How 'religious freedom' became a right-wing assault on the rule of law
Samuel Alito (Photo by Nicholkas Kamm for AFP)

The Supreme Court's decision overturning Roe v. Wade sent shockwaves through the American electorate. But as shocking as the destruction of a fundamental right may be, more radical changes may lie ahead, as Andrew Seidel warns in his new book, "American Crusade: How the Supreme Court Is Weaponizing Religious Freedom." As I have argued repeatedly over the past several years, the religious right has mounted a sustained struggle to pervert the meaning of religious freedom, transforming it from a shield to protect the rights of all to worship freely into a sword wielded by the most powerful.

This article first appeared on Salon.

There are many facets to this struggle, but there's no doubt that the most consequential field of battle is the Supreme Court. Seidel's book does a masterful job of laying bare the full scope of that struggle and the stakes involved — which could ultimately mean a de facto end to the rule of law as we normally understand it. As Seidel notes, 150 years ago the Supreme Court warned that weaponized religious freedom would "permit every citizen to become a law unto himself," so there's much more at stake here than "just" the First Amendment.

As Seidel explains, his book is not meant to be a comprehensive account of this entire complicated history. Instead, he focuses on a handful of key cases, including a few that predate the modern "religious freedom" crusade that are nonetheless crucial to the story. He doesn't discuss these as lawyers normally do, in terms of court decisions and written and oral arguments. Instead, he tells the nitty-gritty story of what really happened in each of the cases, because official accounts often badly misconstrue the actual events. For example, in the famous "wedding cake" case, Masterpiece Cakeshop, Seidel interviewed the gay couple as well as two members of the Colorado civil rights commission that the Supreme Court majority slandered as anti-religious bigots. The result is closer to a living history of our time than any other book about the Supreme Court you're ever likely to read.

I recently interviewed Andrew Seidel by Zoom. This transcript has been edited for clarity and length.

The title of your book is "American Crusade." So how would you characterize this crusade? What are the crusaders trying to accomplish?

Religious freedom has long been a shield. It is this right that all Americans possess, and the words etched into the edifice of the Supreme Court tell us, "Equal justice under law." This right applies equally to all of us. It was supported by a strong separation of church and state, but not anymore.

There is a well-funded powerful network of Christian nationalist organizations and judges that are working to weaponize the First Amendment, to turn the protection of religious freedom enjoyed by all of us into a weapon of Christian privilege for the few. The crusaders' religious freedom challenges are superficially about things like Christian crosses and veterans or playgrounds or private school vouchers or bakeries and gay weddings, but really they're about religious privilege, often literally about privileging religion over non-religion, Christianity over other religions and the right kind of conservative Christians over other Christians. At its most basic level, they are trying to turn religious freedom into a weapon to reclaim and entrench their lost status as the dominant caste in American society.

You write that to understand religious freedom, you must understand three basic lines of argument. I'd like you to explain each of them and why they matter. The first one is "action versus belief."

What I try to do in the book is really simplify what has become — I want to say it's become a complicated issue, but that's not true: It's an issue that was deliberately complicated, and where so much disinformation has been pumped into this debate that the waters have been muddied. Because questions of religious freedom are not hard. Sometimes they're emotionally fraught, but in their push to weaponize religious freedom, the crusaders have misled and confounded so many Americans about where we draw the legal lines on this founding principle. So, historically and legally they're not hard questions, and I try to boil it down simply into these three lines.

The first one is that we distinguish between belief and action. So your right to believe is absolute. It's probably the only absolute right we have under our Constitution. But your right to act on that belief is not. There are a number of examples you could use. I open the book with the "Jesus take the wheel" example that's pretty popular, but the one that really drives it home for a lot of people is to think about all those parents — there are far too many of them — who hear God telling them that they have to kill their children. They're free to believe that, but I think everybody agrees that the civil law can step in and prevent them from acting on that belief. So the belief is unlimited, but the action is limited and can be limited by our laws.

That brings us to the second line.

Right. Where is it permissible for the government or the law to step in and stop that action, religiously motivated or otherwise? The answer here is pretty simple as well: where the rights of others begin. Your right to swing your fist, as the old legal adage says, ends where the other person's nose begins. It's the same thing with your religion: Your right to swing your religion or your rosary or whatever it is ends where the rights of others begin. Put another way, religious freedom is not a license to infringe on any other person's rights.

And then finally line three: church and state.

I think line three is pretty easy too. This line has been under assault for longer than the crusade has been in existence. I think the example here that's useful is a citizen who wants to pray. Citizens are free to pray all they want, that's line one. They're free to pray all they want, so long as that prayer doesn't infringe on somebody else's rights. Perhaps praying on someone else's property might not be OK, but they can even pray on public property, that's religious freedom too.

But they don't get to broadcast that prayer over a government PA system, for instance, because then they are using the power of the state to impose their religion on everybody else. Similarly, they don't get to use an office of the government, a position as governor or president, for instance, to impose that prayer on everybody else. I think the thing that is really important is that this line protects religious freedom. Mr. Johnson might pray every night, but Sheriff Johnson can't lead prayers at staff meetings or with prisoners. That's an abuse of power and sadly, the abuses of power in this context are pretty common.

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We will decry the similar abuses of power when a politician uses their official power to line their pockets or sexually harass staff or benefit partisan political campaigns. But when the abuse of power promotes Christianity, people tend to be silent, and I think it's really crucial that people understand this: Every American has a right to a secular government as a matter of personal religious liberty.

In Chapter 4, you take the case of the Kentucky clerk Kim Davis, who refused to issue a marriage license to David Emerald and David Moore. What do the different lines tell us about that case?

First, I think it's obvious that Kim Davis can believe whatever bigoted beliefs she wants about marriage, be they biblicaly accurate or otherwise. But when she is acting as a county clerk — and that is the only way that she has the power to issue these licenses —she is bound by other rules, including line number three. She doesn't get to use the power of that secular office to impose her personal religious beliefs on other people. That's not a question of religious liberty. It's a question of line number three. It's a question of the separation of church and state.

This is actually, in my opinion, a pretty basic and easy case, and it was complicated or blown up, we might say, turned into a circus by one of the crusaders in that case, Liberty Counsel. So again, line No. 1 says she's free to believe whatever she wants. Line No. 2 says that belief is not a license to act, and in that case she was denying other people their rights. That couple had a right under the law to be married, and Davis was violating that right using her official power. So she trespassed on line No. 2 and she trespassed on line No. 3.

The next case you take is Masterpiece Cakeshop. You note that the widespread unfamiliarity with civil rights was read into thousands of bad gotcha analogies. That's critical because the crusaders want to use religious freedom to undermine civil rights. So what basics are involved in making it an easy case to decide, as opposed to all the bad analogies?

So with Masterpiece Cakeshop, it's really crucial for people to understand how our civil rights laws function, because a lot of these religious freedom cases seek a license to trespass on those civil rights laws. It's a measure of how far this crusade has come, because those arguments have been around since the Civil Rights Act was passed in the '60s. One of the first challenges to the Civil Rights Act at the Supreme Court tried to argue that it contravenes the will of God and the religious freedom of business owners, and the Supreme Court laughed that argument off in a footnote. That is where we were and now we have the Supreme Court seriously entertaining these arguments and possibly in the future deciding one of these in favor of business owners.

But the way public accommodation civil rights laws often work is that they list classes of people that are protected under the law, and often these are minorities that have faced discrimination in the past. So we often are protecting people on the basis of race or creed or color or sexual orientation or national origin. Different states in different civil rights laws protect different groups of people. But what they all do is to establish clear rights for those particular people, which is important because when you're talking about line No. 2, you don't have a license to violate somebody else's rights.

So you have three clear things for there to be a good analogy under any of the civil rights laws. There has to be a protected class that's actually protected. It has to involve a business — usually referred to as a "place of public accommodation" — and then you have to have a service that business provides generally, but is denying to people in the protected class. A lot of the gotcha analogies that we saw just completely missed those things.

One of my favorites was forcing a kosher deli to serve bacon. That's never going to happen, because that's not a question of discrimination. Kosher delis don't serve bacon in the first place. No law is going to turn around and force them to. But if a kosher deli serves sandwiches to folks, then it has to serve them to everybody equally under those protected classes.

In this case, you wrote: "The Supreme Court should have reiterated Line #2 in this case. Sorry, bakery, your owner's religion does not trump the rights of others. Done." But that's not what happened, because Justice Anthony Kennedy wrote an opinion about the alleged "hostility toward religion." You later say that there's a trio of cases that shows the evolution of this idea of hostility in religious freedom cases, of which this was one. Describe that evolution and what it shows.

It's really important to understand that there was no hostility in the Masterpiece Cakeshop case. That was completely manufactured by Kennedy and the Supreme Court. A really good example of genuine hostility occurs in Chapter 6 of the book, Church of the Lukumi Babalu Aye v. City of Hialeah. You have what can only be described as a mob scene in the town in an effort to shut down a Santería church that was trying to open there. I tell the story of this city council meeting where you have the police chaplain — which is a whole other thing — and members of the city council saying, "What can we do to prevent this church from opening?" and members of the public talking about how the city needs to shut the church down.

So you have very clear hostility from government officials acting in their official capacity toward a minority religion, and then the city council goes on to pass all of these laws that effectively outlaw the practice of Santería in the city. They did what the Supreme Court at the time — they got this case right — called a religious gerrymander. Animal sacrifice was one of the sacred rites of Santería and the city outlawed it, just as a religious practice, but still allowed, for instance, exterminators to kill animals and vets to euthanize animals, still allowed kosher slaughterhouses to exist. So it was very clear that the laws they were passing targeted this one particular religion for suppression.

So where did it go from there in terms of the next cases?

So that case lay dormant for quite a while. Actually Justice Kennedy wrote the decision in that Santería case, and then the next time it crops up, that I mention, is in the case of Donald Trump's Muslim ban. So you have Kennedy writing a concurring opinion in that case too, and there's a difference. Religious liberty in the Santería case is clearly this shield to protect a hated and stigmatized religious minority from the hostility of the majority. And then, in the case of the Muslim ban, you have the court using it as a cudgel to advance conservative Christianity.

I don't think it could be any clearer that that opinion permitted hostility against Muslims across the world, and actually favored immigration for Christians, which a lot of people tend to forget. Even though that hostility was very clear, very openly stated, the Supreme Court essentially ignored it. I think it's a nearly perfect analogy to the Santería case. But for this court, for the modern Supreme Court under John Roberts, they didn't care when it came to hostility against minorities.

But with just a few weeks' difference in time we get the Masterpiece Cakeshop case, where the Supreme Court allows a business to discriminate in the name of Christianity, at the same time as it is allowing the government to ban immigration of Muslims. To me it is one of the most striking examples of how this court is trying to favor Christianity and use religious freedom to enshrine Christian privilege into our Constitution.

Employment Division v. Smith was a major case that led Congress to pass the Religious Freedom Restoration Act. What happened in that case, and what happened as a result?

This is such a complicated history. There's been so much misinformation piled up over the years. I think the simplest way to tell the Smith case is that counselors employed at a private drug counseling organization were fired for using drugs. The question in the case is: Does religious freedom require the state to pay unemployment benefits to private drug counselors who took drugs and were therefore fired for cause?

Now that's a pretty easy question to answer. I think it's pretty uncontroversial that it is perfectly acceptable for private organizations to say that drug counselors can't do drugs and keep their jobs. But it got complicated so much along the way, and up to this day, in part because Justice Scalia wrote a couple of paragraphs in the opinion that were far out of balance. He had a venomous pen and loved to use it, and here he essentially dared Congress to act. There were so many other explosive factors that went into this case, although the fact is that it was drug counselors who took drugs and were then fired for doing that led us to the Religious Freedom Restoration Act that Congress passed.

So what's the arc from that response to its problems becoming apparent with the Hobby Lobby case?

Congress responded by passing the Religious Freedom Restoration Act, which is essentially a constitutional amendment. It certainly oversteps its authority; it's been called a super-statute. It cuts through every other law, and that is also known as a constitutional amendment, which should have gone through the proper amendment procedures in Article VII, but didn't. Since then we have seen the crusaders abusing RFRA, as it's known, to advance their crusade. The idea was that, first, we'll get our weaponized understanding of religious freedom into this federal law, and once we've done that we'll graft it onto the First Amendment of the Constitution, and we will no longer need RFRA. There are so many problems with that, too. RFRA restores — that's the key phrase — it restores religious discrimination and Christian supremacy.

So how does that lead to the Hobby Lobby case?

After RFRA passed, there were a whole bunch of state versions. As with the federal RFRA a lot of people agreed that they were necessary, but when you start getting into the 2010s people start to wake up to the dangers these laws pose, especially to things like the Affordable Care Act, to public accommodation laws, to all sorts of civil rights laws. By the early 2010s you have this divide where conservatives are pushing for RFRAs as a way to weaponize religious freedom, and liberals, progressives and other activists are fighting against those RFRAs. That divide comes to a head in 2014 with the Hobby Lobby case, which was brought under RFRA and really begins the onslaught of this crusade.

There were a flurry of COVID-related cases with the court ignoring precedents that go back 100 years. What happened there, and how did that break with precedent come about?

There's so many problems with the COVID cases, from how they were brought in this expedited shadow docket to how they were decided to the utter ignorance and denigration of medical expertise and science. Unfortunately, we saw a lot of American churches, especially the more conservative churches, attacking public health measures. The coronavirus seems to haunt churches; worship services are almost designed to be super-spreader events. I go over a number of these haunting examples in the book, where you get primary spread, secondary spread and even tertiary spread among people who go to church, then bring the virus home to their family members, who spread it at their workplaces.

If you look at the evolution of the cases, two things become clear. One is that labeling some businesses, such as grocery stores, "essential" and labeling medical care "essential," while labeling others as "nonessential," was taken as an affront by a lot of the crusaders, including the crusaders on the Supreme Court. And they took not extending the "essential" label to churches as an affront, as did Trump. I wonder in the book whether, if we had chosen a different label, we would have seen such a backlash against these public health measures.

The second thing that becomes clear is that Amy Coney Barrett proved absolutely pivotal to the crusade here. There is a very clear inflection point in this area of law, where Chief Justice Roberts, though he is a crusader himself, was not willing to allow the crusade to help spread a pandemic, at least not right away, and Justice Barrett absolutely was. Because once she gets on the court, all of a sudden our 100 years of precedent in this area is overturned.

And the precedent here, I should say, is absolutely clear. Your religious belief, your right to go to church, your right to exercise a religious belief does not include the right to spread a lethal pandemic. That's line No. 2. Your rights don't include the right to infect others with a lethal pandemic and possibly kill them. But once Amy Coney Barrett was put on the court — jammed onto the court, shotgunned onto the court — all of that changed. Not because the law changed, but because the personnel on the Supreme Court changed.

In chapter 15, on religious freedom and "segregation academies," you trace the modern concept of school vouchers back to their origins in the "massive resistance" to school desegregation. How do the current legal battles relate to those earlier ones? What do we need to know about them to clearly see what's going on now?

I think there's a couple of important things. I think this is absolutely crucial, especially when you look back at things like Masterpiece Cakeshop and some of the other cases the Supreme Court has decided recently. The court has said that hostility toward religion, at any point in any law, means that law should be struck down. That's where the court is evolving. Yet in the context of school vouchers or school choice or any of these newly created neo-voucher systems that we're seeing crop up all over the country — which all trace back directly to clear attempts to maintain segregation — the Supreme Court has no problem with upholding those policies and practices. They're more than willing to allow the privatization of education to continue even if the privatization actually furthers segregation, which we know for a fact happens.

This is to me one of the more appalling aspects of this crusade. There is a deliberate assault on public education in this country, and it is being aided by the crusaders and the U.S. Supreme Court. One of the quotes I share in the book makes a point that I think a lot of people don't realize. It's not just an attempt to push for vouchers. It's not just an attempt to privatize education. It's also an attempt to destroy public education, and Jerry Falwell was explicit on this point when he said he hoped "to see the day when . . . we don't have public schools. The churches will have taken them over and Christians will be running them." Kyle Olson, who created National School Choice Week, said that he thought "Jesus would destroy the public education temple." So this is part of a deliberate push to destroy our public schools, and it's rooted in the value of equality that the Supreme Court upheld in Brown vs Board of Education.

In Chapter 6 you write about Fulton v. Philadelphia, the same-sex foster parents case where the court reached a unanimous decision. Explain what that case was about and what you think the liberals missed in going along with it?

I think it's kind of a sleeper case, or rather a sleeper opinion. in a way a lot of people don't understand, part;y because of John Roberts' trick here and partly because of how bad this case could be for the future.

Philadelphia wanted to ensure that its citizens were treated equally. The city itself did not want to discriminate and did not want to ask its taxpayer funds to fund discrimination. It also has the duty to care for children who are in dangerous situations. There are something like 6,000 foster children in Philadelphia who need help and need homes. So the city doesn't want to discriminate, but Catholic Social Services does, and Catholic Social Services had contracted with the city to do some administrative duties of the foster care system, including vetting children for foster care. Catholic Social Services told Philadelphia, "We are not going to vet any caregivers who are LGBTQ. Our God says we don't have to do that."

Just to be clear, Catholic Social Services refused to do the job it was contracted and paid to do, and the city then terminated its contract for foster care vetting. It still contracted with CSS to do a bunch of other stuff where it wasn't going to engage in that kind of discrimination or bigotry, but at bottom CSS refused to do the job it was paid to do, and it sued. It claimed a religious-freedom right to contract with the city to take that taxpayer money and then to discriminate in the name of its God. And the Supreme Court decided — as you pointed out, unanimously — people need to grasp that in this case all nine members of the Supreme Court sanctioned discrimination against a minority in the name of God, taxpayer-funded discrimination, and that really ought to shock us all.

You call it a sleeper case. Why?

It's a sleeper case in that a lot of people think it had a minor impact, and that was probably why the liberals on the court joined. Roberts based his opinion, basically, on a technicality. It reads like the court was looking for a loophole or a technical formality, to avoid making the big decision in the case. But what Roberts effectively said was that unless a law applies to everyone all the time, anybody who claims religious freedom is exempt from that law.

This is really hard for the average person to understand, but every law we have has some exemptions and exceptions and deliberate loopholes, because we don't necessarily want the law to apply to absolutely every single person. What Roberts has said, then, is effectively that every single law in the country now must exempt people who make a religious-freedom claim against it. So if you take it back to the Smith case, that unemployment law was riddled with exceptions, meaning that that case would have come out the other way under Roberts' reading. And that's essentially what the court did in one of the COVID decisions early on. But I don't think people really grasp how big a deal that is, and how much that torpedoes the rule of law and puts the rule of conservative Christianity in its place.

Can you elaborate on that? You argue that by allowing religious exceptions, you're essentially destroying the rule of law. You're erasing at least the second of the three lines, and possibly even the first.

A question I ask throughout the book is: What is the worst that could happen in this case? For instance, in the Kim Davis case, she still gets to go to church, she still gets to pray, she still gets to issue marriage licenses, she still gets to keep her job. She just doesn't get to use the power of her office to impose her religion on other people. What's the worst that would have happened in the Masterpiece Cakeshop case? A business that is incorporated and has all kinds of liability shields under the state law of Colorado would be required to follow other state laws of Colorado. These cases rarely involve a real violation of religious freedom.

But let's ask a different question: What's the worst that could happen with weaponized religious freedom? Because that's what the Crusaders are seeking, and that's what we're getting in a lot of these cases, and the answer really is alarming. Because the rule of law does disappear. The Supreme Court actually wrote about this 150 years ago. They asked what would happen if we allowed everybody to follow the rule of their God instead of the rule of law, and essentially what they said was that everyone would become "a law unto himself," and government could exist only in name in such circumstances. In a system that values one individual's right to act on any belief, there is no law. There is only what the individual believes their God commands. So we will have traded the rule of law for the rule of each conservative Christian's personal God. I don't think people quite realize how dangerous that is.

So what needs to be done in response?

I do get into some solutions to this problem in the book, and I hope the window is still open for those possible solutions. But I think it's very clear that our Supreme Court has been hijacked by the crusaders. The crusade depends on Mitch McConnell, Donald Trump and Leonard Leo cheating and stealing and packing the courts to put their collaborators in place and that requires an immediate fix. We need to expand and rebalance the Supreme Court.

Finally, what's the most important question I didn't ask, and what's the answer?

I think the most important question is why? Why is there a crusade to weaponize religious freedom? A lot of people may recognize that there's this attempt to pervert the meaning of religious freedom, to turn this hallowed protection into a sword. But I don't think a lot of people understand why. This is a question that I really try to get at in the book. I think it's pretty clear that the goal here is to elevate conservative Christianity above the law, while disfavoring nonreligious and non-Christian citizens.

This is a weapon to codify privilege and supremacy. But the answer to the "why" question is that it's largely a backlash against equality realized. Conservative Christianity was once able to discriminate on the basis of race, and now that's largely unthinkable. Conservative Christianity was once able to legally subjugate half the population, and that's not really possible now. Conservative Christianity was once able to discriminate against LGBTQ people, but now it isn't. As more people realize the rights that are due them by virtue of being human, the sphere of religious imposition shrinks, and the crusade is seeking to reclaim that lost ground. Really, when you get down to it, this is about a dominant caste that is waning in cultural status and is desperately trying to cling to that privilege and supremacy. They are using the First Amendment and religious freedom to try and do that.