When preparing the 2016 Democratic Party platform, the drafting committee promised: "We will do everything we can to protect religious minorities and the fundamental right of freedom to worship and believe.”
But in the final text, Democrats substituted a broader term -- "freedom of religion." After all, critics of Hillary Rodham Clinton were attacking her occasional references to "freedom of worship," as opposed to the First Amendment's defense of the "free exercise" of religion.
"Freedom of worship" suggested that religious doctrines and traditions were acceptable, as long as believers remained inside their sanctuaries. "Freedom of religion" language would have implications for evangelists, educators, artists, doctors, soldiers, business leaders, social activists, counselors and other citizens in public life.
Thus, gadfly candidate Beto O'Rourke stepped into a minefield when he answered this question during a CNN "town hall" on LGBTQ issues: "Do you think religious institutions -- like colleges, churches, charities -- should lose their tax-exempt status if they oppose same-sex marriage?"
O'Rourke drew cheers and applause with his quick response: "Yes. There can be no reward, no benefit, no tax break, for anyone or any institution, any organization in America, that denies the full human rights and the full civil rights of every single one of us." As president, he added, he would "stop those who are infringing upon the human rights of our fellow Americans."
This stance would draw a different response from many other Democrats.
"Journalists should ask O'Rourke and every other Democratic candidate how this policy position would affect conservative black churches, mosques and other Islamic organizations, and orthodox Jewish communities, among others," argued law professor John Inazu of Washington University in St. Louis, writing for The Atlantic. "It is difficult to understand how Democratic candidates can be 'for' these communities -- advocating tolerance along the way -- if they are actively lobbying to put them out of business."
Meanwhile, this O'Rourke statement will remind religious leaders of the U.S. Supreme Court's Obergefell v. Hodges decision affirming same-sex marriage. During oral arguments, Inazu noted, a representative of the Obama administration admitted "the tax-exempt status of Christian colleges and universities who hold traditional views of marriage was 'going to be an issue.' "
Everyone knows "Democrats are not likely to lose the votes of black Christians and Latino Catholics and Muslims, since the Trump administration is making no real efforts to reach out to them," said Inazu, in a telephone interview. "What is more important is what other Democrats say when responding to O'Rourke."
Appearing on CNN, Mayor Pete Buttigieg of South Bend, Ind., warned that O'Rourke's stance would mean "going to war with not only churches but also mosques and organizations that don't have the same view of religious principles as I do." The openly gay Episcopalian added: "If we want to talk about anti-discrimination law for a school or an organization, absolutely they should not be able to discriminate."
Frontrunner Elizabeth Warren's press office also rejected O'Rourke's remarks, in statements to several news organizations.
So far, responses from other Democrats "will not be of much comfort to the many Americans who are concerned about religious liberty issues at this time," said Inazu. "O'Rourke may have offered a far-left stance that others will reject, but other Democrats are offering a familiar left-of-center stance."
After all, in its recent resolution praising "religiously unaffiliated Americans," the Democratic National Committee rejected threats from religious conservatives based on "misplaced claims of 'religious liberty.' " That text also said "the religiously unaffiliated demographic represents the largest religious group within the Democratic Party, growing from 19% in 2007 to one in three today."
The primaries are just ahead and everyone knows candidates say wild things while appealing to niche voters, noted David French, a Harvard Law School-trained religious liberty specialist. He is senior editor at TheDispatch.com, a new website appealing to #NeverTrump conservatives.
"Right now, Democrats have to focus on all those white, secular, online progressives … who are extremely hostile to small-o orthodox religion," he said, reached by telephone. But party leaders also know they "have in their coalition the least religious and the most religious cohorts in American life. …
"There is that coalition of woke Democrats, but there are also millions of African-American churchgoers. … That's an issue Democrats will have to deal with sooner or later."