Conservative religious freedom advocates are pushing a new twist on an old argument: Liberals and secularists, they argue, will not protect religious freedom in the public square. What this means, according to conservatives, is that the secular left is only willing to tolerate religious practice in private places, such as one’s home or place of worship. But if believers leave these cloistered environments, they will find that the special protection that religious freedom receives does not follow them. It only remains in effect behind closed doors. So, as Supreme Court Justice Samuel Alito suggested in his recent speech in Rome, the freedom of religious individuals will not be respected by secular people “when you go out into the public square in the light of day.”
There are two fundamental flaws in this argument, leaving aside the obvious rebuttal that it doesn’t seem to match the reality that many of us live. When Jehovah’s Witnesses or Mormons follow the dictates of their beliefs and knock (unsolicited) on my door to discuss their religion with me, it doesn’t seem like the faithful proselytes are confined to their homes or temples.
The first flaw in the “religion is only protected privately outside of the public square” argument is that it confuses two understandings of what private and public mean. Private can mean something that is confidential and out of the hearing or sight of others. Public, on the other hand, means open and exposed to third parties. According to this understanding, religion is not and should not be excluded from the public square. It is a straw man argument to insist that secular people want religion to be hidden in plain sight.
There is, however, another understanding of the private and the public, and here there are legitimate and important concerns about religion in the public square. The private is understood as something owned and controlled by individuals and institutions that are not affiliated with or part of the government. A private sector business venture such as a Walmart store is an obvious example. But private here has nothing to do with the idea that private means out of sight or hidden away. Walmart stores, like most private sector institutions, are fully visible and open to third parties.
Public understanding is also different here. When we talk about the public sector versus the private sector, we are talking about the government. Likewise, in discussing religious participation in the public square in this sense, we are referring to religious participation in government operations and activities. Both secular people and many religious people recognize that when religion is involved in government—in the public square—religious liberty issues involve special concerns that must be addressed.
Significant problems arise when religion is intertwined with government activities and programs. For example, government officials often exercise discretion in determining whether individuals will receive benefits or be subject to penalties. Given this reality, government officials or employees who pray and proselytize raise serious risks of religious coercion. This is true when public school teachers invite students to join them in prayer, when judges ask litigants and their lawyers to pray with them before a trial begins, or when aid administrators social workers proselytize for potential beneficiaries.
There is no implied coercion when a Jehovah’s Witness knocks on your door. They have no authority over your welfare and you can close the door as you see fit. Protecting their religious freedom does not compromise your freedom. A different dilemma confronts the individuals to whom government proselytes are directed.
Let’s take another example. The government often funds non-governmental actors to provide public services. When religious institutions receive such contracts or grants, often for social welfare programs, we again face particular problems. Often, religious institutions insist on religious freedom grounds on the right to discriminate by hiring only members of their own faith to run these programs. It is one thing to recognize that privately funded religious institutions can use the donations they receive to promote their religious beliefs. It’s a very different matter when religious institutions that run taxpayer-funded programs claim the right to reserve the jobs created to staff those programs only for members of their faith.
A similar problem arises with regard to the beneficiaries of state-funded programs. Most government-funded programs are intended to serve the general public without regard to the religious beliefs of potential recipients. Yet religious institutions can claim, under the banner of religious freedom, the power to deny benefits to otherwise eligible recipients who do not adhere to the beliefs of the institution.
When the public square is understood to be the government, religion entering the square and enjoying special religious freedom protection raises far more legitimate concerns than false claims that religious individuals renounce their faith when they walk through the front door.
The second flaw relates to the failure to recognize the overlap and tension between the free exercise of religion and freedom of expression. Religion is a powerful voice in American society. Religious exercise is often expressive in nature. Prayer, sermons, hymns, proselytism are words. They communicate messages. Often the same activity can be characterized as both religious exercise and speech.
Given this overlap, how are we to understand the argument that in the public square – that is, in public places like the sidewalks or the lobby of a government office building – the exercise religious should benefit from “special” protection beyond that granted to secular activities? Does this argument support that in these public places religious speech should receive more protection than secular speech?
This assertion would violate the most fundamental and rigorously enforced principle of free speech doctrine: Discrimination by point of view is prohibited unless it can be justified under the strictest scrutiny. that the courts apply. The Supreme Court has ruled in numerous cases, such as Good News Club v. Milford Central School (2001), that religion is a point of view of speech. Accordingly, the doctrine of free speech prohibits the government from engaging in viewpoint discrimination by offering religious expression and speakers less or more protection than secular expression and speakers receive. in the same marketplace of ideas. If the government prohibits the distribution of leaflets or solicitation in the lobby of government office buildings, the standard of scrutiny of this speech regulation must be applied with the same rigor, as those who distribute leaflets or solicit funds consider that their activities are required by their faith.
Thus, even if it is about access to open public places in our society, the public square or the public square, while religion cannot be denied access to these places, when it is acts as a religious exercise of expression, it is not at all clear that it can benefit from any special protection beyond that accorded to secular speech.
Alan Brownstein is professor of law emeritus at the Davis School of Law at the University of California. He has written numerous articles for academic journals and opinion pieces for other media on a range of constitutional law topics. He is a Fellow of the American Law Institute and served on the legal committee of the Northern California American Civil Liberties Union. He holds a BA from Antioch College and a JD (magna cum laude) from Harvard Law School, where he served as editor of the Harvard Law Review.