Religious Freedom and the Law (with Nate Walker)

Stephanie:       You’re listening to In Times Like These, a production of CLU Live at Claremont Lincoln University. In Times Like These explores the difficult spaces we humans navigate in culture and religion, in dialogue and doubt. When was the last time you thought seriously about the Bill of Rights and how they protect you? The Reverend Nate Walker is an expert on religion and public life. He’s Executive Director of 1791 Delegates, constitutional and human rights experts that advise and work on the legal and social issues surrounding law and religion in the US. In this episode of In Times Like These, we talk about whether the US is a Christian country, a pluralist country, or something altogether different. We talk about these freedoms we have, and what threatens them, and we work to understand whether religious expression in public life is good, or only adds to discord. Nate, I’m so happy to have you in this discussion. Thank you so much for your time. Could you please tell me a little bit about your professional work, and how you got into this work.

Nate:                Sure. I’m a First Amendment educator, and a Unitarian Universalist minister. I got into this work by being a congregational minister, served congregations in various capacities for 14 years, and then while I was in the latter stage of that, I was also a doctoral student studying law and religion, and so right now, I work with a team of constitutional and human rights experts. We work at the firm called 1791 Delegates, named after the year where the Bill of Rights was ratified. We specialize on issues of religion and public life. We work with organizations on strategy, on development fundraising, research, and education.

Stephanie:       Tell us more about why the Bill of Rights is so resonant with your work, and help me connect how someone who is a minister is also interested in the law.

Nate:                Mm-hmm (affirmative). The Bill of Rights, ratified in 1791, was a landmark legal document in that the five freedoms of the First Amendment that were articulated in there, freedom of religion, freedom of speech, press, assembly, and petition, were landmark constitutional rights that have since been replicated in over 90 countries around the world. When one studies the historical origins of religious freedom in the law in the US, you can trace the development of constitutional rights around the world, which have since been created the blueprint for what we know as human rights.

Stephanie:       Okay, so this is betraying some of my ignorance, because I was a public school teacher, someone who considers myself very patriotic. I know about the Bill of Rights. I know why they’re important. For your everyday person, how … Human rights in the United States, are they solid? Are we okay? Do you worry about them? What do scholars who work in this field, what are you looking at? What do you trace? What do you track, and what should we as good consumers of the media, and as people interested in our rights, what should we be paying attention to and tracking?

Nate:                The human rights framework was born out of the genocide of Jews in World War II, right? The Declaration of Human Rights was in response to this genocide, and so the fact that this occurred by targeting a religious group for discrimination and extermination gave birth to our human rights framework. How I understand that today is that you cannot single out a religion for government regulation. Studies show that the more you regulate religion, the more states use the rule of law to regulate religion, the more you see a increase in social hostilities, and an increase in violence. When you deregulate religion, you see decreases in social hostilities, and decreases in violence. An example, a very live example, is the current administration’s proposal to ban people from eight different countries, six of which are majority Muslim, from entering the country. This is very problematic. Two circuit courts have seen the travel ban as creating, is based on religious animus, the courts have said, meaning the administration is acting on the type of hostility toward Muslims that is unconstitutional.

Here we are asking ourselves why did … How did we even get here? One reason is that nine out of 10 media reports about Islam are about violence, so if Americans in general are reading news about Islam, and nine out of 10 of those articles are about violence, it develops a perception that an entire religion of 1.8 billion people are innately violent, which is inaccurate. It’s a stereotype. It’s a misperception, and is not based in fact. What concerns me about the issue of human rights today, and its relationship to the current proposed travel ban by this administration, is that it feeds on the public’s misunderstanding of religion, in particular, about Islam. In particular, reports have shown that nine out of 10 media about Islam is about violence, and that obviously represent the 1.8 billion people who identify as Muslim around the world. If it truly was a religion of innate violence, as some of these articles suggest, you would know it, with 1.8 billion people, and so I think that this type of misperception about a religion, about a group of people, is being used by the current administration to fuel justifications for this travel ban.

Thankfully the rule of law does not allow for a government to engage in what’s called invidious discrimination, systematic discrimination based on one’s identity. In particular, a recent circuit court, in fact, the most conservative circuit court in the entire country, just ruled two weeks ago that the administration is engaging in religious animosity toward Muslims when seeking to justify banning people from Muslim majority countries from entering the US.

Stephanie:       Okay, so that’s not just a timely example, but that’s an example that everyone in the US and abroad is thinking about a lot. We’re traveling. We’re seeing media. We’re hearing media. Tell me about your dissertation, because your dissertationd eals with an older topic that is still really relevant.

Nate:                Yeah, and so I study legal restrictions on religious expression broadly. Specifically I study if public schoolteachers can wear religious garb while in the public classroom, so.

Stephanie:       What are examples of religious garb, like if I wear a small crucifix on a chain around my neck?

Nate:                Mm-hmm (affirmative). Exactly. It can be a necklace. It can be dress, like a hijab, like a head scarf. It can be some kind of mark, like a tattoo, some kind of emblem, insignia, long hair for Native Americans, Rastafarian dreadlocks. Anything that quote “designates a teacher as a member or adherent of any religious order, sect, or denomination.” The government has been engaging in this type of regulation of teachers religious dress since 1895.

Stephanie:       In the US.

Nate:                In the US, so it started with trying to get rid of Catholic nuns from teaching in public, in basically Protestant public schools, right, de facto Protestant schools, and it came forth in a case in Pennsylvania in 1894, when Catholic nuns successfully brought their case before the Pennsylvania Supreme Court, and the Supreme Court said, “Yes, the public school cannot deny you employment because you wear the habit.” That would be against our state constitution’s protection of religious freedom, and the Pennsylvania legislature rejected that idea, and overwhelmingly passed the nation’s first anti-religious garb law. It is now 123 years old. Pennsylvania still has this law in effect. At one point, there were 22 states that had similar types of statutes, or administrative policies, or regulations in schools preventing public schoolteachers from wearing religious garb. They were overwhelmingly against Catholic nuns teaching in the public school.

Stephanie:       Okay, so hold on. I’m going to gather my thoughts. I want you to help us understand why this kind of case is still relevant. Yeah, so I’ll just ask that. 1894. Is this kind of case still relevant to Americans, or to teachers, or to lawyers, or activists today?

Nate:                Unfortunately, yes. The more contemporary cases that have involved public schoolteachers have prevented Muslim teachers from teaching in public schools, Sikh teachers from wearing turbans, and most recently in 2016, another Catholic nun was denied employment in Nebraska because Nebraska’s statute was still in effect. What’s happening is that these long-standing laws mirror what we see around the world, in Turkey and France, right? The bans on the burqini, the bans on the burqa, the bans on this, and that, and so we have to ask ourselves, what happens in a country, any country that singles out religion for regulation like this? In 1986, Janet Cooper, who was a white convert to Sikhism, began wearing a turban while teaching. The Oregon Supreme Court ruled that she should have been terminated, and her teaching license revoked, and so she herself left the state after losing that case, and moved to New Mexico, where they did not have a ban like that. Oregon in 2010 overturned this ban when their state legislature passed a bill that repealed this long-standing regulation.

In the repeal, they said that in its origins, there were people who were elected into office, who were open members of the KKK, the Ku Klux Klan, and they were motivated by anti-Catholic bias to prevent Catholic nuns from teaching in the public school. Here we are in 2010, and Sikhs cannot teach, and this law is a form of discrimination that goes against our fundamental commitment to freedom of religion for people of all religions, and so they repealed it. In Nebraska, after the nun brought forward and said, “I’m a substitute teacher, and I can’t wear my habit while teaching, and if I … ” This law is crazy. If I actually do this, I could be put into the county jail for 30 days, so it’s just … I just can’t imagine the police coming and ripping a Catholic nun out of a public school, and yet that was that threatened, so the legislature brought this forward, and they repealed this law. Pennsylvania’s the last state to have such a regulation.

Stephanie:       It sounds like our history of legislating certain behaviors, and appearances, and making gateways to keep people out has to do with whoever we’re fearing at the moment, or whoever we’re mistrusting at the moment, and so now in most places in the United States, Roman Catholics are fully integrated. We don’t see them as other as much as we do Mormons, or Muslims, or atheists, but we still continue to use laws, and rules, to try to control behavior, or to control groups of people.

Nate:                That’s right. That’s right, and so this is often based on fear, right? Catholics were to be feared at one point, because it was thought that if a Protestant child was taught by a Catholic nun, it would be so impressionable on the child that his or her loyalty to the country may be superseded by the teacher’s loyalty to the Pope. This was the rationale at the time, but now-

Stephanie:       Right, it’s like that word Romish, the Romish teachings, right?

Nate:                Yes. The Romish teaching. The Papist. Watch out for the Papist. They’re out to get us. The heathen invasion was big when the concern that yoga would be taught by Hindus, and would therefore create heathenism in the country. There is an executive order against Mormons by the governor of Missouri, an execution order, I should say, order to kill Mormons, exterminate them, right, because they were to be feared and eliminated. When did Mormons become Christian by the Protestant majority? When did Catholics become Christian in the eyes of the Protestant majority, right? These trends parallel the legal trends that we’ve seen in the country. For example, Protestants bring forward 4% of the legal cases about free exercise of religion, and of the 4% of those cases, they get favorable decisions 70% of the time. If you’re a Native American, Jew, or Catholic, they account for 20% of the free exercise cases, so one in five, but less than half of them are ruled in their favor. In a more extreme case, Muslims make up less than 1% of the American population, and yet they filed 7% of the free exercise cases, but only a third of them are favorable.

Those are really disturbing statistics, but the real story here is that to date, no Native American, or Jew, or Sikh, has ever won a free exercise claim before the US Supreme Court. No Native American, no Jew, no Sikh has ever won a free exercise claim before the US Supreme Court. They’ve won some cases in some of the lower courts, but if the highest court, since it’s the nation’s founding, has never had a positive affirmation for these religious minorities … It’s like Native Americans, who were here before the country was founded, it says something. Muslims won their first set of cases in 2015. You’ll remember the Abercrombie and Finch case, where Samantha [Ilaf 00:18:42] was denied employment because she wore the hijab, the head scarf in her interview. Gregory Holt, who had a beard while he was in prison, he was allowed by the US Supreme Court to continue to wear the beard because of his religious devotion. In this way, this is a good story, right? You’re seeing the legal system come to terms, to its own religious animosity.

What’s concerning me today is that this current administration, by proposing a ban on people from Muslim majority countries, it builds upon this systematic discrimination against religious minorities. I find that to be historically dishonest, and what I mean by that is if you look at John Adams, right, so he was the first Vice President, and he was the second President of the US. He called himself a churchgoing animal, because he was so pious. He was like a super Christian. He was very open about his faith. He questioned Thomas Jefferson’s faith in his election against him, and things like that. What’s interesting here is that he wrote a treaty to a Muslim majority country, and what’s incredible here is that this treaty was put into law in 1797. This is just within a few years after the Bill of Rights, which was ratified in 1791. In this treaty, he says this, and I’ll read the text, because I think it’s colorful.

He says, “As the government of the United States was not in any sense founded on the Christian religion, as itself has no character of enmity against the laws, religion, or tranquility of Muslims, and the said United States have never entered into any war or act of hostility against any Islamic nation, it is declared that no pretext arising from religious opinion shall ever produce an interruption of the harmony existing between the two countries.” From its inception, the country was built on this notion of constitutional pluralism, this chartered pluralism. We are a chartered nation of various different sects, and different minorities. In this context, we have the most pious of all of the Founding Framer, the framers of the Constitution, and the founders of the country saying, “Look, we’re not legally founded as a Christian nation. Yes, we make up many different types of Christianities here, but we do not have any character of enmity against any Muslim majority.”

In no way will there be any pretext arising from a religious opinions to interrupt the harmony between our countries. How is it now, in 2018, can we even be considering banning people from Muslim majority countries, when there’s no historical precedent for that, and when the courts are routinely finding now that this is an act of religious animosity?

Stephanie:       That’s amazing, and I was going to ask you, I was going to say, so are we a Christian country, or are we a pluralist country? It’s such a strange question to say out loud because most people I know my age and younger don’t go to church, right? People younger than us are increasingly either multi-faith, or hybrid, or they’re atheist, agnostic humanists, and so, and yet I hear from my atheist and agnostic colleagues and friends that no, we are steeped in Christianity. It’s a Christian, Christian country, so how do we make sense of our national identity?

Nate:                I think we can look historically on where we’ve been, and also look at where we are now and where we’re going. Historically, this … The colonization of North America occurred by people of different Christianities, right? There are 4,200 different types of Christianities in the historic study of Christianity. 4,200. Like we were talking about earlier, when did Mormons become Christians, right, in the eyes of the Protestant majority? There are so many differences between Christianities that often they don’t … They reject one another. I overheard, I literally overheard someone say, “Oh, I’m not Catholic. I’m Christian.” What does that mean?

Stephanie:       Right, and I’ve heard the reverse. She’s not Christian. She’s Catholic.

Nate:                Yeah. That’s right. That’s right, so another way to look at this is that from its inception, the American experiment was based on competing different types of religious denominations and sects. The colony of Virginia banned Puritans from entering, right? The colony of Massachusetts run by Puritans banned Quakers and Baptists, so what did Roger Williams do? He was banished, and then he built Rhode Island, with the first known government to ever have a law, have a constitution, a charter, that said there will be no established religion. Why did all of these different Christian leaders then start to experiment with this no establishment of religion? A professor out of Emory University, John Whittease, says that there are 100 different biblical justifications for separation of religion and government, right? Give back to Caesar what is Caesar’s right? These are religious justifications to separate religion and government. That is not secularism. That’s separationism.

The separation experiment, right, the establishment clause, that Congress shall make no law establishing a religion, and it’s … By the time the Bill of Rights, 94% of the state constitutions also had no separation of religion clauses. This experiment with separation I think now is confused with secularism, as an idea of separate out religion from public life, or freedom from religion. That’s more of a French model, the [French 00:26:16], the secular approach. In the US, we are confronted now with something that no other country in human history, that as far as I know, has ever had to face, and that is the fact that we are a nation of religious minorities. Protestants in 2012 became for the first time a minority. This is unprecedented, and at the same time, the … If you were to add Catholics with Protestants, right, you still get a Christian majority of 70%, but what you’ll see is that a … The differences within the Christianities are so severe that they often don’t see themselves as a part of the same religion.

For example, the … Let’s take the African Methodist Zionist tradition. They have more in common with reform Jews than they do with a conservative white evangelical Christian. It’s just incomprehensible for them to see themselves as Christian, because they’re acting in ways that violate their own understanding of the faith. The diversity within religions is so extreme. The diversity among religions is unprecedented. The rise, the most … The group that is experiencing the most increase in demographics right now are those who identify as none, right? The nones, the unaffiliated, so the combination of all these factors has led us to be a nation of religious minorities, and I think this constitutional experiment of separation and free exercise of religion, two principles that make up the one right of religious freedom in our country, I think that is the common ground approach that will save us from any act of animosity that we’re experiencing.

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Stephanie:       Being human is a messy endeavor. We are made to be in relationship, and yet our fear of diversity keeps us apart. My new book explores this paralyzing paradox. Interfaith Grit: How Uncertainty Will Save Us is available now on Amazon and on our blog. It’s for all of us, ordinary readers seeking ways to learn how to engage with difference. Interfaith grit is possible, and it can save us.

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Stephanie:       Okay, so say that again, so help me understand. Underneath our religious rights there are two principles. One is that religion is separated out from the church, and the second is that we all, I have the practice and express my religion.

Nate:                That’s right, so the free exercise clause says Congress shall make no law establishing a religion. That’s called the establishment clause, right? It’s the separation of religion and the state. It’s that biblical principle that Christians early on used to say, “We will separate religion and government.” It is a non-religious principle to say that we’re going to have neutrality in the law. We’re not going to favor any law or religion, and we’re not going to be hostile toward any religion. The second part is not a negative restriction on the government, but a positive affirmation for the resonance of the country, and that is free exercise of religion. This is an important term because Madison, when they were originally designing these laws, crossed out a line by George Mason that said there should be a religious tolerance. He crossed out the word tolerance because he said, “No, it’s more than just tolerating one another, putting up with another’s religion. It is a positive affirmation, that is an active right, and it’s called free exercise of religion.”

This is what made the free exercise clause such a compelling act of law, that is now replicated in 90 countries around the world.

Stephanie:       Right. That’s why people get excited about how distinct and empowering that can be if allowed to foster our free expression as it was planned to do. Okay, so put on your pastor hat for a moment, and help me understand, is it a human flaw that makes us focus so much on difference, or is it a flaw of religion? Do we just go wrong when we design religions and denominations, because here at Claremont Lincoln, we talk a lot about the golden rule, and we talk a lot … We affirm the things that we have in common with other traditions, so why? Why do we keep getting caught up in the things that are distinct, so much that we stumble?

Nate:                The true essence that this, the DNA, if you will, of religion, is for people to make it their own. One way that that comes out is for religions to divide, into sects, within sects, within sects, right? It’s disagreements within communities that lead to creating two types of churches from the same religion across the street from each other in that small town in Buhl, Idaho, or wherever.

Stephanie:       Right, because these are disagreements about things that we care about a great deal.

Nate:                That’s right, and I think there’s several reasons for that. One, religion at its best is about mattering, and about belonging. When I have the privilege of caring for people from womb to tomb as their minister, I ultimately want them to know that they matter, and they belong, and in that hug, if you will, that pastoral envelope of care, something incredible happens. People begin to form their religious identities, and there’s studies that show some interesting things about how people do that. One, it’s called the three B’s of religious identity formation, belief, behavior, and belonging. Some people come to identify their religious identity as a statement of belief statements. I believe this, therefore I am this. Others have a set of behaviors. I engage in these spiritual practices around food, around ritual, around holidays, around family time, and so on, and therefore I am this. It becomes an act of identity to engage in those behaviors. Another is that act of belonging, of I am a part of something greater than myself. I am a part of a tribe. I am a part of a belief system. I am a part of a tradition.

Different people emphasize the belief, behavior, belonging in different ways. That’s why you have many … What is it, 86, 87% of American Catholics who don’t have no moral objection to contraception, and yet the church has statements about the immorality of contraception. Their belief statement falls lower on that scale, but their act of belonging to the Catholic Church is beyond any doctrinal statement. From a pastoral perspective, for me it’s about meaning making. How do people make meaning of themselves and one another in that context? The primary way people tend to leave religions is because there’s an eruption in that identity. There’s a trauma. There’s a active marginalization, rather than an active mattering. For instance, my grandmother, she was raised Catholic. She raised her seven kids Catholic, and she came to the priest and said, “My husband is beating me. He’s an alcoholic. I have to get out of the house. I have to protect my children. I need your help, and I’m going to ask for a divorce.”

His response is, if you do, you’ll be excommunicated, so she not only left her husband, but she left her church.all of her children, and in turn all of her grandchildren, of which I am a part of that line, none of them were raised religious. It was a trauma that led to the breach of an identity, to say, “If you will not protect me in this act of belonging, then I know I do not belong,” and left. This has been happening around all different types of social issues, these severs in identity, and I think that’s what’s happening with a lot of young people. They see religion more as so politicized, and so engaging in social issues, that they say, “Oh, there’s no room for me to belong there, so therefore I’ll just opt out.”

Stephanie:       I love that phrase, marginalization instead of mattering, and that idea of marginalization, even though we know better, we keep doing it. We keep saying, “Well, they don’t dress the right way. They don’t do the fish fry like we do the fish fry, or they don’t look like we look.” The flip side of that is a positive, right, that belonging. I know you belong with me because we sing the same way. I know you belong with me because we baptize the same way. I know you belong with me because we mourn our dead in the same way, and so that great positive has the capacity on the other side to be othering.

Nate:                Absolutely. An example is I studied abroad in Holland when I was in college, and my best friend who is Mormon would go to the Mormon church in the Netherlands each Sunday. It was in another language, and it didn’t matter. She didn’t need to know the words to know that she belonged. It was that type of devotion that was universal beyond any language, beyond any culture, beyond any moment in time that led her to feel a sense of comfort. Just as we talk about marginality and mattering, another way to frame it is transitions, and transformations. People are constantly in major life transitions. It’s just the nature of human existence, from birth, to adolescence, to these major milestones of adulthood, of marriage, of jobs, of moving, of death, of aging. All of these vulnerabilities, so at best, their religion will be able to hold us in care through all of those transitions, and in turn, help us transform. Another way to say that is to regenerate, to rebound, to have some sense of resiliency in the midst of change.

Stephanie:       Yes. Yes. That’s a helpful way for me to think about religion as being a potentially positive force in the United States right now. Unfortunately, a lot of people who say, “Oh, you’re a Christian. Ugh.” Right? We do a lot of harm when we distinguish ourselves by difference.

Nate:                All the more reason for you as a Christian to claim your identity, and to destereotype Christianity by your very presence. Muslims in America are having to do the same thing, and so if we are going to be an effective citizenry, where we can truly govern a nation of religious minorities, we have to tone down the crazy. We have to destereotype. We have to make meaning about one another, and create some kind of civic spaciousness where people can be authentic. I think the constitution does that. It gives us this common ground framework by which people can be authentic, where there’s no government coercion of religion or nonreligion.

Stephanie:       That’s powerful, the idea that our constitution, this thing that a lot of us don’t think a lot about, we don’t … We definitely, unless we’re involved in law, don’t think of it as a living, thriving, flourishing document, and yet that as a foundation for our civic spaciousness. Really evocative and beautiful, so for people like me, who are getting turned on to this work, and thinking, “Wow, I should know more about this,” what resources, what should we be doing? Should we carry around a copy of the Constitution? Should we be following you on Twitter? How do we become more educated citizen participants in this endeavor?

Nate:                Yeah. I particularly love the religion news service. I think that they’re a great clearing house to understand issues of religion in public life. I’m really proud of the religious freedom center out of the Museum Institute that’s doing First Amendment education, and offering online classes. Our firm is launching a new set of programs, religionandpubliclife.com, where we’re playing with this whole set of new resources. Ultimately I think that in the end, it’s going to come down to curiosity. Right? Am I curious about my neighbor, and am I curious about the rights that protect us all? Another way to say this is to draw upon the three R’s articulated in the Williamsburg Charter, which says that everyone has rights, and everybody has the responsibility to protect those rights, and we must do so respectfully. Rights, responsibility, respect. That’s something I think every public school teacher, whether they’re religious or not, can teach in a simple way to kids of all different ages. I think that’s something that a politician can easily add to their platform on election, of rights, responsibility, respect.

I think that that’s something a public official can offer, a public teacher can offer, and that’s something we can offer each other as citizens.

Stephanie:       It sounds like you are hopeful about this endeavor of being a collection of United States. Are you hopeful most of the time, or do you ever despair? Do you ever just look at it and think, we are not capable of living into this?

Nate:                I think it’s both. I think that when I see the studies that show that there’s an increase in antisemitism, there’s increase in hate crimes based on religious identity, that there’s a rise in white nationalism, these things frighten me. Where I find hope is that there are different religious leaders who are beginning to advocate for people other than themselves. I find it hopeful that nonreligious people are advocating for the rights of the religious. I find it very hopeful that First Amendment education is becoming more integrated across different disciplines in the academy, so that it’s not just a lawyer thing to do, right, to know the Constitution, but it’s a civic responsibility. Yeah, I’m both terrified of what’s happening, and incredibly hopeful about the extraordinary leaders like yourself. Claremont is such a beacon of authenticity for people to be themselves, to effectively learn how to be a leader in a incredibly diverse society. This is needed more than ever.

Stephanie:       Yeah. That’s what we’re working on, all of us, right, and you, and these collaborations. Thank you so much. That was … I didn’t know that you were a minister, and there was some moments there where I was taking notes, and I thought, wow, my goodness. I really needed to hear that today.

Nate:                Oh, I appreciate that.

Stephanie:       Both for your expertise, and for your thoughtfulness around being human, and why it’s messy.

Nate:                Thank you for your extraordinary leadership. I think you’re a model of what it means to be intellectually honest, constitutionally grounded, religiously authentic. You are walking the walk, and I’m honored to be in your presence.

Stephanie:       Thank you so much. Thanks for listening to In Times Like These, where we explore issues of politics and faith, and learn from one another how to navigate difference for maximum flourishing. In Times Like These is a product of CLU Live at Claremont Lincoln University. For more, subscribe, share, and visit us at claremontlincoln.edu.