Religious Liberty: Shield or Sword?

Religious Liberty: Shield or Sword?

Religious liberty is a treasured American value.
Unfortunately, laws originally designed to shield individuals’ religious freedom have been turned into swords that, in the name of religion, harm other people and undermine measures to promote the common good.

Religious liberty is a fundamental American value and a promise that is enshrined in the U.S. Constitution. Protections for religious liberty have encouraged the development of peaceful pluralism and a vibrantly diverse religious landscape, including a fast-growing group of Americans who claim no religious affiliation. Today, however, “religious liberty” has also become an ideological rallying cry for a collection of culture warriors – and the linchpin of their legal and political strategies.

It hasn’t always been this way. Two decades ago, an extraordinarily broad coalition came together to strengthen legal protections for religious liberty by limiting the government’s authority to substantially burden an individual’s ability to exercise his or her faith. That law was a response to a Supreme Court ruling that threatened to undermine protections for religious minorities, and it reflected a strong, interfaith, bipartisan consensus. Today, however, that consensus has been shattered because social conservatives are trying to turn laws meant to shield individuals’ religious exercise into swords that individuals and corporations can use against anti-discrimination laws and other measures opposed by conservative religious groups. 

With Religious Right groups crying “religious persecution” in response to the advance of marriage equality, and the Supreme Court’s conservative majority granting for-profit corporations the right to claim religious exemptions to laws that offend the owners’ religious beliefs, even when that comes at the expense of their employees’ interests, it is a good time to affirm some basic truths:

  • Religious freedom and equality under the law are both core constitutional principles;
  • Religious liberty, while fundamental, is not absolute, in the same way free speech and other constitutionally protected values are not absolute;
  • The government has a compelling interest in promoting public health and preventing discrimination;
  • Judges and other public officials regularly have to make difficult calls when constitutional and civil rights principles come into tension with each other;
  • Having your positions criticized in public discourse is not the same as being subject to persecution; neither is being on a losing end of a legal or policy dispute.

The Persecution Myth: Political Posturing with a Purpose

For decades, Religious Right leaders have falsely portrayed liberals as anti-faith and anti-freedom.  This is a cynical political strategy: it is easier to convince people to support discrimination against their gay neighbors if you have first convinced them that gay people are enemies of faith and family. Fortunately, those arguments have lost much of their power as people experience the real lives of LGBT family and friends. But that doesn’t mean Religious Right leaders have abandoned their religious persecution claims. In fact they are doubling down.

In recent years, in response to the advance of women’s reproductive health care rights and LGBT equality, conservative evangelicals and conservative Catholics have put religious liberty claims at the center of their political, legal, and public relations strategies. “Religious liberty” has been the focus of resistance to the requirement under the Affordable Care Act that employer-provided insurance include coverage for contraception. And it has become a primary argument against marriage equality as other arguments against basic equality for LGBT people have lost their effectiveness.

In this political context, Religious Right leaders leap at any chance to portray progressives in general, and supporters of LGBT equality in particular, as enemies of religious liberty. This strategy explains why the Alliance Defense Fund manufactured a controversy in 2014 by claiming that the owners of a commercial wedding chapel in Idaho, who had previously conducted Christian, other religious, and non-religious ceremonies and weddings, were about to be thrown in jail for refusing to marry gay couples. The supposed threat to religious freedom evaporated under closer scrutiny – the owners had already reincorporated as a religious corporation that was not even subject to the law they were complaining about – but it succeeded in generating a wave of alarmist stories in right-wing media.

In early 2015, Religious Right groups rallied around Kelvin Cochran, the former fire chief of Atlanta, who was fired by Mayor Kasim Reed after he distributed to some of his employees copies of a book he had written in which he called homosexuality a perversion and said homosexual acts are “vile, vulgar and inappropriate.” When Religious Right leaders began portraying Cochran as the victim of religious persecution, Mayor Reed affirmed what was really at stake: “His religious (beliefs) are not the basis of the problem. His judgment is the basis of the problem.” The New York Times editorial board noted that Georgia lawmakers are among those pushing for a “religious freedom” bill that “would do little more than provide legal cover for anti-gay discrimination.”

The First Amendment already protects religious freedom. Nobody can tell Mr. Cochran what he can or cannot believe. If he wants to work as a public official, however, he may not foist his religious views on other city employees who have the right to a boss who does not speak of them as second-class citizens.

Religious Right leaders have argued recently that American Christians who are resisting LGBT equality are in the same position as German Christians who resisted the Nazis. That is a ridiculous and shameful assertion designed to inflame rather than inform the debate. The same is true for much of the Religious Right’s rhetoric. Movement leaders like the Family Research Council’s Tony Perkins have made wild accusations of hostility to religious freedom against the Obama administration. Perkins has claimed in a fundraising letter, for example, “The government’s top priority is to become the arbiter of values for America – and break the back of those who stand by traditional religious beliefs.”

Reality: A Constitutional Balancing Act

The First Amendment’s religious liberty clauses – the Establishment Clause and the Free Exercise Clause – work together to protect Americans’ religious freedom. As noted in People For the American Way Foundation’s Twelve Rules for Mixing Religion and Politics, these two principles can come into tension when they are applied to real-world situations, and the often challenging line-drawing has kept courts and legislatures busy for decades.  In addition, religious liberty can come into friction with other constitutional principles, such as equal protection of the law, requiring efforts to reconcile and balance competing interests.  People of good will can and do sometimes disagree about just where those lines should be drawn.

It is universally acknowledged (except in right-wing scare-mail) that churches and clergy are protected by the First Amendment from being required to give their religious blessing to same-sex couples. State marriage equality laws generally include language affirming that right. In addition, some state marriage equality laws permit religious organizations to refuse to facilitate same-sex weddings or in some cases recognize same-sex marriages. How much leeway, if any, religious organizations should be given in complying with laws on discrimination and access to reproductive health care is a question currently facing courts and legislatures. But conservative activists are pushing something far broader: the “right,” in the name of religious liberty, of for-profit businesses to exempt themselves from laws, including civil rights laws, based on the religious beliefs of their owners.

Context: The Religious Freedom Restoration Act

In 1993, a politically and religiously diverse coalition of organizations pushed for passage of the federal Religious Freedom Restoration Act (RFRA).  The goal of the coalition was to reverse the impact of a Supreme Court decision that made it easier for government to infringe on individuals’ religious liberty. The case, Employment Division v Smith, involved Native Americans who were denied unemployment benefits under state law because they had been fired for using the illegal drug peyote as part of traditional religious ceremonies. The Court majority ruled that an individual whose exercise of religion was violated by a generally applicable government law or rule had no legal recourse under the First Amendment unless the law in question had specifically targeted the exercise of religion. This ruling, as Justice O’Connor pointed out, contradicted thirty years of Supreme Court precedent. With broad agreement that the Supreme Court ruling threatened the free exercise rights of religious minorities, RFRA passed with now-unimaginable bipartisan support: 97-3 in the Senate and unanimously by voice vote in the House.

RFRA was intended to establish a statutory civil right to religious liberty to replace the constitutional protection that had been offered by the Free Exercise Clause before the Court’s ruling in Smith.  RFRA requires that if a law or rule places a substantial burden on a person’s exercise of religion, the government must demonstrate that the law serves a compelling government interest in the least restrictive way. The Court later ruled that Congress could only apply RFRA to the federal government and the District of Columbia, not to the states.  Some states passed their own versions of RFRA, but efforts to re-mobilize the broad coalition failed as civil rights advocates began to worry, with good reason, that state-level RFRAs could be misused to undermine anti-discrimination laws passed by states and localities.

The coalition did come together for a more limited purpose to support the Religious Land Use and Institutionalized Persons Act (RLUIPA), which essentially provides the same protection as RFRA with respect to state and local prison rules and zoning decisions that sometimes substantially burden religious liberty interests of prisoners, churches, mosques, and others. Today, however, the RFRA coalition is in tatters as conservatives seek to use religious liberty claims not as a shield to protect free exercise of religion from government control, but as a sword to hack away at legal protections for others’ rights and interests.

The Hobby Lobby Case

On June 30, 2014, the U.S. Supreme Court issued a 5-4 decision in Burwell v. Hobby Lobby that could dramatically reshape the legal and political framework for religious liberty in America. In Hobby Lobby, the court misinterpreted the Religious Freedom Restoration Act, extending the right of religious conscience to for-profit corporations and radically altering the test that is used to balance claims that the law substantially burdens a person’s exercise of religion against competing claims and interests.  In the months since the decision, it has become clear just how far-reaching and damaging its consequences could be.

The Hobby Lobby decision concerned two lower court rulings involving for-profit corporations arguing that the mandate under the Affordable Care Act that insurance coverage include contraception violates the religious freedom of the corporations and their owners.  In one case, Hobby Lobby v. Sebelius, the 10th Circuit ruled in favor of the company; in the other, Conestoga Wood Specialties Corp. v. Sebelius, the Third Circuit sided with the federal government against the corporation and its human owners. By a 5-4 vote, with Justice Kennedy siding with Chief Justice Roberts and Justices Alito, Scalia, and Thomas, the Court ruled in favor of the corporations. 

Misinterpreting the Religious Freedom Restoration Act

The premise of Justice Alito’s opinion in Hobby Lobby was a major misinterpretation of RFRA, whose purpose was, as mentioned above, to restore the state of the law that existed before the Supreme Court’s Smith ruling.  As Justice Ginsburg wrote in dissent, the majority construed RFRA “as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence.”

This fundamental misinterpretation was crucial to the majority’s holding that for-profit corporations could invoke RFRA. As Justice Ginsburg explained, no previous Court decision under either RFRA or the Free Exercise clause had ever “recognized a for-profit corporation’s qualification for a religious exemption.” Although the majority tried to minimize its holding by suggesting that only family or other closely-held corporations would be able to invoke RFRA in practice, most American employees work for closely-held corporations. Besides, as Justice Ginsburg explained, the majority’s rationale is equally applicable to publicly traded corporations.

There is another major problem with the majority opinion, one that upends the balancing of interests intended by RFRA’s authors. The 5-4 majority essentially dismantled the requirement under RFRA that a person claiming an exemption must demonstrate that their “exercise of religion” would be substantially burdened.  In several pre-Smith cases, the Court had ruled that there was no “substantial burden” created by, for example, the government’s use of Social Security numbers to administer benefit programs or the requirement that employers pay Social Security taxes, despite the sincere offense that these requirements caused to some religious beliefs. Indeed, as a unanimous Supreme Court concluded in rejecting an Amish farmer’s claim that paying social security taxes violated his religious conscience, when “followers of a particular sect enter into commercial activity as a matter of choice,” the “limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity.”

Without proving that the government requirement actually interferes with what a religious adherent can actually believe or do, Justice Ginsburg explained, such religious “beliefs, however deeply held, do not suffice” to demonstrate a “substantial burden” under pre-Smith case law or under RFRA as properly interpreted.  But Alito’s majority opinion created a dramatically new standard, allowing business owners to seek exemption for a law that merely offends their beliefs.  This could open a huge avenue for anti-gay discrimination by business owners who claim religion-based objections to homosexuality, as well as for other claims to be exempt from anti-discrimination and other laws for religious reasons.

Having determined that the corporations in Hobby Lobby met the “substantial burden” requirement, the 5-4 majority went on to rule that, even assuming that guaranteeing cost-free access to contraceptives is a compelling government interest, the government had not shown that the contraceptive mandate was the least restrictive means of furthering that interest. Alternatively, the majority suggested, the government could itself assume the cost of providing the contraceptives or it could extend to for-profit corporations the accommodation that the government already provides to religious nonprofit corporations, in which an insurer would provide the coverage without imposing any costs on the objecting organization.

Hobby Lobby’s Aftermath

Just three days after the Hobby Lobby ruling, the Court granted an emergency injunction to Wheaton College, a religious non-profit college that has filed suit claiming that the existing accommodation for non-profits violates its rights under RFRA. Under the accommodation, the college only has to notify the government of its objections to providing coverage, and the government will notify the insurer that it must provide the coverage at no cost to the College.  That is the very accommodation that the Court’s conservatives pointed to in Hobby Lobby as evidence that there were less restrictive ways to provide contraception coverage to Hobby Lobby’s employees. To have the Court, in the same week, grant an extraordinary injunction based on Wheaton College’s claims that the same accommodation was a substantial burden in its exercise of religion, was astonishing. “Those who are bound by our decisions usually believe they can take us at our word,” wrote Justice Sonya Sotomayor. “Not so today.” Sotomayor was joined by Justices Ginsburg and Kagan in her dissent.

In both the Wheaton College and Hobby Lobby decisions, Justice Alito and the conservative Court majority went out of their way to claim that the Court’s rulings were narrow.  Justice Ginsburg, on the other hand, called Hobby Lobby a ruling of “startling breadth,” and many critics agree.

It is not clear how far the Court will extend the logic of Hobby Lobby. If corporations can exempt themselves from generally applicable laws based on the religious beliefs of their owners, and do so at the expense of others, what will happen when a conservative evangelical business owner refuses to abide by labor laws because he believes the Bible is opposed to unions, or to the minimum wage, or for that matter to certain kinds of taxes? Those are all positions argued by prominent Religious Right figures such as David Barton.

Using ‘Religious Freedom’ to Undermine Equality

One particular concern raised by Hobby Lobby involves the potential use of RFRA to seek exemptions from current or future federal measures to ban anti-LGBT discrimination. Indeed, Religious Right legal groups are actively asserting such claims against state-level anti-discrimination laws and are seeking to have such exemptions enshrined in federal legislation.

A few weeks after Hobby Lobby, President Obama issued an executive order that extended existing executive orders against racial and other discrimination by federal government contractors to also prohibit discrimination against LGBT people. A number of religious leaders called on the President to exempt religious organizations from the new order, but many other religious and civil rights organizations argued against such exemptions. The new order applied an existing rule that allows religiously affiliated contractors to favor individuals of their own particular religion when making employment decisions, but does not allow them to discriminate on the basis of race, sex, etc., and now also sexual orientation or gender identity.

But after Hobby Lobby, a for-profit or non-profit group contracting with the government could claim that the order’s application to them violates RFRA – and this would not be limited to sexual orientation and gender identity but could also include other categories covered by the executive order. Similarly, the District of Columbia’s Human Rights Act bans anti-LGBT discrimination, and since RFRA applies to DC as a federal enclave, a RFRA claim for an exemption could well be brought in that context as well. Although Justice Alito’s opinion appeared to specifically reject the application of RFRA to laws banning racial discrimination, he pointedly did not mention gender, LGBT, or other grounds under which discrimination is banned by various federal laws and regulations. 

State RFRA Legislation

A number of states have recently considered legislation to grant a religion-based freedom to discriminate against LGBT people, laws which could also have other far-reaching consequences. Many of these laws were written more broadly than the federal RFRA, with looser standards such as eliminating the crucial word “substantial” modifying religious burden, although after Hobby Lobby, whether or not “substantial” is contained in such a law may not make much difference.

Authors of these new state RFRA bills generally want to create the broadest exemptions possible, which could lead to widespread harm, saddle states with litigation, and weaken the ability of anti-discrimination laws to achieve their purpose. The Religious Right’s overreach has created some opportunities for effective coalition-building in opposition. In 2012, for example, a coalition of civil rights, religious, law enforcement, and child welfare groups successfully urged voters in North Dakota to defeat a ballot measure that would have put overly broad RFRA language into the state constitution. Coalition members argued that the provisions could undermine child protection and law enforcement and could cause expensive chaos in the state’s courts.

In 2014, intensive organizing and education helped stall bills in a number of states, including Kansas, Oklahoma, Tennessee, and Georgia.  Arizona Gov. Jan Brewer vetoed a bill after national attention focused on the state. Among those who had urged her to veto the bill were Arizona business leaders, GOP Sens. John McCain and Jeff Flake, and at least three Republican legislators who had originally voted for the bill. But in April of that year, Mississippi Gov. Phil Bryant signed the Mississippi Religious Freedom Restoration Act. The bill, originally modeled on the extremely expansive Arizona legislation, was modified in the wake of the Arizona controversy. Mississippi’s new law mirrors the federal legislation in some ways, but activists note that Mississippi law defines “person” to include businesses, so the new state law will apply to corporations as well as private citizens. In 2013, Bryant signed another “religious liberty” bill – one that could give religious cover for anti-gay bullying in public schools.

At the end of 2014, Michigan Republicans pushed “religious liberty” legislation through the state House, but it did not pass the Senate. The bill was reintroduced in Michigan in early 2015; similar RFRA bills and marriage-focused variations are expected to move in a number of states in 2015.

Small Business Owners and the Right’s Martyr-Making Machine

While many states and localities have passed laws against discrimination in public accommodations on the basis of sexual orientation, and in some cases gender identity, most have not. Arizona, for example, provides no legal protection against discrimination based on sexual orientation, which led many to argue that its proposed RFRA legislation was “unnecessary.”

Many of the cases that Religious Right groups cite as evidence that marriage equality undermines religious liberty concern small business owners – bakers, florists, and photographers – who have long been covered by state anti-discrimination laws regarding race, sex, and religion. But in states where those protections have been expanded to include sexual orientation, some businesses now run afoul of the law by refusing on religious grounds to provide services to gay groups or those related to same-sex couples’ commitment ceremonies or weddings.

Small business owners who want to run a business that reflects their values can be sympathetic figures. But what Religious Right groups defending owners who refuse to do business with same-sex couples are seeking to establish is a legal framework in which a business covered by an anti-discrimination law could ignore it on the basis of the owner’s religious beliefs on sex and marriage. Would such a principle also apply to religious beliefs on racial or gender equality?

Fifty years ago, Americans decided that a private business owner who serves the public can be required to abide by laws prohibiting discrimination on the basis of race, color, religion, sex, or national origin. Since then, many states and municipalities have added prohibitions on discrimination based on other characteristics like disability, sexual orientation, and gender identity. It is those laws that some religious conservatives are objecting to, arguing that they should be free to refuse to provide services to same-sex couples even when states have decided as a matter of public policy to ban anti-gay discrimination.

The tension between the rights of a business owner and the authority of a state to ban discrimination as a matter of public policy finds eloquent expression in New Mexico Supreme Court Justice Richard C. Bosson’s concurrence in a case decided in 2013. The state Court unanimously upheld a finding by the state’s Human Rights Commission that a couple who owned a wedding photography business that refused to provide services to a same-sex couple’s commitment ceremony had violated anti-discrimination law.

“On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice,” Bosson wrote. “At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less.”

Bosson also made it clear that upholding the state’s anti-discrimination law was not a rejection of the business owners’ religious freedom:

The Huguenins are free to think, to say, to believe, as they wish, they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life…In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs , so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.

Bosson’s opinion recognizes that there are competing interests at play while upholding the compelling public policy interest in prohibiting discrimination. But Religious Right leaders see the ruling as nothing short of tyranny. A lawyer for the Alliance Defending Freedom called the decision “a blow to our client and every American’s right to live free.” Cases in Colorado and Oregon involving bakery owners that declined to make a wedding cake for a same-sex couple and faced punishment for violating anti-discrimination laws have generated similar rhetoric.  Lawyers for the New Mexico photography business unsuccessfully asked the U.S. Supreme Court to review the case, arguing that requiring the photographer to participate in a same-sex wedding is a violation of First Amendment Free Speech rights.

A proposed federal law introduced in 2013 in both houses of Congress, the Marriage and Religious Freedom Act, would forbid the federal government from taking “adverse action” against any person who “acts in accordance with a religious belief that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.” Human Rights Campaign has warned that the law would permit federal workers, contractors, and grantees to refuse to serve married same-sex couples.  A legally married gay couple or unmarried heterosexual couple would have no recourse, for example, if they were barred from the hospital of a dying spouse or partner. We expect that some version of the legislation will be re-introduced in 2015.

In 2014, in the weeks after marriage equality reached North Carolina, several magistrates quit their jobs rather than register the civil marriages of same-sex couples. Religious Right legal group Liberty Counsel urged others with religious objections not to quit their jobs, but to fight for their “right” not to register couples whose marriages violated their own personal religious beliefs. In fact, legislation that would provide a “religious exemption” for such clerks has been introduced in a number of states.

Broad Principles

What happens when core constitutional principles like religious liberty and legal equality come into tension?  What should happen is an honest recognition that these tensions are inevitable and that reasonable people can disagree about where lines are drawn; a careful weighing of the principles and interests at stake; and a good-faith effort to find solutions that to the extent possible protect individual liberty and advance the common good. Religious liberty claims should not automatically trump others’ rights and interests, particularly when there is no substantial burden on an individual’s right to exercise their religion.

What actually happens is often quite different. Many conservative religious leaders insist that there is no common ground. Often implying that their position is the sole “religious” or “Christian” one, they portray religious freedom and marriage equality as inherently incompatible and declare that advocates of LGBT equality are by definition enemies of religious liberty and people of faith.  They portray the contraception mandate, even after the Obama administration’s efforts to accommodate objections from religious organizations, as tyranny, evidence of a liberal-led war on religious liberty itself. In the Manhattan Declaration, conservative Catholic and evangelical leaders vowed civil disobedience and postured as if they faced martyrdom in America for their anti-gay and anti-choice advocacy.  

This rhetorical overkill does a disservice to public understanding and debate – and to the truth.  An editorial from America, a Catholic magazine published by the Jesuits, criticized the campaign by the U.S. bishops against the revised contraception mandate, saying, “By stretching the religious liberty strategy to cover the fine points of health care coverage, the campaign devalues the coinage of religious liberty.….It does a disservice to the victims of religious persecution everywhere to inflate policy differences into a struggle over religious freedom.”

Americans Support Equality and Religious Liberty

Americans treasure the First Amendment and the way its religious liberty clauses work to shield every person’s religious freedom. And Americans support the constitutional principle of equality under the law. The federal Religious Freedom Restoration Act was designed to protect individuals’ exercise of religion. It was not meant to be a weapon, a sword wielded by culture warriors against policies and people that offend them.


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