Protect Religion's Place in the Public Square
The founders of the United States faced a thorny question: how best to order their new country so as to preserve religious liberty and the goods that come with it, while also preserving peace between diverse religious factions. The arrangement they struck was, in the words of James Madison, author of the First Amendment, “an entire abstinence of the government from interference [with religion] in any way whatever, beyond the necessity of preserving public order, and protecting each sect against trespasses on its legal rights by others.”
In 2016, the public Georgia Gwinnett College flouted this arrangement by punishing a student for speaking on campus to fellow students about his Christian faith. The student, Chike Uzuegbunam, the son of Nigerian immigrants, sued the college in federal court for violating his First Amendment rights. The attorney general of Georgia defended the college’s actions by arguing that Uzuegbunam’s discourse on his faith amounted to “fighting words” because religious language is “divisive,” and “when directed to a crowd, has a tendency to incite hostility.” The state’s argument reflects a vision for ordering religiously diverse societies that historically has been a rival to America’s: if peace is to be maintained, religion must be driven out of the public square.
Then, in the middle of litigation, Georgia Gwinnett College changed course by abandoning its speech policy—not because it repented of violating Uzuegbunam’s constitutional rights, but as a savvy litigation tactic. Under the precedent of the federal Eleventh Judicial Circuit, which includes Georgia, the government can get out of lawsuits over constitutional violations that have not caused any monetary harm simply by changing its policy. Because the college’s actions had not cost Uzuegbunam any money, the trial court, bound by circuit precedent, dismissed his lawsuit. The court of appeals affirmed the dismissal.
Uzuegbunam, represented by the Alliance Defending Freedom, asked the Supreme Court to review his case, and in July, the Court agreed. As the director of the Islam and Religious Freedom Action Team at the Religious Freedom Institute, a Washington, D.C.-based non-profit, I am proud to have joined other Muslims, Jews, Christians, and even atheists in supporting Uzuegbunam by filing a friend of the court brief asking the Supreme Court to overturn the Eleventh Circuit’s precedent and reverse the dismissal of his lawsuit.
Why would I, a Muslim, support a Christian who was punished for sharing his faith? It is true, of course, that it is in the interest of Muslims that the government remain subject to judicial scrutiny for past violations, even if the offending policy or practice is no longer in place. Indeed, if a member of the dominant faith in America is punished, in Georgia of all places, for practicing his faith, then Muslims are certainly vulnerable to such unconstitutional government action as well.
But equally importantly, we support Uzuegbunam because everyone, not just Muslims, benefits when courts are able to fulfill their role of holding the government accountable to the Constitution. And the first good the Constitution protects is religion, because, as its authors knew, religion is good: it contributes indispensably to the flourishing of the American people. While we may disagree with one another on the means to salvation, we can and must agree to seek the good for one another in this life, and an important condition of that good consists in freedom from government intrusion into religion. With this shared understanding of the common good, religion becomes a source of harmony, not, as the attorney general of Georgia argued, a source of discord that must be suppressed.
Indeed, Americans of any faith or no faith should hope that the Supreme Court makes it clear that the government should not be allowed to duck judicial review of its actions for violating people’s constitutional rights simply by changing its policies in the middle of litigation. As one dissenting judge on the Eleventh Circuit put it, under this view, “the government gets one free pass at violating your constitutional rights.” That cannot be right. The common good, and the rights of all Americans, will be more secure if Uzuegbunam prevails. We will be praying for him.
Ismail Royer, an American convert to Islam, serves as Director of the Islam and Religious Freedom Action Team at the Religious Freedom Institute, a non-profit organization based in Washington, D.C.