Gary Johnson's constitutional vision for non-divisive religious liberty

There was bound to be a schism between Libertarian presidential nominee Gary Johnson and his more conservative and right-libertarian potential supporters before the election. This week it finally came, on the controversial but vital issue of religious liberty.

In an interview with Tim Carney at the DNC, Johnson set off alarms by calling the issue, especially in the context of the cake debates, a “black hole”.

Here’s the issue. You’ve narrowly defined this. But if we allow for discrimination — if we pass a law that allows for discrimination on the basis of religion — literally, we’re gonna open up a can of worms when it come stop discrimination of all forms, starting with Muslims … who knows. You’re narrowly looking at a situation where if you broaden that, I just tell you — on the basis of religious freedom, being able to discriminate — something that is currently not allowed — discrimination will exist in places we never dreamed of.

As a fellow left-libertarian, I think Johnson is exactly right, but read the whole thing for the full context. His campaign further clarified what he meant when asked by Taylor Millard.

The governor’s reference is to the fact that when you go down the path of legislating religious liberty, with the best of intentions, there is a very real risk of creating unintended consequences.

It is not in any way a suggestion that religious liberty and freedom is not essential — and protected in the constitution.

The First Amendment prevents Congress from creating an “establishment of religion, or prohibiting the free exercise thereof”. The various government bodies of the US can’t create an official religion, but they can’t keep you from practicing yours either. These are bedrock freedoms of our nation, and Gary Johnson, the only constitutionalist on all 50 state ballots in November, obviously isn’t trying to deny them.

As he and the campaign say, the only defense religious liberty needs is the Constitution itself. Trying to double down on it in the states, specifically to allow religious exemptions to otherwise generally applicable public accomodation laws, both undermines the amendment’s intent and unnecessarily divides communities.

The federal Religious Freedom Restoration Act was passed in 1993 nearly unanimously, unlike recent controversial state versions. It was inspired by a Supreme Court case that ruled American Indians could be fired for using certain natural drugs as part of their religious ceremonies, though it applies generally to all religions at the federal level.

After it was ruled not to apply to the states, and especially after marriage equality was mandated nationwide in 2013, states began passing their own versions of the law with much more odious motives and consequences. That’s what Johnson is opposed to, not the fundamental right to practice one’s religion, but the new and special right to use that religion as a wedge to divide groups against each other.

And he’s not alone. Most polls find that overwhelming majorities of voters support the overall concept of religious liberty, though not equally for all religions. Johson is among them. But when asked specifically if religion ought to be used as an excuse to deny service to specific groups, the country is more divided, with a slim plurality opposed to such legal discrimination, like Johnson.

This is not the disqualifying gaffe that some #NeverTrump conservatives are suggesting. Although it definitely alienates him from some potential social conservative support, it more helpfully identifies him as something new that people aren’t familiar with yet but which could provide dividends in November: a moderate libertarian.

Libertarians have been maligned for decades as radicals and ideologues determined to repeal all laws and eliminate all government. That’s anarchism, of course, not libertarianism, but the caricature sticks. Johnson’s moderation on things like RFRA might be just what his party needs to finally become a mainstream, competitive party with a broad spectrum of views where Americans of many backgrounds can find a political home.