Ken Starr on Religious Liberty: ‘The Next Crisis Is Coming’

In light of what Starr describes as the “steady erosion of our nation’s commitment to first freedoms,” what can religious Americans do? Starr offers three important suggestions.

Book cover of Ken Starr's new book
Book cover of Ken Starr's new book (photo: Courtesy photo)

Ken Starr has written a new book, and it is really good. Religious Liberty in Crisis: Exercising Your Faith in an Age of Uncertainty is a handy primer on the special protection afforded religion under the law and a plan for how religious people in the U.S. can weather these most uncertain times.

Most Americans don’t know that Starr, a former judge on the U.S. Court of Appeals for the D.C. Circuit and Solicitor General, is one of the country’s top constitutional law experts. He is also a devout Christian. That said, Starr has skin in the game, so to speak, when it comes to the guarantee of religious liberty in the United States. In the opening chapter of his book, Starr explains its purpose:

“If you know your rights, if you understand the constitutional constraints placed on government when it comes to religious liberty, you’ll be ready to fight when the time is right. You’ll know how and when to act when the next crisis comes calling. And, make no mistake about it, the next crisis is coming.”

Yes, “the next crisis is coming.” Or perhaps it’s already here.
Starr asks, “When does the government’s authority trump religious assembly and expression?” This is a question forced on us this past year by some governors and mayors — Starr calls them “American Caesars” — who put faith in lockdown. The Supreme Court’s eventual protection of the right to worship in New York and California is a postscript to Starr’s book (Religious Liberty in Crisis went to the printing press before the Court ordered emergency relief from orders related to church attendance and worship) and is entirely consistent with the special protection religious belief receives under the Constitution.

More than a review of landmark religion cases, Starr’s book sets out “Great Principles” such as autonomy, equality and accommodation that “undergird our system of ordered liberty” and have guided the Court in religious freedom cases. The book is largely an examination of these principles in light of the Supreme Court’s decisions regarding religion.

Autonomy, explains Starr, “allows the faithful to freely exercise the tenets of their religion without fear of government interference, or of discrimination — a founding principle of our constitutional order.” It protects even such extreme cases as the ritualistic slaughter of animals by a Santería group in Florida and underlies the vital “ministerial exception” — a rule barring government from scrutinizing the hiring and firing policies and practices at religious schools of employees who pass on the faith.

Equality allows prayer before beginning legislative sessions and the chaplaincy in Congress so long as they are not used “to denigrate minority or other faith traditions” or “employed deliberately to exclude certain faith communities from participation.” At its core, you see, the equality principle doesn’t allow for coercion. 

A West Virginia law passed a month after Pearl Harbor that required all school children to salute the flag — even Jehovah’s Witnesses who viewed saluting the flag as violating God’s law — couldn’t stand. The equality principle also requires religious expression to be placed on equal footing with other “secular” activities. It vindicated a devout evangelical Christian high school student in Nebraska who wanted to launch an extracurricular Bible study club. Since school officials allowed other student-led groups to use school facilities after school hours, the Bible club couldn’t be excluded.

Another “Great Principle” identified in Starr’s book is accommodation. He explains that “the United States government can and should accommodate the religious needs and expressions of the American people.” And then, to address potential naysayers, he continues by noting that “to ‘accommodate’ is not to ‘establish’ within the meaning of the First Amendment.” How does this play out in the case law? A Seventh-day Adventist who lost her job in a textile mill in South Carolina after she refused to work on the Sabbath (in her case, Saturday), and was denied unemployment benefits, had recourse under this principle. Similarly, Wisconsin’s compulsory education law could not be enforced against objecting Amish communities. Accommodating religious belief, explains Starr, is important, “lest the state and religion become aliens to each other, hostile, suspicious and even unfriendly.”

One bothersome decision, however, interferes with the principle of accommodation. It was written by the late Justice Antonin Scalia. The state of Oregon had passed a sweeping anti-drug law forbidding the use of various drugs, including peyote, a hallucinogen used in the worship services of some Native Americans. Two members of that faith community were fired from their jobs with a private drug rehabilitation organization and then denied unemployment benefits because their discharge was on grounds of work-related “misconduct.” Scalia, in upholding the state’s denial, crafted an entirely new approach. Oregon could enforce a law that was generally applicable and “neutral” in terms of religion without having to allow for a religious-based exception.

What was the reaction to the Oregon peyote decision? Congress passed the Religious Freedom Restoration Act (RFRA) which restores the Court’s prior standard of applying strict scrutiny to laws enacted by the federal government that significantly burden free exercise of religion. After the Court ruled that RFRA did not apply to state governments, many states passed their own RFRAs. Scalia’s Oregon decision continues to apply to First Amendment challenges to state and local laws that burden religious exercise. And it has been causing some serious problems recently.

An example involves the role of church-run organizations in addressing the needs in their community. City officials in Philadelphia have refused to renew its contract with the foster care program run by the Archdiocese of Philadelphia because the agency refuses to certify same-sex married couples as foster parents. The City points to its non-discrimination policy and the Oregon case. The Supreme Court is reviewing the matter. What is Starr’s position? Scalia’s decision “was a creative but misguided exercise in judicial doctrine, which needs to go away.” A decision in the Philly foster care case is expected early this summer.

Starr asserts that the “Great Principles” of autonomy, equality and accommodation “vouchsafe the grace-filled institutions that make life in America much more caring and compassionate.” He also identifies a threat — the “harm principle” — that looms ahead. “In the views of millions of secularist Americans, religion is now a bad thing,” observes Starr. “Their reasoning: religious beliefs and practices inflict harm on individuals.”
The “harm principle” is already at work in the Equality Act, sweeping legislation that inserts sexual orientation and gender identity into federal civil rights laws well beyond the scope of last year’s Bostock decision. Among the many problems with the Equality Act is that it legislates away religious claims or objections. Having passed in the House with the full support of President Biden, only the Senate can stop this embodiment of the harm principle.

The Equality Act still needs to pass the Senate before it becomes law. Unless they erase the filibuster, I don’t think they can get the 60 votes needed for cloture and passing it. If the Senate does, then it would go to the Court.

In light of what Starr describes as the “steady erosion of our nation’s commitment to first freedoms,” what can religious Americans do? Starr offers three important suggestions. First, make a difference in your community by engaging in local politics. Second, vote your faith. And third, “become a genuine friend of freedom” by knowing the principles that secure religious freedom and by supporting groups defending its exercise in America. (I would only add a fourth suggestion: Pray more.)

You’ll be pleased to discover that Starr spares his readers a litany of italicized case names. Instead he describes the historical context of controversies that resulted in landmark religious freedom cases. It’s a great reminder that behind every legal battle for freedom there are real people seeking redress. Religious institutions and believers in America face mounting hostility in an increasingly secular society. Ken Starr’s Religious Liberty in Crisis injects some optimism — which we could all use right now.

Andrea Picciotti-Bayer is the director of the Conscience Project.