Since 1992, each January 16 the president issues a proclamation commemorating the passage of the Virginia Statute for Religious Freedom in 1786. President Obama will presumably do it again this coming Saturday. This would not normally be of much notice to the general public, but these days the concept of "Religious Liberty" is a very hot topic on the right. It's even a major item on the GOP presidential primary agenda.
Unsurprisingly, Mike Huckabee has gone further than anyone in the race promising to direct his Attorney General to "prosecute as hate crimes groups or individuals who discriminated or attacked individuals, businesses, religious organizations and others for their religious beliefs about marriage."
Christian Right poster boy Ted Cruz issued this passionate cri de coeur just last week:
"What we are really seeing is an increasing hostility to religious liberty, and to Christians in particular. We're just steps away from the chisels at Arlington coming out to remove crosses and Stars of David from tombstones."
Jeb Bush gave the commencement speech at Liberty University and carried on for what seemed like hours on the subject. His message basically came down to this:
"From the standpoint of religious freedom, you might say it’s a choice between the Little Sisters and Big Brother – and I’m going with the Sisters."
And Marco Rubio, obviously unschooled in the proper obfuscatory rhetoric, eschews the flowery prose and just blurts out what they really believe. He says on his website:
"Religious liberty is not simply the right to believe anything you want."
Actually, that's exactly what it is.
As Frederick Clarkson explained in this piece, Thomas Jefferson considered his involvement in the drafting of that Virginia statute as important as his authorship of the Declaration of Independence. It was equally revolutionary: It removed the Anglican church as the official church of the state of Virginia and asserted that people were free to believe in any church, or no church, and it "shall in no wise diminish, enlarge, or affect their civil capacities." It is considered the basis for the U.S. Constitution's establishment clause, which was ratified four years after this was passed.
The Establishment Clause was a radical embrace of the Enlightenment; it was controversial then and it's controversial now. Jefferson set out to explain his thinking on the matter. He wrote very explicitly that his intention was that the law held “within the mantle of its protection, the Jew and the Gentile, the Christian and Mohametan, the Hindoo and Infidel of every denomination.” And it will come as a surprise to the Christian Right who have been bamboozled by charlatans into believing otherwise, but Jefferson made it clear that the majority voted against adding any references to Christianity.
Not that this has stopped right wing hucksters like pseudo-historian David Barton, who is the CEO of one of Ted Cruz's Super-PACs, and the looney Glenn Beck from rewriting this history out of whole cloth. It is one of the great cons in American life. Not only wasn't the U.S. founded as a Christian nation; the founders discussed the subject at great length over many years and made it clear that it was not. What they did say was that individuals would be free to believe, or not believe, anything they want. That secular Enlightenment value is what Religious Freedom Day celebrates.
But as is their wont, the right wing has cleverly decided to use a postmodern approach to reinterpret this constitutional right as a license to impose their own beliefs on others. Just as the Second Amendment is now used to inhibit the exercise of the First Amendment, radical right-wing legal strategists have devised a plan to use the First Amendment to impose their religious beliefs on their fellow Americans. They cleverly call it a crusade for "religious liberty" when it is, in fact, an attempt to deny individuals the right to live their lives free from religious coercion.
Frederick Clarkson is the author of a new comprehensive report on this movement, called "When Exemption is the Rule: The Religious Freedom Strategy of the Christian Right." Even those who follow this issue must be surprised at the scope of their efforts. In a nutshell, Clarkson reports that the right has created a number of new institutions and initiatives to advance the redefinition of the meaning of religious freedom. There are tens of millions of dollars from various right wing organizations flowing into these institutions to influence legal, political and cultural change. For instance:
The Becket Fund, which has litigated landmark Supreme Court cases like Hobby Lobby and Hosanna-Tabor, grew 86 percent in just four years, from FY2009 to FY2012. The national legal network Alliance Defending Freedom increased its annual revenues by $5 million during the same period (a 21% increase) while also expanding its effort to seek influential legal precedents in international courts.
In an important mainstreaming move, the conservative John Templeton Foundation funneled $1.6 million through the Becket Fund to establish a religious liberty clinic at Stanford University Law School. It opened in January 2013.
The Supreme Court's 2014 Hobby Lobby ruling was the first high-level, national recognition of this new definition of religious freedom, which is essentially the recognition of an employer's right to discriminate. (It allowed companies to claim a religious exemption from the Obamacare mandate that requires employers to offer contraception coverage in health insurance plans.) Essentially the court held that the religious beliefs of an employer supersedes the religious beliefs and personal conscience of individuals who work for them.
Clarkson explains how they are planning to expand this concept:
The Christian Right is seeking to undermine and evade civil rights law beyond the courts by “religifying” organizations. This means rewriting mission statements, contracts, and job descriptions to claim that the entire organization or jobs within it are essentially religious in nature and subject to the longstanding exemption of clergy from the Civil Rights Act. Under this logic, a religified business or nonprofit would have the right to discriminate against an LGBTQ client, or others with whom they may religiously disagree, by excluding people who do not conform to their doctrines. The groups promoting this tactic, such as Alliance Defending Freedom and Liberty Institute, have issued handbooks to help organizations protect against “dangerous antireligious attacks.”
Religification efforts are attempting to build on the 2012 U.S. Supreme Court ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (EEOC) that the religious duties of a teacher fired in a discriminatory way insulated the mainline church school from antidiscrimination laws under the longstanding clergy exemption. The ruling opened the door to expanding the definition of ministry, so that many more institutions – and their employees – can be exempted from the protections of the law.
None of this is exactly new. Back in the early 1980s, the Christian Right used the same arguments to try to preserve the right of religious schools to ban interracial dating and lost their cases before the Supreme Court. They lost those cases, but today, in an act of tremendous chutzpah, they have cynically appropriated the language of moral persuasion used successfully by the civil rights movement to advance essentially the same cause.
Clarkson warns in his report against playing into the Christian Right's plan by presenting the arguments as if there is some legitimate conflict between religious freedom and civil rights, and this sounds like good advice. The nation has done very well in the last half century by simply saying that discrimination is wrong, period. Nobody is telling religious employers that they must use birth control or marry a member of the same sex. That would be absurd. They are simply saying they cannot discriminate against those who do. It's really not complicated. But if these well-heeled, well-connected conservative legal and political institutions have their way we'll be spending the next few decades trying to sort it all out. And that's the point.