Call me a person of faith, but I believe that there is only one thing that is “Undeniable,” and it is not the handiwork of the Liberty Institute. Called “Undeniable: The Survey of Hostility to Religion in America,” this document actually disproves its central thesis – that the United States is becoming increasingly inhospitable to the Constitutional guarantees of religious liberty.
It takes a lot of time (or some excellent research assistants) to go through 350-plus pages of reportage. Even reading the 100-page executive summary is daunting, perhaps what Liberty Institute hopes will dissuade a critical look at its theses. Fortunately, all of the incidents are documented, and since most of them are court cases, it is easy to go beyond the Institute’s summations and look at the facts.
First of all, let’s talk definitions. “Hostility to religion” is never defined in this report. We are left to surmise that any objection to religious practice indicates an attack on religion itself. In fact, the incidents reported overwhelmingly involve individuals who attempt to impose their religious beliefs or practices on others. The well-known “Hobby Lobby” case, which affirmed the ability of closely-held private companies to deny certain medical benefits to employees based on the religious convictions of their owners, began with the actions of the Green family, devoted adherents of their faith. The owners sought exemption from the Affordable Care Act requirements to provide certain reproductive health services to employees who did not share their beliefs. Less well-known are cases in which public prayer, public displays or public mentions of religious faith were challenged by those who did not share the beliefs of the presenters. A smaller category involves individuals who feel denied equal treatment – Muslim inmates who are denied halal food while Jewish inmates receive kosher food; Sikhs whose symbolic knives (kirpans) are restricted while similar pocket knives are not; Christians prohibited from making religious tracts available on public land. A yet smaller category involves individuals seeking exemptions from long-standing policies they consider discriminatory, including restrictions on religious garments and hair length. In relatively few cases did any agency or individual seek to enlist the government in compromising a religious organization’s declared principles of faith.
Second, let’s talk results. Interfaith Alliance has been distressed at some court decisions (especially “Hobby Lobby”), but we continue to celebrate the process by which those decisions are reached. In fact, most of the cases in which any infringement on personal liberty has been documented have been decided in favor of the individual. The courts, including the Supreme Court, take seriously the cautions of the First Amendment against the establishment of any religion against the rights of the private citizen. It is disingenuous for Liberty Institute to proclaim, “If this hostility is not identified, defeated, and deemed socially unacceptable, then we will forfeit the benefits of religion and freedom.”
Third, let’s talk credibility. Three cases illustrate the purposely alarmist misrepresentations in the report. At the top of 
the list is the accusation “Army Training Materials Label Christians ‘Extremists’ in the Same Category as Al-Qaeda.” The story is unfortunate. An untrained speaker at an Army Reserve training session inserted a single slide into her presentation that misrepresented materials on a well-known “hate-watch” list. The Army apologized and corrected the mistake. However, the story was circulated by Fox News Radio (the source of Liberty Institute’s inclusion) and provoked Rep. Randy Forbes (R-VA) to enter it into the record at House Armed Services Committee hearings as representative of Army practice. In another case, a dispute over transferring a small patch of Federal land to private ownership to preserve a World War I memorial (in this case, a cross) was reported as hostility to religious expression. In the third instance, a religious fraternity at a state school sued for recognition in spite of its violation of anti-discrimination policies. By declaring the group a religious organization – both accurate and honest — the matter was resolved.
Fourth, let’s talk consistency. A challenge by authorities to certain religious practices – consider the fourth grade student whose gift to public-school classmates included the message “Jesus is the reason for the season” – is considered hostility to religion. At the same time, a challenge by practitioners to recognized authorities – consider the high school student who decided to change the topic of her assigned essay from “Drama” to “The Life of Jesus” without approval – is also considered hostility to religion.
The presumption of the Liberty Institute report is that anything attempted in the name of sincerely held religious beliefs is protected by the Constitution. And that’s simply nonsense.
What is protected by the Constitution is the rule of law. Throughout American history we have relied on independent courts to determine what constitutes the blessings of liberty that are our legacy and guarantee, including religious liberty. Sometimes the courts take us down a detour that later must be corrected, but mostly our courts assist the moral arc of the universe in bending toward justice. And unlike “hostility to religion,” justice has a definition: it is that which balances moral values with personal conduct without favor to any claimant.
The rise in so-called incidents of hostility to religion may be accounted for by the rise in provocations on both sides. For this, the Liberty Institute ought to join Interfaith Alliance in gratitude for the courts which provide a neutral ground to hear the issues, not just the passions. Our religious liberty is not measured by what an individual can get away with. Rather, it is measured by the protections of individual convictions from government interference and the protection of community practices from individual convictions. Religious liberty is neither a “majority-rule” value nor is it a vehicle for the tyranny of the extreme. In the United States it means that no harm comes to an atheist who must carry money with “In God We Trust” on it, and that no non-Christian may be made to feel less an American for not praying in the name of Jesus at a high school graduation.
The Liberty Institute survey is fraudulent in its framing and inflammatory in its exposition. All of which is to say, it is eminently deniable.
Rabbi Jack Moline is the executive director of Interfaith Alliance
