By Cherilyn Crowe
Opposing sides in battles surrounding religious liberty have more in common than they realize, creating potential for meaningful conversation, according to Alan Brownstein, professor emeritus at the University of California, Davis, School of Law. Focusing on the complex nature of church-state disputes and religion and equality issues, he delivered three presentations for the 2015 Walter B. and Kay W. Shurden Lectures on Religious Liberty and Separation of Church and State, held April 7-8 on the two campuses of Mercer University in Atlanta and Macon, Georgia.
The annual event brings a church-state expert to a college, university or seminary to examine religious liberty and educate students. Brownstein, a nationally-recognized constitutional law scholar, used his platform to provide practical ways to elevate the current debate, examine the complexity of church-state issues and discuss recent Supreme Court decisions with religious liberty implications.
“America is a place where our differences enrich us rather than divide and diminish us,” Brownstein proclaimed during his first presentation, held at Mercer University’s McAfee School of Theology in Atlanta. Focusing on engaging in respectful discourse on religion and equality, he illuminated the power of speech.
Brownstein laid out two paradigms for the use of speech in dialogue with others. He said it can be a “weapon in a power struggle” between us and others who are different – people we might consider “strangers.” In that model, there is no need to talk to the strangers; we only need to talk amongst ourselves about them, he said.
Or, speech can be a tool to build bridges between people who are different from each other and settle disputes. But, in order to do that, we must talk to the “strangers” and assist them in appreciating our needs and concerns.
“Part of respectful discourse is talking in a way that allows you to understand the other person. And part of respectful discourse is figuring out the best way to talk so that the other person can understand you,” Brownstein explained.
An important step to respectful discourse in a free society is “to recognize that the essence of liberty is the right to be different, to act wrongly in the eyes of others,” he continued. In order for rights to be meaningful, you have to protect them, even if someone is acting “wrong” in your eyes – be that expressing a wrong message or worshiping the wrong god. While one side does not have to accommodate the other side’s demands, Brownstein told the crowd they must acknowledge the cost and pain a compromise may require of the other side.
Brownstein showed how easy it is to find common ground between religious and non-religious people by explaining both have two of the same fears: worrying that they (and their voices) will be excluded from public discourse shaping policy, and that the other side is trying to change who they are, culturally and legally.
Brownstein also said that, while respectful discourse on religious liberty and same-sex marriage is extremely rare today, those on different sides have more common ground than they might think. He noted that both religious liberty rights and the right to same-sex marriage are based on the idea of personal autonomy and reflect a commitment to relational responsibilities. Plus, both are challenged on the grounds that they create a slippery slope.
“Too often, we ignore the complex beliefs of both liberals and conservatives, and pigeonhole both groups into ill-fitting ideological straitjackets,” he said.
Brownstein told the audience that “people who really understand and believe in the separation of church and state can be extremely effective bridge-builders in today’s polarized society” as they affirm both religious freedom and the prevention of government establishment of religion.
Continuing his call to understanding, Brownstein focused on the complexity of all church-state issues the next day in Macon, Georgia, when he gave his second presentation on Mercer University’s main campus.
“[S]ome church-state issues grounded in religious differences are genuinely difficult problems for even the most well-intentioned society to resolve, ” Brownstein stated.
Part of the complexity of church-state disputes, according to Brownstein, is that they may involve four fundamental values that receive constitutional protection on their own: personal liberty and autonomy; equality of treatment and status; freedom of speech; and the diffusion of power.
To find solutions to the hard cases, Brownstein noted that disputes can often be mitigated through an inclusive process of decision-making.
A commitment to religious liberty and religious equality requires a commitment to living in a religiously integrated society, according to Brownstein. It’s by interacting with each other that we form bonds of empathy and mutual respect, dispelling stereotypes.
Brownstein’s legal expertise led to an engaging discussion with students at Mercer University’s Walter F. George School of law for his third presentation, as he broke down the U.S. Supreme Court’s decisions in Burwell v. Hobby Lobby Stores, Inc. and Town of Greece v. Galloway.
Brownstein said he believed the Court reached the right conclusion in Hobby Lobby, allowing a closely held for-profit corporation access to a religious accommodation provided to objecting religious groups. However, he pointed out “serious mistakes” the Court made reaching that conclusion, which undermine the persuasiveness of the opinion and helped provoke the political backlash against both the decision and religious liberty accommodations in general.
While agreeing with the Court’s conclusion to allow owners to operate a business consistent with their religious beliefs, Brownstein said it was a “mistake” for the Court to assert that a for-profit corporation itself is a person with a right to exercise religion protected by the Religious Freedom Restoration Act (RFRA). He sees religious liberty as a dignitary right, but found it an “offensive caricature of humanity” to describe corporations that way, explaining that they do not love, experience guilt or shame, or stand in judgment before God.
Other details of the decision were cause for alarm, according to Brownstein, such as the Court’s failure to write a narrow opinion in the case. “That failure, I believe, has contributed to the heated criticism the opinion has received, and it has contributed to increased opposition to religious liberty exemptions in general,” he said.
But, when it came to the decision in Town of Greece v. Galloway, which upheld government-sponsored prayer in local government meetings, Brownstein did not mince words, telling the crowd, “I can’t think of anything positive to say about it.”
Brownstein reviewed the unique nature of local government meetings, drawing a sharp contrast between their operation and the operation of a state legislature (which was at the center of the 1983 case that upheld legislative prayer). Brownstein emphasized that the coercive nature of prayer in front of local government bodies is markedly different.
After breaking down the Court’s shortcomings in interpreting social reality, Brownstein also found fault with the town’s methods in finding the person to lead the prayer.
“To put it bluntly, the town’s invitation process treated non-Christian and non-affiliated residents as if they didn’t exist or were unworthy of notice,” Brownstein said.
“The majority opinion in Town of Greece is a terrible decision for anyone who cares about religious liberty and religious equality. We can only hope that it’s given a narrow interpretation in future cases,” he concluded.
The Shurden Lectures also brought other activities to the Mercer University campuses, such as a lunch for McAfee students featuring a discussion of religious liberty with Brownstein and BJC Executive Director Brent Walker, moderated by McAfee Professor David Gushee. Also, BJC staff members met with law students, and Walker and Brownstein joined McAfee Dean Alan Culpepper to visit the archives of the American Baptist Historical Society, where they viewed original manuscripts from colonial Baptist Isaac Backus and other artifacts.
The 2016 Shurden Lectures will be held on the campus of Bethel University in St. Paul, Minnesota. For information on previous and future lectures, including links to videos of full presentations, visit our website at BJConline.org/lectures.
Students respond to the lectures:
“What made Brownstein’s talk so wonderfully engaging was just how darn relevant it was. He talked about two conversations that the religious community is having right now; not a couple of years ago, right now.”
“Brownstein’s lecture was incredibly important and helpful for me as both a minister and a writer. The words we say matter, and it was refreshing to hear someone offer practical tips for dialoguing in a way that respects the personhood and dignity of those that do not agree with us. “
“Brownstein’s lecture prompted me to think about my own context and how I can be a positive voice in discussions regarding matters of religious liberty. … I hope to be an advocate for respectful dialogue and that I will not hesitate to correct those that I see trivializing the views and needs of others, even when I agree with their opinions.”
Watch and listen to the lectures online
You can watch all three of this year’s Shurden Lectures below. To listen to the lectures in podcast form, subscribe to our iTunes channel or stream them on our website at BJConline.org/podcasts.
From the May 2015 Report from the Capital. Click here to read the next article.
Click here to view the entire magazine as a PDF document.