January 2020 Church & State Magazine - January 2020

Faith, Freedom And The Law: A Conversation With Church-State Scholar Melissa Rogers

  Faith, Freedom And The Law: A Conversation With Church-State Scholar Melissa Rogers

Melissa Rogers is an attorney and professor who specializes in church-state relations. Her new book Faith in American Public Life (Baylor University Press) was published in October. In this Q&A with Church & State Editor Rob Boston, Rogers discusses the book and addresses some current church-state controversies.

The book has received many positive reviews. Randall Balmer, John Phillips Professor in Religion at Dartmouth College, called Faith in American Public Life, “A careful and meticulous study, one that has enormous value to scholars but also to general readers who are interested in this important topic. What sets this book apart is the careful scholarship as well as the breadth of the treatment, taking the analysis up to the present. Rogers covers all of the relevant cases, providing historical as well as cultural context.”

Faith in American Public Life is available through online booksellers such as Amazon and Barnes & Noble as well as at bookstores.

Q. You’ve worked in this space for a long time – as an attorney for the Baptist Joint Committee for Religious Liberty, as an adviser on faith-based initiatives in the Obama White House and as a professor at Wake Forest University’s Divinity School. Why did you decide to dedicate your life to the issue of religious freedom?

Rogers: As a child, I learned about the theological and legal importance of church-state separation and religious freedom while I sat in pews at Baptist churches. Baptists had once been a persecuted minority, I was told, and, for that reason and others, we have both a religious and civic obligation to defend religious freedom for all people, including the smallest religious minorities and people who are not religious. At our best, Baptists have done so, including calling for a robust interpretation of both the no-establishment and free exercise clauses of the First Amendment.

After graduating from law school and spending some time at a D.C. law firm, I began to do pro bono work for what was then known as the Baptist Joint Committee on Public Affairs, now known as BJC. Subsequently, the late James Dunn and Brent Walker were kind enough to offer me my first job working on these issues, providing me with an opportunity to combine my love of the law and of my faith. The right to religious freedom is a foundational aspect of human dignity, one that holds great importance for me as an American and as a Baptist.

 While our legal system certainly is not perfect, it has produced remarkable freedom and also created conditions in which religion can be vital and people of diverse faiths and beliefs can join together to push the country to new heights. I’m thankful for all, from the right to the left, who made, and continue to make, space for me to work with them on shared concerns in this area, including my friends and colleagues at Americans United and at the BJC.


Q. What do you hope to achieve with your new book?

Rogers: I hope to help dispel some common misconceptions about the legal rules that define the relationship between religion and government. It’s often said, for example, that the Supreme Court has kicked religion out of the public square. That’s simply not true. I also call attention to certain threats to religious freedom and pluralism, the most urgent of which is the targeting of minorities, including religious minorities, for hostility, discrimination and even attacks.  Other threats include ones to certain traditional church-state barriers. Some on and off the United States Supreme Court, for example, are urging the court to overturn decades of precedent to allow the government to become more involved in religion through state-sponsored religious expression. If it does, minority faiths will be discriminated against. The religion that receives the state’s backing will also be harmed. When the government promotes religion, it usually warps and weakens faith, including by suppressing messages that are critical of the state. 


Q. The book opens with a brief historical overview. Thomas Jefferson’s famous “wall of separation between church and state” looms large over this discussion. In 1985, Wil­liam H. Rehnquist, then an associate justice, attacked the metaphor as “useless” to judging. On the other hand, former Justice Sandra Day O’Connor warned about the consequences of removing bricks from the wall. Where do you stand on Jefferson’s metaphor? Is it still useful?

 Rogers: I’m certainly a supporter of church-state separation. When we use metaphors, however, I think we ought to say what they mean, otherwise, we can be misunderstood. To me, church-state separation does not mean that religion and government can’t have anything to do with one another. Instead, it means that the two sectors – religion and government – must be meaningfully independent from one another.


Q. Let’s talk about some specific issues. Your chapter “Faith and 1600 Pennsylvania Avenue” examines how presidents can balance their personal faiths with the need to serve a country of diverse faith and non-faith perspectives. You put forth some recommendations for all political leaders in this area. Can you touch on some of those for us?

Rogers: The first suggestion I make is for our presidents to affirm that there are no second-class faiths under our Constitution. I also recommend that government officials recognize that their job is not to promote religion. That is the job of religious organizations and individuals themselves.  Rather, government officials should promote the common good. I also encourage both government officials and religious leaders to listen to the good counsel of the Rev. Dr. Martin Luther King, who said the church “is not the master or the servant of the state, but rather the conscience of the state.” The religious sector cannot serve as the conscience of the state if it isn’t meaningfully independent from the state.


Q. Some business owners are claiming they have a right to deny services to certain individuals, usually members of the LGBTQ community, on the basis of religious belief. Where do we draw the line here?

Rogers: In the Masterpiece Cake­shop case, I thought Justice Kagan got it right: The government must be neutral toward religion, and a place of public accommodation, one that is subject to civil rights laws like Masterpiece was, cannot simply turn away a couple of the same sex when it would not do the same to an opposite-sex couple. Having said that, the facts of each case need to be carefully considered, and common-ground solutions to conflicts should always be sought before litigating.


Q. You worked in the faith-based office under President Obama. Many advocates of church-state separation find this initiative problematic. Is it possible to have a faith-based initiative that respects the separation of church and state?

Rogers: I think it’s possible. It requires a commitment from the top on down, however, to respecting the religious guarantees of our Constitution, both in letter and in spirit.  In the book, I try to spell out what that means with some particularity.

During the Obama administration, we added protections for the religious liberty of social service beneficiaries and reformed some other rules in this area. We did so at the behest of a diverse working group that included Americans United’s former executive director, Barry Lynn, as well as a former member of the George W. Bush ad­ministration. As your readers know, the Trump administration is undoing much of that work, without any consultation of that group and without making any effort to search for common ground. I hope future administrations, whether Republican or Democratic, will restore these protections.


Q. Your book speaks very powerfully about the issue of religious discrimination. Despite the guarantee of religious freedom found in the First Amendment, our country has been through periods of discrimination in the past that targeted certain religious groups. We seem to be going through another one now with Muslims as the target. Are you optimistic that we’ll come through this period with our core value of religious freedom intact?

Rogers: Yes, but it will require more Americans to move from the sidelines of this debate to solidarity with the people who are being targeted. One easy but important thing everyone can and should do is hold elected leaders responsible for any dehumanizing language they use and any fearmongering on factors such as religion, race or ethnicity. Beyond that, I hope more Americans will encourage elected leaders to take specific steps to support security and freedom for all, like making public statements to that effect, meeting with diverse coalitions to hear their views and calling out their colleagues when necessary. When constituents contact their elected leaders to express their concerns or urge them to take positive steps, it can make a real difference. Some Americans are privately lamenting troubling tactics but have not yet gone public with their concerns – that has to change. Especially given the challenges we currently face, it’s essential – a requirement of citizenship, I believe – that we do everything we can to protect the lives of our neighbors and to ensure that everyone can practice their faith without fear.


Q. The Supreme Court has accepted an important case dealing with taxpayer funding of religious schools. Some observers believe the court might actually rule that in certain cases, religious institutions have a constitutional right to public support. What are your thoughts about this type of funding? Is it ultimately dangerous for religious groups to rely on government aid?

 Rogers: For all the reasons mentioned earlier, I think it’s dangerous for religious organizations to become dependent on taxpayer funds. I oppose any change to First Amendment doctrine that would allow religious bodies to use government grant or contract funds (taxpayer funds) for religious activities or items (which would not be good for the state or for religion, in my view) and support precedent that allows states to have laws and policies that are stricter than the First Amendment’s Establishment Clause so long as they do not violate the Free Exercise Clause.  

As I say in the book, the United States Supreme Court has wisely drawn a line prohibiting religious use of government grant or contract funds. But, under the newly configured court, that line may be vulnerable. Support may be growing for the notion that the Constitution not only permits but requires the government to allow houses of worship and other religious entities to use such aid for religious items and activities, if doing so could be said to serve some secular purpose and if grants are given to a broad range of religious and nonreligious bodies alike. A ruling of this kind would have the head-spinning effect of transforming what has long been prohibited by the Establishment Clause to be required by the Free Exercise Clause. I’m deeply concerned about such trends because I believe they would endanger freedom and the independence and vitality of faith.


Q. Polls show that growing numbers of Americans identify as “nones,” people who are either non-believers or hew to spirituality outside of a faith community. Christians now account for 65 percent of the population, and that number is expected to drop in the years to come. What sort of challenges does this type of “radical pluralism” present to our country?

Rogers: This is a notable trend, and it will require Americans to listen to and work with one another more carefully, which is a tall order right now but one that is not out of reach. When I worked in the Obama administration, for example, we forged partnerships with and among not only Seventh-day Adventist and Sikh communities but also the Secular Coalition for America. And we found that all of these communities, plus many more, could and would collaborate effectively on shared concerns, like serving people in need. We can cooperate across our deepest differences, but it will require all of us to work at it. Our Constitution, which promises equal protection for individuals of all faiths and beliefs, provides the framework.


Q. Legislative prayer, the use of “In God We Trust” on currency and as the national motto and government displays of religious symbols on public property have been upheld by courts as “traditional” practices. In your view, what should the government’s role be in cases like this? Are generic endorsements of faith acceptable?

Rogers: They may be constitutional in many cases, but that does not necessarily make them a good idea.  Baptist pastor John Leland had it right when he said, “Experience, the best teacher, has informed us that the fondness of magistrates to foster Christianity has done it more harm than all the persecutions ever did.” It is better to have authentic expressions of beliefs from religious individuals and organizations rather than those that are mediated by the government.


Q. Separation of church and state is under attack by the Trump administration. The president has aligned himself with Religious Right groups that are bound and determined to dismantle the church-state wall. Looking ahead, do you see any cause for optimism?

Rogers: Yes. The rules that define the relationship between religion and government have often been mischaracterized and misunderstood, so I believe an honest and accurate conversation about these rules can change hearts and minds. Also, while some of our principles are threatened by the actions of certain government officials, the response to those threats has been strong and is growing stronger. We are seeing some evidence, in other words, that threats to our church-state framework are causing more people to gain a deeper appreciation for those principles, the risks of changing course and the difference their voices can make. That’s encouraging news.                         

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