Conservative defenders of religious liberty are pushing a new version of an old argument: Liberals and secularists, they contend, will not protect religious liberty in the public square. What this means, conservatives argue, is that the secular left is only willing to tolerate religious practice in private locations, such as one’s home or house of worship. But If religious believers leave those cloistered environments, they will find that the special protection religious liberty receives does not follow them. It only remains in force behind closed doors. Thus, as Supreme Court Justice Samuel Alito suggested in his recent speech in Rome, the liberty of religious individuals will not be respected by secularists “when you step outside into the public square in the light of day.”
There are two fundamental flaws with this argument, leaving aside the obvious rejoinder that it doesn’t seem to comport with the reality many of us experience. When Jehovah’s Witnesses or Mormons follow the dictates of their beliefs and (unsolicited) knock on my door to discuss their religion with me, that doesn’t seem like the proselytizing faithful are being restricted to their homes or temples.
The first flaw with the “religion is only protected in private outside of the public square” argument is that it confuses two understandings of what private and public mean. Private can connote something which is confidential and out of the hearing or sight of others. Public, in contrast, means out in the open and exposed to third parties. Under this understanding, religion is not and should not be excluded from the public square. It is a strawman argument to insist that secular people want religion to be hidden from view.
There is another understanding of private and public, however, and here there are legitimate and important concerns about religion in the public square. 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 enterprise 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. Walmart stores, like most private sector institutions, are fully visible and open to third parties.
The understanding of public is different here as well. When we speak of the public sector in comparison to the private sector, we are talking about government. Similarly, in discussing religious participation in the public square in this sense, we are referring to religious participation in government operations and activities. Both secular and many religious people recognize that when religion is involved in government — in the public square — religious liberty issues implicate distinctive concerns which need to be addressed.
Significant problems arise when religion is mixed into government activities and programs. For example, government officials often exercise discretionary authority in determining whether individuals will receive benefits or be subject to sanction. Given that reality, government officials or employees praying and proselytizing raises 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 attorneys to pray with them before a proceeding begins, or when welfare administrators proselytize potential beneficiaries.
There is no implicit coercion when a Jehovah’s Witness knocks on your door. They have no authority over your well being, and you can close the door as you see fit. Protecting their religious liberty does not undermine your freedom. A different dilemma confronts individuals addressed by government proselytizers.
Consider another example. Government often funds non-governmental actors to provide public services. When religious institutions receive such contracts or grants, often for social welfare programs, once again we confront special problems. Often religious institutions insist on religious liberty grounds on the right to discriminate in hiring only the members of their own faith to staff these programs. It is one thing to recognize that privately funded religious institutions may use the donations they receive to promote their religious beliefs. It is a very different issue when religious institutions operating taxpayer funded programs claim the right to reserve the jobs created to staff these programs solely for members of their faith.
A similar problem arises with regard to the beneficiaries of publicly funded programs. Most government funded programs are intended to serve the general public without regard to the religious beliefs of potential beneficiaries. Yet religious institutions may claim under the banner of religious liberty the authority to deny benefits to otherwise eligible beneficiaries who do not abide by the institution’s beliefs.
When the public square is understood to be government, religion entering the square and receiving special religious liberty protection raises far more legitimate concerns than spurious claims about religious individuals surrendering their faith when they walk out the front door.
The second flaw involves the failure to recognize the overlap and tension between the free exercise of religion and freedom of speech. Religion is a powerful voice in American society. Religious exercise is often expressive in nature. Prayer, sermons, hymns, proselytizing are speech. They communicate messages. Often, the same activity can be accurately 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 sidewalks or the lobby of a government office building — religious exercise should receive “special” protection beyond that provided to secular activities? Does this argument maintain that in these public places religious speech should receive more protection than secular speech?
This contention would violate the most basic and rigorously enforced principle of free speech doctrine: Viewpoint discrimination is prohibited unless it can be justified under the strictest scrutiny courts apply. The Supreme Court has held in numerous cases, such as Good News Club v. Milford Central School (2001), that religion is a viewpoint of speech. Accordingly, free speech doctrine prohibits government from engaging in viewpoint discrimination by providing religious expression and speakers lesser or greater protection than secular expression and speakers receive in the same marketplace of ideas. If the government prohibits leafletting or soliciting in the lobby of government office buildings, the standard of review for that regulation of speech should be applied with equal rigor, without regard to whether those distributing leaflets or soliciting funds consider their activities to be required by their faith.
Thus, even if we are discussing access to the open public places in our society, the public or town square, while religion cannot be denied access to such locations, when the religious exercise at issue is expression, it is not at all clear that it can be provided special protection beyond that provided to secular speech.
Alan Brownstein is a professor of law emeritus at the University of California, Davis School of Law. He has written numerous articles for academic journals and opinion pieces for other media on a range of constitutional law subjects. He is a member of the American Law Institute and served on the Legal Committee of the Northern California American Civil Liberties Union. He received his B.A. degree from Antioch College and earned his J.D. (magna cum laude) from Harvard Law School, where he served as a Case Editor of the Harvard Law Review.