Looking Back: A Snapshot of Religious Liberty in 2016

By Liberty McArtor Published on December 30, 2016

It’s been a difficult year for religious freedom in America, but the future holds “huge windows of opportunity,” says Kelly Shackelford, constitutional attorney and president of the non-profit religious liberty law firm First Liberty Institute.

Shackelford spoke with The Stream regarding the state of religious freedom in 2016, and what Americans need to watch out for in the future.

“The biggest danger area is religious liberty in the workplace,” Shackelford said, citing people like lay-minister Eric Walsh, bakers Aaron and Melissa Klein, and Marine Monifa Sterling (whose case has been appealed to the U.S. Supreme Court) as examples of people who have lost their jobs because of their religious beliefs.

“It is very dangerous if religious freedom is banned from the place people spend most of their waking hours,” Shackelford said. “If people are forced to choose between feeding their family and religious freedom, religious freedom could disappear.”

Crack Down on Religious Expression

2016 saw an “increase in attacks on religious liberty,” Shackelford said. He said that one incident that “stands out” is the case of Oscar Rodriguez, an Air Force veteran who was physically removed from a colleague’s retirement ceremony because he was giving a flag-folding speech that included the word “God.”

“It was a first, with uniformed military laying hands on a citizen because he mentioned God,” Shackelford said.

While the assault on Rodriguez’s free religious expression was physical and blatant, others were more subtle.

In September, the U.S. Commission on Civil Rights issued a report that called religious freedom a code word for intolerance. Martin Castro, author of the 307-page report entitled Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties, wrote:

The phrases “religious liberty” and “religious freedom” will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance.

As Stream senior editor Tom Gilson wrote in a response: 

He’s [Castro’s] pronouncing conservative Christian doctrine wrong. That’s not his job. Apparently he doesn’t know that the First Amendment was written to prevent governmental officials from giving one religious doctrine preference over another.

Some states implemented policies aligning with Castro’s logic, passing so-called anti-discrimination regulations mandating how businesses, including churches, can use their facilities or talk about gender. In effect, laws like these could result in punishment for religious groups and churches who adhere to a biblical understanding of gender and sexuality.

Churches in Iowa and Michigan pushed back.

Both First Liberty Institute and Alliance Defending Freedom (ADF), another non-profit legal group, represented churches in Iowa that challenged a policy published by the state’s Civil Rights Commission, which defined churches as places of public accommodation, making them subject to the Commission’s rules regarding the use of bathroom facilities and speech regarding gender.

ADF also helped a church in Michigan challenge a law that would have potentially jailed pastors who spoke against same-sex marriage.  

Both the Iowa Commission and Michigan backed off of or altered the regulations after legal action from First Liberty and ADF.

Several religious groups and faith-based non-profits also faced a dilemma under Obamacare’s Health and Human Services (HHS) mandate, which requires employers to cover contraceptives for their employees.

While the Supreme Court case Burwell v. Hobby Lobby settled the issue in favor of faith-based for-profit businesses in 2014, religious non-profit groups fought the mandate in 2016.

A group of nuns called the Little Sisters of the Poor became the face of the battle, leading the non-profit fight against the HHS mandate in the Supreme Court case Zubik v. Burwell

While the Supreme Court didn’t explicitly rule in the nuns’ favor, it also declined to rule against them, instead sending the case back to lower courts to be worked out between the opposing parties.

Election 2016

Religious liberty became a hot issue for both sides during the election season. President-elect Donald Trump frequently advocated the repeal of the Johnson Amendment of 1954 that prevents pastors from endorsing political candidates.

Democratic nominee Hillary Clinton repeatedly criticized Trump for his 2015 statement proposing a ban on all Muslim immigrants, which at the time also drew heavy criticism from Republicans, including now-Vice President-elect Mike Pence.

Trump’s team has since clarified his official position and denied that Trump would support an immigration ban based solely on someone’s religious beliefs; rather advocating for “extreme vetting” and a potential ban on immigration from certain countries where terrorist activity is high.

The Republican and Democratic platforms differed starkly when it came to religious liberty, as Stream contributor Maggie Gallagher reported in August, writing that “the Republican platform promises a strong, deep, philosophically grounded promise to protect and defend religious liberty.”

“This is about as strong (on religious liberty) as the Democrats promise to be,” Gallagher wrote of the Democratic platform, quoting from it: “We support a progressive vision of religious freedom that respects pluralism and rejects the misuse of religion to discriminate.”

Stream contributor and professor George Yancey suggested in November after the election that Progressives’ hostility to the religious liberty of Christians is one reason so many conservatives voted for Trump, despite other misgivings about his candidacy.

Michael Wear, a Christian and former Obama White House staffer, suggested something similar in an interview with The Atlantic published Thursday entitled “Democrats Have a Religion Problem.” Wear said of Democrats, “It doesn’t help you win elections if you’re openly disdainful toward the driving force in many Americans’ lives.”

The election results leave Shackelford optimistic about the future of religious freedom. “I see huge windows of opportunity to advance religious freedom under the new administration,” he said. “There should be a big change in the hundreds of judges appointed being more favorable to religious freedom and the Constitution.”


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