By Ismail Royer

A couple of years ago I wrote about a secularizing trend in religious freedom jurisprudence that is pernicious precisely because it appears on its face to uphold religion in the public square while actually undermining it. This trend in law parallels the trend of the broader culture insofar as they both respond to and help drive secularization.

An example of this trend, I wrote, was the tendency in religious freedom advocacy (and therefore the case law that it influences) to reframe Christianity as an identity group deserving the same protections as other groups. This was illustrated by Shurtleff v. City of Boston, a Supreme Court case in which a Christian organization successfully argued that it should be able to fly a flag representing its faith at city hall to “commemorate the contributions of one of Boston’s diverse communities to the City and the Commonwealth.” The city’s refusal to allow the flag to be flown while allowing other groups to fly their flags, the Court found, violated the Christian group’s right to freedom of speech.

Another illustration of secularization in religious freedom jurisprudence I pointed to was American Legion v. American Humanist Association, in which the Court allowed the State of Maryland to leave a century-old cross monument on public land. To do so would not violate the Establishment Clause, it held, because “[e]ven if the original purpose of a monument was infused with religion, the passage of time may obscure that sentiment.” After all, reasoned the Court, “[a]s our society becomes more and more religiously diverse,” such monuments may be retained “for the sake of their historical significance or their place in a common cultural heritage.” As time passes, these objects become “features of a community’s landscape and identity” that a community may continue to value even when it no longer “embrac[es] their religious roots.”

Both friends and adversaries of religion in the public square see in Shurtleff, American Legion, and similar court victories a resurgence of Christianity. What they really represent is the reduction of Christianity, the very wellspring of American political order, to cultural heritage and identity, and of the reduction of the Church to one identity group among others vying for recognition and power. It represents the loss of truth and meaning which is correlated with the decline of classical jurisprudence rooted in higher law and the common good, a phenomenon I have also written about.

Another sort of court victory for religious plaintiffs that marks the decline of religion is that in which religion is subsumed into speech. In such cases, the government’s burdening of a plaintiff’s religious practice or belief is framed as an infringement on his freedom of expression. This is in fact a dominant trend in religious freedom jurisprudence and correlates with an enervated Free Exercise Clause, even when it is effectively deployed as a litigation strategy by religious plaintiffs.

An illustration of this is the recent opinion by the U.S. Court of Appeals for the Eleventh Circuit in Jarrard v. Sheriff of Polk County. In that case, a Christian evangelist who served as a volunteer minister to inmates in Georgia prisons and jails was removed from his position at a county jail because officials there disagreed with his doctrine that baptism is necessary for salvation. The chaplain sued for retaliation under both the Free Speech Clause and the Free Exercise Clause of the First Amendment. The district court granted summary judgment to the jail officials under a legal doctrine holding that government employers can control their employees’ speech and the chaplain appealed. With our partners at the Jewish Coalition for Religious Liberty, we filed a friend of the court brief in support of the chaplain.

In holding for the chaplain, the Eleventh Circuit ignored the plaintiff’s Free Exercise claim and analyzed his case entirely within the framework of the Free Speech Clause, holding (as the Supreme Court did in Shurtleff) that the state officials had engaged in improper viewpoint discrimination. A victory for the plaintiff, to be sure.

Cases like Jarrard represent a shift in our civilization’s understanding of religion. As one scholar wrote, the view that “worship is speech would have struck most people as a distinctly odd proposition until quite recently.” While no doubt the chaplain was engaged in speech as he evangelized for his doctrine of salvation, and no doubt that speech was constitutionally protected, the subtle conceptual movement lies in seeing his religious exercise as fundamentally a species of speech rather than as a unique dimension of human experience.

These trends in jurisprudence and culture are, in turn, related to the turning of our gaze from the heavens to the earth as the ultimate source of meaning. It is a profound loss, made all the more difficult to recover from if we perceive the steps along the way as victories. 

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Ismail Royer serves as RFI’s Director of Islam and Religious Freedom.