My address to the ACLU on religious liberty issues

By J. Brent Walker

Reflections
May 2006

I was happy to be asked to address the plenary session of the 2006 Nationwide Staff Conference of the ACLU in Park City, Utah, earlier this month. The Baptist Joint Committee and the ACLU have worked closely with each other over the years. Of course, we partner only on church-state issues, not on the many other First Amendment and civic rights issues that the ACLU addresses. And even with that more limited cooperation, we do not always see eye-to-eye.

I was asked to give the assembled ACLU staffers—national offices and state affiliates—my thoughts on how the ACLU could more effectively address religion and religious liberty issues. The following is a summary of my remarks. Readers of this publication may benefit from them, too.

Let me outline briefly four ideas that suggest how we should speak about religion and religious liberty in a way that honors our religious heritage, is faithful to our constitutional tradition and communicates effectively to policy makers, the media and the public. Mission and message must go together.

First, do not stereotype those whom you consider to be your enemies (or those who consider YOU to be THEIR enemies). We make a mistake if we lump everybody together as the "religious right" or as "fundamentalist." These are not monolithic categories; those who fall within those general descriptions are not all the same. They differ on policy issues, views about church and state and in temperament. Some who are conservative theologically may be liberal politically, such as Ron Sider and Jim Wallis. And don't lump all Baptists together either. There's a world of difference, theologically and politically, between Tony Campolo, Jimmy Carter and Bill Moyers, on the one hand, and Jerry Falwell, Roy Moore and Pat Robertson, on the other. Finally, some political conservatives, because of their distrust of government and belief in the doctrine of original sin, are strong advocates for church-state separation.

Second, continue to fight hard to defend the Establishment Clause, but be equally assiduous about promoting free exercise values. The religion clauses must be given equal dignity. We need a robust enforcement of both of these clauses. If one camps too hard on one to the neglect of the other, the protections for religious liberty immediately tilt like a pinball machine. The ACLU has been at the forefront of some far-reaching religious liberty legislation in the past several decades, including the Religious Freedom Restoration Act. I urge you to continue that effort with regard to state religious freedom acts and the Workplace Religious Freedom Act, for example, currently pending in Congress. I know you have countervailing civil rights concerns, but I hope these can be mediated to allow you to endorse this much needed free exercise legislation.

Third, as you continue to defend the First Amendment, understand that not every brush with publicly expressed religion or civil religion amounts to a full-blown Establishment Clause violation. It does not serve the ACLU's cause well to make a constitutional mountain out of a civil religion molehill.

In a country with religious roots as deeply planted as ours, it should surprise no one that references to the deity will be reflected in our public rituals and civic ceremonies, our patriotic songs, slogans and mottos. Why would we expect to have a public square shorn of religious conversation and debate? As Justice William O. Douglas reminded us, Americans are a very "religious people." It seems to me these relatively benign expressions of religion do little harm but serve to remind us of our religious heritage and tradition. These are examples of what James Madison, the father of our Constitution, considered de minimis concerns and what he called the "unessentials." Some arguable violations are simply not worth fighting over.

So, while some of us may have theological concerns about excessive civil religion—where it can turn into an idolatry of nationalism and serve actually to trivialize religion—most expressions of civil religion do not amount to constitutional violations.

Finally, find ways to work with folks on the other side of the religion/culture divide. Again, there's good precedent here. In addition to RFRA and other efforts to pass free exercise legislation, I would point to the variety of consensus statements on religion in the public schools that have been so helpful in the past decade or two. Much good will and trust was built up and developed among folks on diametrically opposed sides of issues and the culture debate generally. I fear that we are using up more of that capital nowadays than we are replacing. We should look for areas of common ground and work together on that sacred soil of civic cooperation for the public good.

I hope the BJC and the ACLU will continue to be partners in the all-important task of ensuring religious liberty for all—as we have for many decades—and model how religious and secular groups can cooperate in common enterprises for the commonweal.