MR: One thing that troubles me is that administration officials such as William Barr never mention claims like these [Scott Warren] when they are talking about religious liberty. They mention claims about contraception, abortion, and LGBTQ rights that they are concerned about, but to my knowledge they have not mentioned religious freedom claims that would cut against policies that they endorse. We haven’t seen the administration make any effort to reconsider its positions in the face of strong religious objections. When the Obama administration’s agencies came out with a rule on the contraception mandate (the first religious exemption from that mandate), I and others raised concerns because we thought that exemption was too narrow. And that’s not because I have any objection to contraception. It was about the fact that some Catholic and even evangelical groups had objections to providing this as part of their healthcare plan. President Obama insisted that the policy be changed. The policy didn’t ultimately satisfy all those who objected, but it was a genuine effort to listen. I have not seen any similar effort by the Trump administration.
JG: While you’re critical of the Trump administration and how many on the right view religious-liberty issues, you also argue that sometimes liberals can get it wrong. You cite as an example language that the chairman of the U.S. Civil Rights Commission used in a 2016 report, where he talked about religious freedom as merely a code word for discrimination, intolerance, and homophobia. In your view, how do some progressives fail to appreciate the importance of religious liberty and conscience rights?
MR: Government officials err when they assume a religious belief or expression is insincere or merely a cloak for hate. That is wrong. At times, government officials will tell people their religious beliefs need to change. That is wrong too. Government officials are, of course, free to advocate for policies that conflict with certain religious beliefs, and they may and sometimes must deny certain requests for religious exemptions, but it’s emphatically not the place of the government to say that faith must change. It’s also a mistake for government officials to give the impression that they are calling into question or maligning an entire First Amendment right. There is room for everyone to do better here.
JG: Douglas Laycock, a scholar of religious-liberty law, told me we’ve reached a stalemate in trying to strike a balance between respect for religious liberty and LGBTQ equality. In his reading, religious institutions and LGBTQ advocacy groups have both become “deeply intolerant and have no respect for the rights of the other side. Both sides are dug in.” If that’s true, how do we hold out hope for common ground?
MR: There is no question it has become more difficult to find common ground on many important questions. At the same time, I tend to agree with Supreme Court Justice Elena Kagan, who recently said that we can still often find common ground if we reframe the question or split off a smaller question. When I was in the Obama administration, we did that on some issues related to partnerships between government and faith-based organizations. We couldn’t agree on some important issues like religious exemptions from certain civil-rights protections that apply to the use of taxpayer funds, but we looked at some other issues regarding protections for religious-liberty beneficiaries, and we found much more to agree about there. I agree it has become much harder, but we shouldn’t give up hope of finding common ground.
JG: One of the thorniest religious-liberty issues in the Catholic context is the question of whether adoption agencies run by the church should be required to place children with same-sex couples. In several states, Catholic agencies that receive government funding have pulled out of the adoption business after being told that they have to abide by state equality laws and place children with same-sex couples. The Catholic agencies say they are simply practicing what is consistent with the teachings of their faith and shouldn’t be penalized for that. Where do you come down on this question?
MR: First, when non-discrimination conditions require government grantees or contractors to serve beneficiaries and clients without regards to certain protected personal traits, my basic view is the government ought to apply those conditions uniformly. Second, so long as policies are neutral toward religion, and not targeting it and generally applicable, I don’t believe that they penalize faith; they simply insist that those who choose to accept taxpayer money to carry out certain tasks on behalf of the state comply with certain rules. The government does not substantially burden religious exercise when it insists, for example, that organizations that choose to accept government grants or contracts serve clients in accordance with such non-discrimination principles.
Third, having said those things, I think we should keep exploring a range of ways for governmental and non-governmental entities to help children who need foster and adoptive parents. I continue to believe there is a lot of common ground here if we’re willing to look for it and even think about how we can cooperate in this area in new ways.
JG: You’re a Baptist, and before joining the Obama administration you worked for the Baptist Joint Committee for Religious Liberty. How does coming from a Baptist tradition and perspective impact how you view these issues?
MR: I definitely think about it both as a Baptist and as a lawyer. The Baptist tradition, as a theological matter, strongly supports religious freedom for all, including the First Amendment prohibition on the governmental promotion of faith, and protections for free religious exercise. Our belief is that commitments of a religious nature have to be made voluntarily and without coercion, especially coercion by the state. Baptists in this country were once a persecuted minority and that experience remains with us. Our tradition also teaches that governmental promotion of religion harms everybody’s conscience, results in de-facto preferences for certain faiths, and undermines the faith that is favored.
JG: For all the complexities and tensions, your book makes a compelling case that religion has a vital role to play in public life. Encourage us in these difficult times and explain why we should continue to fight for that vision.
MN: We have a lot of polarization now, but every day we have people of different faiths and beliefs coming together on issues of shared concern, whether efforts to overcome poverty, seek racial justice, combat climate change, or welcome refugees. That work continues under the radar largely. It doesn’t get much attention, but it changes lives for the better and it makes our country a stronger one. I feel comforted and encouraged by that, and I think there can be more progress made in the future when we deal with some of the threats we’re facing on the national scene right now. This collaboration is due in part because of this remarkable system of religious freedom where people can come together from different faiths and beliefs and not just coexist but make common cause. To some extent, I think the threats we face, particularly because they are so bold and bald right now, have gotten our attention, and it may be making us appreciate something we might have taken for granted without these threats.