How Religious Ministries Can Remain Free to Serve

On Thursday near Capitol Hill, the Heritage Foundation hosted what has become an annual anti-poverty summit. Between Senators Ben Sasse and Tim Scott, I moderated a panel with Eric N. Kniffin, an attorney with the Religious Institutions Group, at Lewis Roca Rothgerber LLP, and Roger Severino, director of the DeVos Center for Religion and Civil Society at the Heritage Foundation. Kniffin is the author of a new report “Protecting Your Right to Serve: How Religious Ministries Can Meet New Challenges without Changing Their Witness.”

Kathryn Jean Lopez: Why do you mention the sexual revolution in the first paragraph? Is this really what recent religious liberty clashes are about? What about equality? Fairness? Tolerance?

Eric N. Kniffin: The sexual revolution is part of the story, to be sure, but there is nothing new about clashing views of sexual morality. What is new here, as I have tried to show, is government’s attempts to suppress central teachings of the major religions in the country. I believe University of Virginia law professor Doug Laycock is right that this is a new thing in the American experience.

This boldness, where Hillary Clinton is willing to declare that “religious beliefs . . . have to be changed,” has implications far beyond the sexual revolution. The real issue is not sexual politics but how far the government can reach into private associations. As Becket Fund president Bill Mumma recently said in a Bill McGurn column, “if the government is willing to put its boot on the neck of an order of nuns, who’s safe?”

Lopez: Your report might be seen by some as evidence of “bigots” trying to game the system. What might you argue to make the case for religious liberty?

Kniffin: Unfortunately, some people have begun to put “religious liberty” in scare quotes, as though this core First Amendment right is little more than a license to discriminate. I think this sort of cynicism is inaccurate and unwarranted. That certainly is not true of the religious clients I have had the privilege of working with.

In the report, I encourage religious groups to go beyond merely listing the rules their employees must follow. They should strive to explain how belief and conduct requirements are tied to the group’s religious commitments and to its religious mission. And they should aim to do so in a way that not only their employees but also the general public can understand. This sort of transparency is important and helps to address the notion that religious adherents are simply bigots.

Lopez: Could a win for the Little Sisters of the Poor change not just that particular mandate, but also the premise of your report?

Kniffin: I think it is crucial that the Supreme Court affirm that the Little Sisters of the Poor, and not the federal government, gets to decide when a federal regulation burdens their religious exercise. But it will take more than a favorable decision to reverse the tide. Recall that the Supreme Court has in recent years defended religious liberty against government overreach in Hosanna-Tabor (2012), Hobby Lobby (2014), and Holt v. Hobbes (2015). Those cases have not ended the attacks on religious liberty, and I do not see why the Little Sisters case would be different.

Lopez: “Despite recent hostility toward some religious groups, American law and culture still reflect a strong commitment to religious liberty.” Then why sound the alarm as you seem to by the very nature of the report?

It is crucial that the Supreme Court affirm that the Little Sisters of the Poor, and not the federal government, gets to decide when a federal regulation burdens their religious exercise.

Kniffin: The Hobby Lobby case and the Little Sisters of the Poor case both center on the Religious Freedom Restoration Act, a law that was passed almost unanimously in a Democrat-led Congress and signed into law by President Bill Clinton in 1993. RFRA remains an important law, but as we saw in clashes over state-level RFRAs in the past few years, these important principles no longer enjoy broad bipartisan support.

Lopez: What worries you most on the religious liberty front for religious ministries?

Kniffin: I am afraid that the government will be successful in pushing religious groups out of the public square and out of public service.  

Lopez: Should a school ever have the right to fire a teacher who becomes pregnant out of wedlock? If they’re Christian isn’t this a potentially grave hypocrisy?

Kniffin: I believe the Supreme Court got it right in Hosanna-Tabor: under the First Amendment’s Establishment Clause, the government cannot interfere with a church’s or religious school’s judgment about which people are qualified to teach or model its faith for others. Of course, this rule means the government will not have the power to correct certain injustices, just as the Fourth Amendment means that some guilty people will go free. But fortunately most religious bodies do a good job of policing themselves and addressing injustices. 

Lopez: At whom is your report mainly directed?

Kniffin: I wrote this paper primarily for those who have been called to serve in leadership in churches and other religious organizations. I believe that as a matter of good stewardship, religious leaders need to understand the times we are in and take action to protect their organization’s ability to operate according to its convictions. 

Lopez: Could policymakers benefit from reading it?

Kniffin: Yes. While I wrote the paper primarily to encourage and equip religious organizations, the report could be a valuable resource for legislators and other elected officials who want to better understand where additional religious liberty protections may be needed.

Lopez: Do you think present hostilities toward religion in culture and politics will lessen or cease down the road?

Kniffin: In the short term, I expect that the attacks on religious liberty will continue and only grow worse. In the long run, I am hopeful that we can regain our commitment to religious liberty and that as a society we will better appreciate the contributions religious institutions make and give them the space and protection they need to serve.