Crossroads Podcast: When Religious Liberty Wasn’t A Partisan Cause

Anyone searching for an optimistic First Amendment drama can flash back to 1993 when the U.S. Senate — on a 97-3 vote — passed the old-school liberal bill called the Religious Freedom Restoration Act.

That was then. A religious-liberty activist like John Whitehead, who founded the Rutherford Institute, could get a report about discrimination against a flock of religious believers and assume that Democrats, as well as Republicans, would stand by his side. I wouldn’t matter if the case focused on the beliefs of Orthodox Jews, traditional Christians or other “cultural conservatives.”

Whitehead began his work in a different age, and that’s the basic fact that was missing from the Washington Post profile that was the hook for this week’s “Crossroads” podcast. The headline proclaimed: “Why a lawyer who launched the Christian legal movement believes it’s gone astray.” Here is the thesis material (long but essential) from that Post feature:

Today the Christian legal movement Whitehead helped pioneer is worth hundreds of millions of dollars and has touched many aspects of American life. Its firms, many sprinkled with his former protégés, have been on a winning spree at the Supreme Court, overturning long-standing legal limits on religious expression by public officials, expanding religious exemptions and elevating the place of religious exercise to its highest point in modern times.

But Whitehead says the movement is not what he envisioned when he launched the Rutherford Institute in 1982.

The cause has become dangerously politicized and intertwined with right-wing politics, he says, wrongly staying quiet as Muslim rights are under attack and as President Donald Trump allows immigration enforcement officers into houses of worship. While religious-liberties-focused law firms have successfully argued in federal courts to greatly expand what it means to freely exercise one’s faith, Whitehead says the movement has wrongly elevated the rights of conservative Christians over those of religious minorities.

There are all kinds of questions that can be asked about some of that language, including the loaded phrase “elevating the place of religious exercise to its highest point in modern times.” One could argue that “modern times” may have included legal mistakes that cut into the First Amendment rights of ordinary believers, such as religious parents whose beliefs clash with the teachings of public schools funded with their own tax dollars.

That’s almost beside the point. This Post profile is yet another story that is rooted in the bitter divisions in American life during the era of President Donald Trump, President Joe Biden, and then Trump once again.

The Post, for some reason, failed to interview any religious-liberty activists or professionals linked to the Department of Justice Religious Liberty Commission. Yes, that panel includes plenty of Trump-camp voices, but also others (click here for the whole list) who would disagree with the White House on many issues.

It also would have helped if the Post had cited, by name, the legal think tanks and law firms that Whitehead is criticizing and allowed some of their leaders to defend their choices. It’s likely that many of them would prefer to be working with coalitions that include pro-life Democrats, old-fashioned First Amendment liberals and Republicans who are not defined as MAGA soldiers.

For example, the Post story does include this essential passage:

Whitehead found himself somewhat in the middle, a place that maybe made sense for someone who counted among his best friends the evangelical theologian Francis Schaeffer and the left-wing singer Pete Seeger.

He praises recent Supreme Court decisions affirming the protection of religious exercise, including a 2025 ruling that suburban Maryland parents’ religious rights were violated when the school system refused to let them opt their children out of book readings that involved same-sex couples. And he criticizes some Democratic actions, including pandemic-era restrictions on houses of worship that were stricter than those on other public spaces.

He says he finds value in some proposals of the Trump administration’s religious liberty commission, including efforts to create more “Know Your Rights” materials in places like schools and hospitals.

There is a gaping hole in that material that played a crucial role in the podcast.

The Big Idea in the Post story is that the new religious-liberty warriors on the cultural right are only interested in protecting Christians. Thus, read these words once again, the part noting that Whitehead praised “a 2025 ruling that suburban Maryland parents’ religious rights were violated when the school system refused to let them opt their children out of book readings that involved same-sex couples.”

Does it matter that the parents in that case included Muslims, Jews, Eastern Orthodox believers and others? These parents in those progressive Maryland suburbs were not part of an army of evangelical Protestants in MAGA hats.

Also note this important passage in the Post report:

[Whitehead] points to new laws in a handful of states mandating public schools to prominently hang the King James version of the Ten Commandments and threats last month by Texas officials against airports that offer foot-washing stations for Muslim travelers.

"We started out trying to protect the little people," Whitehead said. Now leaders in the movement are "sitting in the White House with Trump. They're now part of the nationalist movement. Religious liberty is a constitutional principle, not a political program."

Does the Post story discuss whether some of the new religious liberty groups — such as the Becket Fund and the Alliance Defending Freedom — have declined to support some of the Trump-era efforts that most offend Whitehead?

Truth is, there are quite a few well-known religious liberty activists — such as the Rev. Russell Moore and New York Times columnist David French (former ADF senior counsel) leap to mind — who have found it hard to speak candidly in an age in which their old-school liberal views anger “woke” warriors, as well as many in President Trump’s camp.

Thus, I think the single biggest hole in the Whitehead profile is that it never discussed any of the cases in which “conservative” legal teams won major victories at the U.S. Supreme Court while defending the rights of traditional religious believers of all kinds.

At the top of the list would have to be the 9-0 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, defending the concept of a “ministerial exception” allowing religious groups to defend their doctrines while making decisions about hiring and firing personnel. That was followed by the 7-2 decision in Our Lady of Guadalupe School v. Morrissey-Berru that said the “ministerial exception” applied to teachers and other employees, not just ordained people.

Another crucial SCOTUS case was Ramirez v. Collier in 2022, in which a broad coalition of legal groups defended the rights of death-row inmates seeking to have their spiritual advisors with them during their executions. This would include the ability to pray out loud, lay hands on them or perform other rites to prepare for death. SCOTUS ruled 8–1 in favor of these essential religious rights.

Consider Holt v. Hobbs, a unanimous SCOTUS decision in 2015 defending the right of Gregory Holt — Abdul Maalik Muhammad, after converting to Islam — to grow a short beard as a symbol of his faith. Prison policies had banned beards except for medical reasons.

What about this U.S. Court of Appeals case — Thai Meditation Association of Alabama v. City of Mobile? A broad coalition of legal groups, led by the Jewish Coalition for Religious Liberty, backed a Buddhist meditation group that claimed the city of Mobile discriminated against it in zoning decisions. Many of the conservative groups described in the Post feature were in that coalition.

My point is that Whitehead is not the only “conservative” activist who has found it hard to occupy the center ground on First Amendment issues when their old-school views clash with both the woke left and some in the MAGA right.

I will end with a parable that I used many times with GetReligion. Remember the ongoing legal wars about the Masterpiece Cakeshop in Colorado, operated by wedding-cake artist Jack Phillips?

Press reports claimed that he refused to serve a gay couple, two men who had been customers in the past. Phillips offered to sell them anything in his store and help cater the reception for their same-sex union rite, but declined to create one of his custom cakes if that would require using words and images that violated his evangelical Christian beliefs.

To focus on the core First Amendment issues, I created this mirror-image parable:

… Let’s say that there is a businessman in Colorado who runs a video-production company. He is an openly gay Episcopalian and, at the heart of his faith (and the doctrines articulated by his church) is a sincere belief that homosexuality is a gift of God and a natural part of God’s good creation. This business owner has long served a wide variety of clients, including a nearby Pentecostal church. …

One day, the leaders of this church ask him to shoot and edit a video about a major event at their church — the upcoming regional conference of the Parents and Friends of Ex-Gays & Gays. The videographer declines, saying this would violate everything he stands for as an Episcopalian. He notes that they have dozens of other video options in their city and, while he has willingly served them in the past, it is his sincere belief that it would be wrong to do so in this specific case.

One more fact is crucial:

It’s clear that the gay Christian businessman is not asking to discriminate against an entire class of Americans. He is asking that his consistently demonstrated religious convictions be honored in this case, one with obvious doctrinal implications.

Would the Washington Post editorial board find a way to support the gay businessman, but not Phillips? What about leaders of today’s American Civil Liberties Union?

I would argue that Whitehead would support the believers on the left and the right.

Enjoy the podcast and, please, pass it along to others.