Secular Americans and many liberal people of faith have been horrified by the Right’s most recent ploy: “religious freedom” claims that would give conservative business owners license to discriminate. Until Arizona made the national spotlight, the need for lunch counter sit-ins had seemed like a thing of the past. But in reality, advocates for religious privilege have been circling toward this point for some time.
As a legal and political tactic, Tea Party politicians and conservative church leaders have high hopes for their “religious freedom” push. What they want broadly is a set of cultural and legal agreements that elevate religious beliefs above human rights laws and civic obligations. They hope that securing sacrosanct religious rights for individuals and institutions will let them roll back rights for queers and women. They further hope that playing the religious freedom card will guarantee them access to government contracts and let them proselytize on the public dime.
Here’s the thing: for decades now, this strategy has been working.
To understand what’s going on requires a detour through American history. From the days of the pilgrims onward, the American colonies wrestled with tensions between religious freedom and the responsibilities of civil society. Finding the right balance has never been easy.
America’s founding fathers were deeply aware of the human temptation to impose our beliefs on others. Puritans fled to America because the Anglican Church said, essentially, our way or the highway. But then the Puritans turned around and did the same thing to religious minorities.Puritan persecution of Quakers was familiar colonial history when the Constitution was written. Thomas Paine said, “Persecution is not an original feature in any religion; but it is always the strongly marked feature of all religions established by law.” After emigrating to get away from this sort of persecution, many colonists sought to live according to the dictates of their own conscience.
And yet, America’s founding fathers were aware that the young nation could not function without agreements that to some extent acted as limits on individual freedom, including the free exercise of religion. Religious freedom questions are complicated in the way tolerance is complicated: How tolerant should we be of intolerance? What if one person’s religion dictates that he should impose his beliefs on others who may have conflicting spiritual priorities? What if religious claims or entitlements undermine public safety, public health, or national security? Religious freedom had to be balanced against other parts of “life, liberty, and the pursuit of happiness.” It also has to be balanced against the demands of a coherent civil society.
During the past two hundred years of American history, this balancing act has become more and more complex. Americans are more multicultural than ever, including religious diversity. The concept of universal human rights has emerged in direct contradiction of traditional Christian teachings that give women, children, and non-believers second-class status. The question of who is fully a person with equal right to life, liberty and the pursuit of happiness, has expanded from white male citizen landowners to include the indentured poor, slaves, Indians, women, children, foreigners, and gays.
Since religious individuals and groups have long been excused from some regulations and public duties, believers sometimes seek religious exemptions from the evolving demands of civil society, even when these demands are rooted in universal spiritual values like compassion and justice. Dogma may dictate a set of social priorities or it may provide a righteous excuse, but either way, religious doctrines and conscience claims often find their way into the debate about social change.
For example, in the lead-up to the Civil War, as pressure mounted to end the slave trade, American Christians found themselves deeply divided on the issue. Some argued for emancipation, others for slavery. The arguments against slavery seem obvious to us now, but more surprising are the sincere Christian arguments in favor of slavery. Here are a few, drawn from a longer list at Christianity Today:
Abraham, the “father of faith,” and all the patriarchs held slaves without God’s disapproval (Gen. 21:9–10).
The Ten Commandments mention slavery twice, showing God’s implicit acceptance of it (Ex. 20:10, 17).
Slavery was widespread throughout the Roman world, and yet Jesus never spoke against it.
The apostle Paul specifically commanded slaves to obey their masters (Eph. 6:5–8).
Paul returned a runaway slave, Philemon, to his master (Philem. 12).
Just as women are called to play a subordinate role (Eph. 5:22; 1 Tim. 2:11–15), so slaves are stationed by God in their place.
Those who support abolition are, in James H. Thornwell’s words, “atheists, socialists, communists [and] red republicans.”
It wasn’t just that slave holding was morally permissible. Many saw it as a pro-active Christian virtue. Slavery rescued people from cultures in which they practiced devil worship and witchcraft. It brought them to a place where they were taught the gospel and the trappings of civilization. Such arguments may be wildly offensive to us now, but in the end, the secular authority of the American government had to decide whether universal human rights or these deeply held religious beliefs would take precedence.
Jump ahead a century to the 1970s. Christians once again are torn, this time by questions about women and pregnancy. Some clergy favor thoughtful, responsible childbearing empowered by contraception and safe abortion. Others emphasize humility and compassion, saying that a woman herself must decide when to bring a child into the world. Still others believe sincerely that if God wants women to have fewer babies he will make that decision himself. In this view contraception is an act of spiritual defiance, and abortion ejects a human soul.
In 1973, shortly after Roe v. Wade, a piece of legislation called the Church amendment gave medical institutions the right to opt out of providing abortions and sterilizations, while still competing on even footing for public health funds. Since the 1970s, states and the federal government have enacted a series of laws that let medical practitioners refuse to participate in procedures they find morally offensive. With the rise of the Religious Right and the anti-abortion movement, religious claims have blossomed.
Two landmark pieces of federal legislation greatly expanded religious exemption and entitlement claims. The 1993 Religious Freedom Restoration Act restricted government entities from limiting religious freedom without a compelling societal reason and required that any restrictions minimize intrusion. The 2000 Religious Land Use and Institutionalized Persons Act (RLUIPA) limited the right of government to constrain religious land use through zoning, historic preservation laws, and so forth. RFRA ultimately was declared unconstitutional because of the impact on state’s rights. Justice John Paul Stevens stated that it created a privileged status for religion over irreligion. Nevertheless, it has spawned an array of similar laws in the states.
Religious privileges typically fall into two categories:
1) Individual religious believers and groups want to be exempt from laws and responsibilities that otherwise apply to everyone. Here are some recent examples.
- A religious pharmacist refuses to fill offending prescriptions.
An evangelical florist refuses to fill an order for flowers for a gay wedding.
Catholic colleges claim employees shouldn’t be allowed to join unions.
A Methodist church fights for exemption from land use laws.
A Christian prison guard denies Plan B to a raped prisoner, claiming (mistakenly) that it is an abortifacient.
Private adoption agencies win the right to shun gay prospective parents.
Catholic medical staff deny care and information to a woman who is miscarrying.
2) Religious groups demand access to public contracts, services and facilities, even if they use those public assets to advance religious teachings or priorities. Some recent examples:
Christian groups lobby for voucher programs that divert public funds into parochial education.
Child Evangelism Fellowship sues and wins the right to hold religious recruiting activities called Good News Clubs on public grade school campuses.
Evangelical and Pentecostal “endorsing agencies” use military chaplaincies as paid public missionaries.
A multi-national organization with an evangelical mission, World Vision, simultaneouslyobtains aid contracts and exemption from employment antidiscrimination laws.
Catholic healthcare corporations impose Bishop rules against abortion and aid-in-dying in publically licensed and tax subsidized facilities under their administration.
Religious advocates in the U.S. Senate propose FEMA disaster funding to rebuild houses of worship, even though religious institutions do not pay into the insurance fund.
A Jewish yeshiva seeks millions in higher education grants to pay for male-only Talmudic studies.
The next couple of months may see conscience creep hit a whole new level, depending on the outcome of two Supreme Court cases that mix religious freedom with corporate personhood. The cases before the court, Conestoga and Hobby Lobby, were brought by for-profit corporations with religious owners who want to be exempt from obligations of the Affordable Care Act. They claim that any health insurance that lets a woman choose pregnancy prevention violates the religious freedom of the owners and the company itself, even if it costs them nothing.
On the other side of the equation, the health and economic consequences of contraception are so enormous that the United Nations has declared access to family planning a universal human right. In other words, the cases before the Supreme Court pit religious freedom against human rights in no uncertain terms.
Can a business use religious freedom claims to get out of laws and civic responsibilities that otherwise apply to everyone? Better yet, as analyst Tom Goldstein asked it, “Do companies, not just people and churches, have religious freedom?” The Constitutional Accountability Center andFree Speech for People have weighed in with amicus briefs against the fusion of corporate and religious privilege, but the outcome is far from clear.
A decision that sides with the business owners would echo the Citizens United decision, expanding corporate personhood. It would also bring new energy and opportunity to the Right’s religious freedom strategy.
In Arizona’s recent battle, equality prevailed largely because corporations got involved on the side of civil rights. In Washington D.C, the money will be on the other side of the equation. So will the religious makeup of the Court itself, which is majority Catholic and conservative. Even so, the justices may return to the arguments made by Justice Anthony Kennedy (supported by Antonin Scalia and Clarence Thomas), when the court overturned RFRA back in 1997:
Its sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. … Any law is subject to challenge at any time by any individual who claims a substantial burden on his or her free exercise of religion. Such a claim will often be difficult to contest. … All told, RFRA is a considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens.
In this view, if religious freedom is the trump card proponents hope it is, it becomes a threat not only to the health and welfare of America’s citizens but to our democracy itself. Let’s hope members of the Court will remember their own words of warning.