’s conference on “Building a Covenant for a New America,” Obama urged Christian activists and Democratic voters to reconsider the relationship between church and state. Mankind may have grappled with our dueling obligations to Caesar and
Creator—the City of Man and the City of God—for millennia, but the time finally had come for a “serious debate.”
“I think we make a mistake when we fail to acknowledge the power of faith in people’s lives,” he said. “And I think it’s time that we join a serious debate about how to reconcile faith with our modern, pluralistic democracy.”
Well, if a decade ago America lacked “serious debate” on how to reconcile faith with democracy (or, one might add, on how to reconcile democracy with faith), then Obama surely has spent the intervening years doing everything possible to force what he might call a “national conversation.” That conversation is not just about faith and democracy, but also about the non-democratic parts of our government, the administrative agencies promulgating new laws and the courts creating new civil rights, which in turn collide with religious freedom, raising questions our country is only beginning to grapple with.
One such conversation occurred in April, between Justice Samuel Alito and Solicitor General Donald Verrilli. As the Supreme Court heard oral arguments in Obergefell v. Hodges, on whether the Fourteenth Amendment protects same-sex couples’ right to marry, Alito asked Verrilli whether the creation of such a nationwide right might force religious organizations to make an impossible choice: either acquiesce in same-sex marriage or risk the philanthropic death sentence of losing their tax-exempt status. It was an obvious question and, in the aftermath of the IRS’s scandalous treatment of conservative groups, one for which the administration would be expected to have a simple, reassuring answer. But, astonishingly, the solicitor general replied with little more than a shrug: “It’s certainly going to be an issue. I—I don’t deny that. I don’t deny that, Justice Alito. It is—it is going to be an issue.”
Another recent conversationalist is Martha Minow, dean of the Harvard Law School. Last month, the school convened a conference on “Law, Religion, and Health in America.” It was occasioned by the Supreme Court’s decision last year, in Burwell v. Hobby Lobby, that the Obama administration could not use the Affordable Care Act to force certain corporate employers to subsidize their employees’ abortifacient contraceptives. In her remarks, Dean Minow warned that when “people of faith” are forced to choose sides in a conflict between their religious beliefs and national policies to the contrary, the faithful will sometimes choose God over country, and leave. “That would be sad,” she said, “since this country actually has been a haven for religious freedom really since even before its founding.”
Sad, yes, but: “On the other hand, there will be some issues where the values of this country will run into conflict with some people’s religious views, and if they can’t live with it, they should leave.” Our goal, she concluded, must be to find compromises where we can, so that the choice offered to religious believers won’t be “more all-or-nothing than it needs to be.”
A lot of conversations seem to go like this in the closing years of Obama’s presidency, where so much of his agenda returns us, over and over again, to the collision of government power and religious liberty. First and foremost, Hobby Lobby and cases that have followed it—Wheaton College v. Burwell; Little Sisters of the Poor v. Burwell; Priests for Life v. Department of Health and Human Services—make plain the constitutional difficulties inherent in a federal regulatory agenda that would force religious organizations and private employers to play a central role in providing contraceptives to third parties.
Elsewhere, concerted efforts by the administration and its allies not just to create and enforce a constitutional right to same-sex marriage, but to go still further and force third parties—such as the proverbial photographers and bakers—to personally and directly facilitate such weddings, raise increasingly stark questions of religious freedom under federal and state law.