The Continuing Threat to Religious Liberty
Two years to the day after the Supreme Court redefined marriage in Obergefell, the Court announced that it would hear a case about the extent to which private parties may be forced to embrace this new vision of marriage. The case involves Jack Phillips, a Colorado baker who declined to bake a wedding cake for a same-sex-wedding reception.
There was nothing remarkable about Phillips’s decision. With every cake he designs, Jack believes he is serving Christ. He had previously turned down requests to create Halloween-themed cakes, lewd bachelor-party cakes, and a cake celebrating a divorce. Yet Jack was never reprimanded over those decisions. He found himself in hot water only with the same-sex-wedding cake.
The immediate question before the Supreme Court is whether it’s constitutional for Colorado to penalize Jack under its “sexual orientation and gender identity” (SOGI) antidiscrimination statute. But the case has implications for millions of believers from every walk of life and, beyond that, for the health of our culture and our constitutional system of ordered liberty.
While there has always been disagreement about what religious liberty requires in particular cases, the idea of religious liberty as a fundamental human right has more or less been a consensus in America. It became controversial only in recent years as the government tried to force religious conservatives to violate their beliefs on sex and marriage, and as liberal advocacy groups decided that civil liberties aren’t for conscientious objectors to the sexual revolution.
That’s why we saw the American Civil Liberties Union oppose Catholic nuns’ attempt to get out of the Obamacare HHS preventive-care mandate, in which the Department of Health and Human Services required employers to provide insurance covering sterilization and birth control — including forms of birth control that prevent embryos from implanting in the uterus, thereby causing abortion.
The HHS mandate garnered the most headlines, but it’s far from the only flashpoint. In several jurisdictions, Catholic Charities and other faith-based adoption agencies have been forced to abandon their invaluable work simply because they want to place needy children only in homes with married moms and dads. The government calls that discrimination based on sexual orientation.
Agree or disagree with Catholic Charities, its belief that mothers and fathers are not interchangeable, that moms and dads are not replaceable, has nothing to do with sexual orientation. And respecting conscience here wouldn’t make a single concrete difference to same-sex couples, who would remain free and able to adopt from public agencies and other providers.
Yet lawmakers aren’t just coercing agencies such as Catholic Charities; they’re punishing states for declining to coerce those agencies. When Texas passed a law protecting the freedom of such agencies, California barred state employees from traveling to Texas on “non-essential” official business.
Religious schools adhering to the historic vision of marriage are also at risk. They stand to lose accreditation and nonprofit tax status as well as eligibility for student loans, vouchers, and education savings accounts. The Left regularly equates “homophobia” with racism, knowing full well that the latter can serve as grounds for ending tax-exempt status, as happened to Bob Jones University in the 1970s as a result of racist policies (lifted in 2000) regarding dating and marriage.
During Obergefell oral arguments, Justice Samuel Alito asked the solicitor general whether the state should yank tax exemptions for schools that uphold marriage as the union of man and woman. The solicitor general replied: “It’s certainly going to be an issue.” Right on cue, the Sunday after the Supreme Court’s ruling in Obergefell, the New York Times’ religion columnist wrote a piece for Time magazine titled “Now’s the Time to End Tax Exemptions for Religious Institutions.”
These vulnerabilities extend to Orthodox Jews, Roman Catholics, Evangelical Christians, confessional Lutherans, Latter-day Saints, Muslims, and anyone else who believes that we are created male and female, and that male and female are created for each other. Charities, schools, and professionals will find themselves on the wrong side of regulations: bans on what government deems “discrimination” in public accommodations and employment; mandates in health care and education; revocation of nonprofit status, accreditation, licensing, and funding. Rolling Stone just profiled the LGBT activist Tim Gill, who has pledged his $500 million fortune to passing SOGI laws that will, in his words, “punish the wicked.”
And it won’t just be government that does the punishing. As the law insists that social conservatives are like racists, big businesses and other institutions will bring their own pressure to bear on anyone who dissents. Professional associations, through licensing and accreditation procedures, will enforce the new orthodoxy. The American Bar Association has promulgated new model rules of professional conduct that make it unethical for lawyers to “discriminate” on the “basis of sexual orientation, gender identity, marital status or socioeconomic status,” including in “social activities,” which, as former attorney general Ed Meese has explained, would include “church membership and worship activities.” Legally and culturally, believers should prepare for challenges.
Just how far is the Left willing to go? Consider the ACLU’s “Health Care Denied” project. Launched in May 2016, the project solicits complaints against Catholic hospitals to form the bases of lawsuits. These lawsuits claim that, in declining to perform abortions, Catholic hospitals “use their religious identity to discriminate against, and harm, women.” But this is absurd. The mother’s sex has nothing to do with a Catholic hospital’s refusal to kill the unborn and its commitment to saving lives instead.
The ACLU has also sued Catholic hospitals for declining to perform sex-reassignment surgeries. A headline for a California NBC affiliate read: “ACLU sues Carmichael faith-based hospital for denying transgender man hysterectomy.” The hospital was being accused of discrimination based on gender identity.
But Catholic hospitals refuse to remove a healthy and harmless uterus from anyone, whether the person identifies as cisgender or transgender. This doesn’t reflect discrimination based on gender identity, but rather an honest vision of the role of medicine and the proper treatment of gender dysphoria. But the Left is working hard to label all refusals to march with its sexual revolution as exercises of a “license to discriminate.”
It wasn’t always so. The American Civil Liberties Union used to defend civil liberties. Back in 1993, when Bill Clinton signed the Religious Freedom Restoration Act into law, the ACLU was one of its biggest supporters. Nadine Strossen, president of the group’s national board of directors, testified before Congress in support of the law. It was needed, she argued, to “restore to religious liberty the same kind of protection that the Court has given and still does give to other fundamental freedoms.”
Strossen explained that “in order for government to infringe on a liberty, including religious liberty, it has to show some compelling interest, and it has to show that the measure is narrowly tailored so as to do as little damage as possible.” She embraced this legal standard, identifying it as “strict scrutiny” and saying it was “hardly a radical approach.” She even stated that RFRA was needed to protect “such familiar practices” as “permitting religiously sponsored hospitals to decline to provide abortion or contraception services” and ensuring “the inapplicability of highly intrusive educational rules to parochial schools.” She concluded that “these were decisions . . . that society had previously assumed that religious groups had the right to make for themselves and could not be compelled to change just because society thought otherwise.”
Let that sink in. In 1993, the ACLU endorsed RFRA, saying it would rightly restore for religious liberty the standard used to protect other freedoms — and specifically celebrated the very applications of RFRA that progressives now call abuses never imagined by its supporters. Today, the group sues Catholic hospitals over abortion and sex reassignment and supports a bill — the “Do No Harm Act” — that would amend RFRA so that it couldn’t be used to defend against progressive government mandates in employment and health care, amongst other areas, in response to the Hobby Lobby decision.
RFRA-style laws have been used to protect a variety of claimants: Apache Indians told they can’t wear the feathers of endangered eagles in their headdresses, Sikhs told they can’t carry a kirpan (a small ceremonial knife) if they work for the government, inner-city black churches zoned out of existence, Muslim prisoners forbidden to grow short beards, and Jewish inmates denied kosher meals. RFRAs became controversial only when the federal RFRA protected the Evangelical owners of Hobby Lobby and when people thought state RFRAs might protect bakers, florists, and photographers who object to same-sex marriage. Rejecting religious liberty as a fundamental natural right means that the freedoms of a variety of faith traditions on any number of issues may become casualties of progressives’ zeal to quash conservative dissent on sex.
Three historical developments have created our current predicament: a change in government, a change in sexual values, and a change in how religion is practiced and how it is viewed by our leaders. An adequate response to current and looming threats to religious liberty will need to address each of these three shifts.
What has changed regarding government? A presumption of liberty has been replaced with a presumption of regulation. Citizens used to think that liberty was primary and government had to justify its coercive regulation. Now people assume that government regulations are the neutral starting point and citizens must justify their liberty.
The progressive movement gave us the administrative state. Limited government and the rule of law were replaced by the nearly unlimited reach of technocrats in governmental agencies. As government assumed authority to regulate more areas of life, the likelihood of its infringing religious liberty increased.
If Thomas Jefferson and James Madison came back to America today and heard about the plight of the Little Sisters of the Poor, their first response would not be to cite the First Amendment; it would be to ask what the Department of Health and Human Services is and what authorizes it to issue a preventive-care mandate. This should be a lesson to religious believers — including many who supported the passage of Obamacare — in how policies that violate economic freedom and massively expand the role of government also can end up violating religious freedom. We must assist those in need without unduly infringing on liberty and while respecting their — and everyone else’s — consciences.
The best defense of religious liberty is a defense of liberty more broadly, a return to limited government and the rule of law. Nowhere is this more applicable than in the never-ending expansion of anti-discrimination statutes. What started out as well-justified efforts to combat racism, sexism, and anti-Semitism have morphed into laws protecting against the “dignitary harm” (i.e., harm to dignity) allegedly inflicted by anyone who disagrees with progressives about human sexuality.
Laws that exist to prevent discrimination on the basis of race, sex, and religion are now being expanded to ban discrimination on the basis of “sexual orientation and gender identity.” As a result, harmless actions and interactions, such as decisions not to perform sex-reassignment surgery or not to bake a cake for a same-sex wedding, are being declared unlawful forms of discrimination. While no federal SOGI law exists, half of the U.S. population lives in a jurisdiction with a local or state SOGI. And these SOGIs frequently employ overly broad definitions of “public accommodation” so that almost every business is considered a place of “public accommodation.” It is essential to limit the damage these laws cause and to defeat them when they are proposed.
The comparison with racism is instructive, but not in the way SOGIs’ advocates think. In the 1960s, widespread and systemic racism radically limited African Americans’ freedom to flourish. Social and market forces were not sufficient to remedy the problem. Legal remedies were essential. Do Americans who identify as LGBT face similar challenges today?
Racist businesses refused to serve black people or to serve them in the same spaces and on the same terms as whites. If a business refused to participate in an interracial marriage, it was because that business thought whites were superior to blacks and therefore shouldn’t marry them — not that such a union wouldn’t be a marriage in the first place. By contrast, bakeries don’t refuse to serve people who identify as LGBT because they so identify. Rather, a small number of bakeries can’t in good conscience celebrate same-sex weddings because they think marriage can’t be same-sex.
What justifies the government in telling Jack Phillips that he must create cakes for same-sex weddings? Government has redefined marriage, but that didn’t create an entitlement for some citizens to demand that other citizens help celebrate their same-sex marriages. Activists are using SOGI laws to weaponize the redefinition of marriage. And so we see three important considerations for anti-discrimination policy: the underlying need and justification for government regulation, the scope and reach of that regulation, and the actions and interactions that count as discriminatory.
What about the change in sexual values? How America views the human body, sexuality, marriage, and the family has also changed profoundly since the 1960s. What started as a liberationist movement — asking for the freedom to live and love, be it with contraception or abortion, same-sex relations or transgender identities — now demands that other people support, facilitate, and endorse such choices: that Hobby Lobby’s insurance cover them, that Catholic hospitals perform them, and that various professionals celebrate them.
While the ACLU has largely failed in forcing pro-lifers to perform or pay for abortions, they’ve had more success in coercing traditionalists on LGBT issues. This highlights the reality that, for many people on the left, pro-life views are wrong but understandable, while traditional views on sex, marriage, and gender identity are not merely wrong but bigoted and deplorable. That’s why Catholic hospitals have prevailed against the ACLU in lower courts but Jack Phillips has to plead his case to the Supreme Court.
Any effective long-term response, therefore, cannot merely be about religious liberty or limited government. Ultimately, our goal should be to convince our neighbors that what we believe about sex is true. In the meantime we need to convince them that what we believe is at least reasonable and poses no harm to others, and thus that there’s no reason for the government to penalize it.
You can be in favor of gay marriage and be in favor of Jack’s not being forced to celebrate gay weddings. But if you think support for marriage as the union of husband and wife is akin to racism, you’re less likely to support Jack’s freedom to dissent. Conservatives need to explain why we believe what we believe in terms that our neighbors can understand. We may never convince the ideologues and activists, but most Americans aren’t driven by ideology or activism, and their opinions on these issues aren’t that deep or well informed. These people are persuadable if we make the effort.
In addition to changes in government and sex, religious practice and our understanding of religious liberty have also changed. The mainline Protestant churches became the old-line and now are on the sideline, in the memorable slogan of Father Richard John Neuhaus. This evolution sparked the growth of Evangelicalism, which is now challenged by the influence of mere cultural Christianity. On the Catholic side, the American implementation of the Second Vatican Council splintered the Catholic community into politically liberal, doctrinally heterodox “Spirit of Vatican II” Catholics and politically conservative, doctrinally orthodox “John Paul II” Catholics — with ex-Catholics composing one of the largest religious groups in America. These changes helped fuel the rise of the “nones” — those with no religious affiliation. As Americans become less religious, they care less about religious liberty, for people are most vigilant to protect the rights that they themselves want to exercise.
At the same time, a form of secularism has challenged the role of religion in public life, arguing that religion is appropriate inside the four walls of a house of worship but not on Main Street or Wall Street. The result has been an ever more naked public square, another memorable Neuhaus locution, where religion is viewed as a merely private affair with no public relevance.
These changes help explain why some liberals are trying to drastically narrow the natural right to the free exercise of religion by redefining it as the freedom of worship. If they succeed, the robust religious freedom that made American civil society a light to the world will be reduced to Sunday-morning piety confined to a chapel. The Little Sisters of the Poor will be free to worship how they want in their chapel, but will be forced to comply with the HHS mandate.
To adequately defend religious liberty, then, we must defend religion and work to spread it. In other words, we must evangelize. This takes many forms. Parents and pastors need to form their children and congregants in the truth. Spreading the faith to others — and helping them see the reasonableness of our beliefs — is likewise essential.
So is helping both believers and nonbelievers appreciate the importance of religious liberty. James Madison explained that religious liberty is a natural right “because what is here a right towards men, is a duty towards the Creator.” Only if people can come to grasp the good of religion will they come to defend robust religious-liberty rights. Even people who aren’t personally religious can see that it is good for us to seek out and answer questions about ultimate origins, destiny, purpose, and meaning. They can see that it is good to live in accordance with religious truth as we each understand it. Religious liberty gives us the space to do precisely that.
And in doing so, it reminds the state that it is limited. As Sherif Girgis and I explain in our new point-counterpoint book with John Corvino, Debating Religious Liberty and Discrimination, religious liberty plays a crucial role in preserving civil society as something separate from government. It makes conceptual room for — and promotes in practice — private associations and self-determination. Respect for religious liberty sears into political culture an image of government as limited by higher laws: transcendent moral norms and timeless truths about humanity’s pre-political needs and duties.
Government has no natural general mandate to coerce us, with our rights coming merely from its gracious self-restraint. It’s the other way around: Civil society has moral claims on government. A government that can tell nuns that their health-care plan must cover contraception is a government that can do anything.
To meet the attacks on religious liberty, conservatives must avoid two pitfalls: opting out of politics and defending only “our” people.
Religious liberty has been defended almost exclusively by lawyers, pastors, academics, and other people at 501(c)(3) nonprofit organizations. As Maggie Gallagher has noted numerous times, social conservatives have largely ignored actual politics. We talk about politics and we litigate to keep the courts from deciding issues against us, but we rarely engage in the actual electoral and political process.
Only one side has flexed political muscle. As Mike Pence will tell you, big business will make it painful for an elected official to do the right thing on these issues. We need 501(c)(4)s, PACs and super PACs, 527s, and other organizations to engage in direct political action, supporting bills and politicians that are good for religious liberty and opposing those that do it harm. What the Susan B. Anthony List has done for the pro-life cause we need done for religious liberty.
As for the second pitfall, conservatives must avoid following the Left’s lead in treating religious liberty as a partisan or tribal issue. In abandoning the religious liberty of conservative believers, the Left has betrayed a fundamental human right. Some on the right seem inclined to commit their own version of this mistake by denying the religious-liberty rights of Muslims, such as when towns refuse to let Muslims build mosques. But the same legal standard must apply to all faiths because the same human right is at stake.
Provided they don’t harm the common good, violate human rights, or otherwise offend justice, Muslims should be free to be authentically Muslim, just as Jews should be free to be authentically Jewish and Christians should be free to be authentically Christian. All of America is better off when these freedoms are protected, as they allow room for all of us to live according to our consciences — and to appeal to other people’s consciences in seeking to persuade them of what we regard as the truth in matters of faith.
Religious liberty is not an embrace of relativism. As we disagree about religious truth, we need to agree to leave legal room for that disagreement to play out in worthy and healthy ways — among people who are free to persuade and convert. People are free to try to convince Jack that he should bake the cake, but the government shouldn’t be allowed to force him to do so.
Religious-liberty protections help preserve the conditions that make peaceful coexistence possible. They acknowledge both man’s dignity and the reality of pluralism and diversity even as we work to know and live the truth.
Republished from The Heritage Foundation.