Baptists have long been the dominant Protestant faith in America. The church's more prominent forbears are credited with championing the ideal of religious freedom that would later be enshrined in the First Amendment's religious protections.
That legacy of persecution and defending religious freedom is ingrained in most followers of the faith, who call it "soul freedom." And it's a big reason the Baptist Joint Committee for Religious Liberty was founded 80 years ago to provide "reliable leadership on church-state issues as it leads coalitions of groups striving to protect both the free exercise of religion and to defend against its establishment by government," according to its website.
The BJC underwent a change in leadership at the beginning of the year with the retirement of Brent Walker, who has served as executive director since 1999. He decided to join the BJC 10 years earlier while attending a seminar sponsored by Americans for the Separation of Church and State, at which BJC representatives spoke.
Walker had already left a successful private law practice with plans to become a pastor. He was in his third year of seminary when he attended the seminar in Washington, D.C.
"During that three-day seminar, the light came on that this was a good intersection of my legal background, my commitment to ministry and to Baptist principles," Walker said, recalling what lead him to join the BJC legal staff in 1989.
His successor's Baptist upbringing also influenced her decision to volunteer at the Washington, D.C.-based BJC while attending Georgetown University.
"I knew I had found my vocation," said Amanda Tyler, who assumed responsibilities of executive director on Jan. 2. "I’ve worked in private legal practice, for a federal judge and on a congressional staff since then, but the opportunity to serve one of America’s most important values drew me back to work for the BJC after 15 years away."
Walker, 66, was at the BJC when it took a leadership role in Congress passing the landmark Religious Freedom Restoration Act in 1993 and the Religious Land Use and Institutionalized Persons Act seven years later. Tyler, 38, was also at the BJC during the passage of RLUIPA. Both laws give policymakers and judges guidance balancing religious freedom against other competing public interests.
Both Walker and Tyler took time this month to reflect on their work with the BJC and share their outlook on key religious freedom issues facing the country.
The interview via email was edited for length:
Deseret News: What have been the top three precedent-setting religious liberty cases/events in your careers?
Brent Walker: Taking them together, I would first point to RFRA and RLUIPA. Those protections for religious liberty, in the aftermath of the 1990 Native American peyote decision that gutted the (First Amendment's) Free Exercise Clause of any meaningful protection, have proven to be invaluable.
Second, we worked to defeat in June 1998 the so-called “Istook Amendment” — the most potentially damaging threat to the First Amendment in my years in Washington. It would have changed the First Amendment’s religion clauses to allow state-sponsored prayer in public schools and open the door wide for government funding of religious teaching and subsidies for houses of worship and other religious enterprises. Working in coalition with many other groups, we helped convince the House of Representatives to turn away this misguided proposal sponsored by Rep. Ernest Istook, R-Okla. Our rallying cry in the debate was “Istook is mistook.”
Finally, the proper role of religion in the public schools has long been a topic of controversy and disagreement. I think we have made major strides here promoting the idea that voluntary student expression of religion in a variety of ways is perfectly permissible as long as it does not disrupt the educational process or infringe upon the rights of other students not to participate; but state-sponsored religion and religious exercises should not be permitted.
Our work on this issue has taken the form of friend-of-the-court briefs in cases dealing with prayer in public schools and protecting the rights of student religious clubs to meet before and after the school day. We also have labored long to draft consensus statements and guidelines, helping school officials and teachers to enforce the distinction between impermissible government-sponsored religion and voluntary religious expression by students.
Amanda Tyler: My BJC career has been much shorter than Brent’s, but I am most proud of the work we did on the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000 when I was first on staff. Passed without a dissenting vote, RLUIPA remains an important tool to protect against encroachment by the government on the free exercise of religion in two narrow areas. Just recently, a judge ruled that a New Jersey town violated RLUIPA when its planning board treated a mosque’s application differently than applications from churches and synagogues.
DN: How have RFRA and RLUIPA held up to legal tests over the past 20 years? Have they served their purposes?
Walker: Yes, both of them have been very important and helpful protections for religious liberty. Both are based on legal tests that preceded them, and they set forth a delicate balance between accommodating the exercise of religion and protecting the health, safety, welfare and rights of third parties and society generally. Do we always agree with the outcome in any given case? Will the religious claimant always win? No, but both laws provide a legal framework within which those claims can be taken seriously and, in many instances, result in successfully accommodating religious liberty claims.
DN: Congress may add to RFRA by taking up the proposed First Amendment Defense Act. Is it needed?
Walker: We are suspicious of all attempts to amend and upset the delicate balance embodied in RFRA, one way or another. The First Amendment Defense Act is an attempt to foreordain victory of religious freedom over nondiscrimination. But, I hasten to add, the so-called Do No Harm Act would explicitly amend and virtually gut RFRA and permit the nondiscrimination principle always to prevail. Both of these attempts to avoid RFRA’s delicate balancing test in order to give one side or the other an advantage are ill-advised. It’s a good example of how people on both sides of the debate can approach the issue without trusting the outcome of the RFRA calculus that examines both sides of the argument to come up with a result that is helpful and fair.
DN: Explain the BJC's view on religious groups wanting to work with government to help address community needs?
Tyler: I personally worked on this issue when I was a legal assistant for the BJC. “Charitable Choice” (and its later iterations in the broader “Faith-Based Initiative”) was a relatively new idea then, and it became a central legislative and executive branch issue with the Bush administration.
The BJC led in helping to explain the right way for religious organizations to work with the government in delivering social services. Those faith-based entities need to guard themselves against being co-opted by the state and also provide necessary protections to be sure that everyone’s religious liberty is protected. That’s why the BJC has long supported the position that faith-based providers may not use government funds to pay for overtly religious activities, such as worship, religious instruction or proselytization. As Baptists, we have both theological and denominational reasons for this prohibition, but we also know from a practical standpoint that once government gets involved in funding your mission, it isn’t long before it starts dictating how the program is run and demanding accountability.
At a recent BJC event, the Rev. Dr. Raphael Warnock (pastor of Ebenezer Baptist Church in Atlanta) summed up the perils best: “Make sure your nonprofit doesn’t turn you into a non-prophet.”
The BJC has encouraged any interested church to set up a separate legal organization to accept the funds and run the organization consistent with constitutional safeguards. If the provider wants to offer religious activities to clients, it can do so as long as those are privately funded, separately offered and clearly voluntary.
DN: What's at stake in the ongoing tension between religious liberty and LGBT protections through nondiscrimination laws and the 14th Amendment? How do you see this issue being sorted out over the near- and long-term?
Walker: There is often going to be a tension between the accommodation of religious liberty and its effect on the health, safety, welfare and rights of third parties and society generally. As mentioned earlier, this can be negotiated through the balancing test in RFRA. With respect to religious liberty and LGBT rights in particular, I think the so-called “Utah Compromise” is a model for other states and municipalities to follow, seeking a “both/and” solution. We can — we must — have religious liberty and nondiscrimination, and we should follow Utah’s example in working together to negotiate a fair compromise.
Tyler: I agree. There is a real danger when there is an “all-or-nothing” approach taken by either side. Pitting religious liberties against civil liberties is a lose-lose for everyone involved.
DN: What is the top religious liberty issue currently?
Walker: One overarching issue has to do with a proper understanding of the separation of church and state. The institutional — and to some extent, functional — separation is an indispensable means to the end of ensuring religious liberty. Some dispute even the propriety of separation and are quite willing to allow government to help promote their religion, thinking short term and not realizing it can come back and bite them through regulation and other detrimental effects by government. They see separation as an act of hostility to religion. Others, believing that separation is an end in and of itself, seek to enforce it with such vigor that it can militate against religious accommodation and result in a secularization of culture. Government should adopt a posture of “benevolent neutrality,” as the U.S. Supreme Court has dubbed it.
On the knife edge of American neutrality, we must come down on the benevolent side, not the malevolent side. Separation is extremely important, but at the same time always instrumental.
Tyler: Defining and defending religious liberty in our age of increasing pluralism is a challenge that manifests itself in many different areas. We Baptists were in the religious minority among the early settlers of this country. So, remembering those roots and what it’s like to be persecuted and misunderstood are important vantage points for us going forward. We are very concerned about intolerance and the marginalizing of people of minority faiths, which is notably happening to American Muslims. There are sadly many other examples, including a resurgence of anti-Semitism. Hate rhetoric has unfortunately gone mainstream, and — among the many concerns that come with that — there are certainly troubling implications for religious freedom.
Proposals to exclude entire faith groups from the United States or to enact additional barriers for entry or citizenship to people because of their religion violate our "first freedom" and need to be challenged and defeated. We founded this country with religious freedom as our first freedom, and it should be no surprise that that attracted people to our shores. Now we are living out that pluralism and not just in the context of religious liberty but in many other areas of our society. It is a challenge, but we have the constitutional tools to deal with that pluralism.