Redefining Religious Liberty

Perhaps most importantly, it has succeeded in reframing the debate around civil rights, inverting victim and oppressor. Polls show that the conservative religious liberty argument is effective when the Right sows confusion among the public—by suggesting, for example, that ministers will be forced to marry LGBTQ couples when states legalize same-sex marriage. As a result, the religious liberty argument has helped the Right win exemptions from same-sex marriage laws and limit women’s access to contraception coverage.

While this debate is the newest front in the “culture wars,” it is actually an old argument in a new context.  In previous decades, the Christian Right defended racial segregation, school prayer, public religious displays, and other religious practices that infringed on the liberties of others by claiming that restrictions on such public acts infringed upon their religious liberty. Then as now, the Religious Right turned anti-discrimination arguments on their heads: instead of Blacks being discriminated against by being banned from Christian universities, the universities were being discriminated against by not being allowed to ban them;  instead of public prayers oppressing religious minorities, Christians were being oppressed by not being able to offer them.

Using the “religious liberty” framework, the Christian Right now attacks access to contraception and abortion, same-sex marriage, and anti-discrimination laws—not on moral grounds (e.g., that contraception is morally wrong or that LGBTQ rights violate “family values”), but because they supposedly impinge on the religious freedoms of others (e.g., by forcing employers to violate their religion by providing  contraception coverage). All major Christian Right organizations now deploy threats to “religious liberty” as a primary (if not the primary) argument in a range of struggles. Their strategy aims to make themselves seem less bigoted and more sympathetic, as they fight to skirt and defy the law’s advances toward equality.

Deep Roots, Modern Branches

Since the founding of the United States, a tension has existed between two principles: on the one hand, government cannot favor or establish a particular religion; but on the other, it is committed to guaranteeing the free exercise of all religions. This tension leads to recurring dilemmas. When a student offers a graduation prayer, for example, is she exercising her individual right to religious practice, or impermissibly establishing it collectively? And when a government funds parochial schools, is it properly nondiscriminatory—or improperly subsidizing religion? Such conflicts have never been definitively resolved, because they are intrinsic to the American conception of civil rights, which always requires a balancing of competing interests.

Despite these deep roots, the notion that the U.S. Constitution protects religious liberty is really a creation of the last 80 years, and the result of the work of marginal religious groups, not mainstream ones.  Chief among these were the Jehovah’s Witnesses, who refused to salute the flag or recite the Pledge of Allegiance, a controversy that reached fever pitch in the 1930s and 1940s. After an initial loss, the sect prevailed in the landmark 1943 case of West Virginia State Board of Education v. Barnette,² in which the Supreme Court held that absent a compelling state interest, the state could not compel an individual to violate his or her religion.

The most important case for contemporary religious liberty claims, though, is Bob Jones University v. United States, decided in 1983.³ According to historian Randall Balmer, it was the formative event in the creation of the Christian Right and the politicization of American evangelicals.⁴ The case concerned the evangelical Bob Jones University, which had racist admission and dating policies. The IRS  revoked the school’s tax-exempt status, stating that a nondiscrimination policy was required for tax exemption. The Supreme Court agreed on the grounds that since the exemption was a privilege, it could only be obtained if the organization comported with law and public policy.⁵ Though the decision neither shut down Bob Jones University nor compelled it to change its policies, this perceived infringement on religious liberty fueled the contemporary Christian Right, and it was hotly debated in the press.

Notably, Bob Jones University was part of a last-ditch effort to maintain racially discriminatory institutions. The “religious liberty” in question, then as now, was the liberty to discriminate against others.

Bob Jones prefigures the inversion of the victim-oppressor dynamic that marks contemporary religious liberty rhetoric. The real victims were Black students at Bob Jones—not the university. Yet in the evangelical telling of this history, the university was the victim of anti-religious persecution. Likewise, today, the conservative religious liberty frame claims that the real victims are not gay students being bullied, women denied accessible healthcare, and nonreligious students coerced into participating in a religious ceremony. The true victims are the university, the bully, the woman’s employer, and the graduation speaker who is not able to recite a prayer.  Yet “religious liberty” activists claim that bullies are the real victims because they cannot “express their views about homosexuality.” They claim that businesses who say “No Gays Allowed” are being oppressed because they are forced to “facilitate” gay marriages. And they claim that the real targets of discrimination are not gay people—who can be fired from their jobs simply for being gay in 24 states—but employers who can’t fire them.

Progressives will immediately recognize this as a shocking inversion of how religious liberty is generally understood. Religious liberty is meant to be a shield against state action, not a sword against minorities. It was traditionally used to protect minority religions, not majority ones, which is why most liberals supported the Religious Freedom Restoration Act of 1993, passed to protect Native American peyote use from federal prosecution. Yet today, it is used to defend discrimination by Christians against women and LGBTQ people.

By now, conservative religious liberty arguments are standard fodder on Fox News and among the right-wing punditry. Phyllis Schlafly, for example, writes that “the policies of the Obama administration represent the greatest government-directed assault on religious freedom in American history.”⁶ Rush Limbaugh, too, has alleged that the president is assaulting religious liberty.⁷ But unlike other hard-right claims, “religious liberty” has also found its way into the mainstream. For example, it became an issue in the 2012 U.S. elections when, during the vice-presidential debate on October 11, Rep. Paul Ryan (R-WI) said:

Vice President Biden’s response was emphatic and accurate, but seemed less persuasive than Ryan’s victim narrative:

This response was true on the surface, due to Biden’s precise language, since no institution has to refer contraception or directly pay for it, or “be a vehicle to get contraception in any insurance policy they provide.” At issue is whether church-affiliated businesses (not churches) must provide the same health coverage (not violate their conscience) as required of all businesses. Nonetheless, the vice-presidential debate represented a high-water mark for the visibility of the right-wing religious liberty argument.

Why “Religious Liberty” Works

During the last fifteen years, a surprisingly small cadre of conservative Catholic thinkers—led by The Becket Fund and individuals affiliated with the U.S. Conference of Catholic Bishops—has successfully brought this new iteration of “religious liberty” to the most contested fronts in the culture war: reproductive rights and LGBTQ equality.  The conservative “religious liberty” movement’s methods include:

• conducting a PR campaign to convince Americans that religious liberty is under attack and deploying misleading exaggerations to scare voters, for instance, by falsely claiming that churches will be required to sacralize gay weddings and employers forced to pay for abortions;
• reframing questions of discrimination (e.g. in the Boy Scouts) as questions of the religious liberty of those who wish to discriminate;
• filing lawsuits to limit LGBT rights on religious liberty grounds and exploiting ambiguities in the law to conduct a nationwide litigation campaign;
• exploiting the structural ambiguity in civil rights law that emerges when fundamental rights clash, as that between religious expression and civil rights;
•  scaring the public by eliding the differences in legal standards between discrimination against LGBTQ people and discrimination against African Americans, and suggesting that protections for the latter will be extended to the former;
• influencing legislation to obtain exemptions from antidiscrimination laws, and enabling Christian organizations to discriminate (e.g. student clubs in the Virginia university system);
• limiting access to reproductive healthcare (first through a series of religious exemptions for abortion, and now by limiting insurance coverage for contraceptives);
• attempting to expand existing religious exemptions beyond religious organizations to include private businesses (such as Hobby Lobby, the current plaintiff in a prominent case);
• marshaling the support of influential academics such as Douglas Laycock, a distinguished professor at the University of Virginia Law School, who successfully argued a key “religious liberty” case before the U.S. Supreme Court for the Becket Fund, and longtime conservative Catholic campaigner Robert P. George of Princeton University. They and other scholars provide intellectual leadership (or cover) for the movement, both within the Christian Right and more broadly.

Why has this campaign been so successful?  There are several key reasons.

Fact and Fantasy

First, there is a confusing mixture of fact and fantasy in right-wing rhetoric regarding religious liberty. For example, the broadest, most common, and least accurate claim is that members of the clergy will be forced to solemnize same-sex marriages. “Once federal and state laws uphold gay marriage, gays will be entitled to sue anyone licensed by the state that refuses to perform a marriage,” writes Brad O’Leary in The Audacity of Deceit: Barack Obama’s War on American Values.⁹ This is universally untrue. All same-sex marriage laws specifically exempt clergy from being forced to sanctify any marriage of any kind.

One PRRI survey, which found that 52 percent of respondents overall supported same-sex marriage, asked individuals who initially opposed it if their opinion would be different provided they were certain that “the law guaranteed that no church or congregation would be required to perform marriages for gay and lesbian couples.” With that guarantee, overall support for same-sex marriage jumped by six points—to 58 percent.¹⁰

Not surprisingly, playing on the public’s fear about government intrusion into private religious practice is a key component of the conservative religious liberty campaign. Minnesotans United, for example, found that a large plurality of marriage opponents believed that, if same-sex marriage were legal, religious organizations would be forced to solemnize same-sex marriages. As noted, this is not the case.

The data suggest that conservative religious liberty advocates will succeed if they can blur the lines regarding what same-sex marriage legislation would actually do. If progressives state clearly and loudly that no church will ever be compelled to perform a same-sex marriage, on the other hand, many opponents will become supporters.

The War on Religion

Second, it is important to recognize that the Christian Right really does believe that its religious liberty is under attack. Since the 1970s, conservative evangelical Christians have adopted the earlier Catholic narrative that there is a determined secularist campaign to destroy religion and replace it with “humanism” or “secularism.”¹¹ In extreme forms, this battle is literally between God and Satan. Evangelical author Tim LaHaye, for example, demands that Christians “resist the devil and… put on the whole armor of God.”¹² Beverly LaHaye, not to be outdone by her husband, wrote in 1984 that secularists are “priests of religious humanism and are evangelizing our children for Satan.”¹³ These extreme formulations seem unlikely to appeal to more moderate Christians, and on the contrary are likely to turn them off.  Yet they have a strong appeal among evangelicals.

The theme of the “war on religion” also intersects with the blend of fact and fantasy just discussed. For instance, Catholic legal theorist Thomas Berg frets that “if sexual-orientation discrimination should be treated in all respects like racial discrimination—as many gay-rights advocates argue—then the precedent of withdrawing federal tax-exempt status from all racially discriminatory charities, upheld in Bob Jones University v. United States, would call for withdrawal from all schools and social service organizations that disfavor same-sex relationships.”¹⁴ Note the elisions here: from “many gay-rights advocates argue” to a position that no court has ever taken; from withdrawing tax-exempt status to overall “withdrawal”; from a racist policy to “disfavor.”  The ‘coming storm,’ of course, is highly unlikely to come in this way, but such subtleties tend to be lost.  

Martyr Narrative

Third, and more broadly, “religious liberty” rhetoric refers to earlier moments in Christian history, such as the early Christian martyrs in the Roman period. Reading “religious liberty” books, one gets a completely inverted picture of life in the “Bible Belt.” Rather than an oppressive religiosity exerting influence over all public life, the picture is one of a massive secular state squelching any Christian religious expression.

This points to the enormous gap in perception between progressives and conservatives on this subject. Most progressives see themselves as resisting conservative Christian dominance in public life, but most conservatives see themselves as resisting a secular, anti-Christian hegemony—a perception that taps directly into narratives of Christian martyrdom, including that of Jesus himself.

Predictably, “religious liberty” spokespeople have begun analogizing the “persecution” in the United States to that in Nazi Germany. Recently, for example, the pastoral outreach director for Minnesota for Marriage said that the way Hitler persecuted Jews was that he “removed their voices in the public square and removed their control of their own businesses. So, he stopped Jewish people from speaking out in public and he silenced them.”¹⁵ 

It is important to recognize, of course, that this martyr narrative is a fantasy. School-prayer cases are not about individuals praying; they are about groups (including non-consenting individuals) being led in prayer by another. Gay rights cases are not about individuals or religious communities expressing opinions or engaging (or not) in private acts; they are about individuals and communities creating hostile environments for others by expressing their views, refusing services, or in other ways directly communicating a message of second-class status to LGBT people. And the current contraception battle is not about whether a church may exercise its conscience, but whether it may do so at the expense of other parties’ rights. Yet in terms of Christian myth, the martyr narrative eclipses these inconvenient truths.

Frame, not Facts      

Fourth, the RL argument is really about framing, not facts. This makes it difficult to refute, since it is really a matter of interpretation. For example, on the question of whether an employer must provide contraception coverage in health insurance plans: Whose rights are at stake? In the RL frame, the employer’s religious liberty rights are threatened. In the civil rights frame, the employee’s reproductive rights are threatened. Same facts, but different frames lead to different potential “victims.” Likewise in LGBTQ cases. In one case, frequently cited by “religious liberty” activists, a New Mexico wedding photographer was fined $6,000 for refusing to photograph a same-sex couple. Whose rights are at stake: The photographer’s religious interest in not sanctioning a same-sex union, or the couple’s right to be free from discrimination?

There are several common moves that RL advocates make in such cases.

First, they generally portray only one side of this equation. For example, after describing the New Mexico case, Thomas Berg writes, “It is likely in the future that religious dissenters, organizations, and individuals, will more frequently face a Hobson’s choice between facilitating same-sex marriages against their conscience and giving up their charitable activities or small businesses.”¹⁶ There is no mention here that refusing to “facilitating same-sex marriages” is an act of discrimination, not merely a religious practice.

Second, “religious liberty” arguments generally invent religious observances where none had existed before. There is no Christian teaching forbidding people from photographing something they may find objectionable. Suppose the photographer were a conservative Catholic who agreed with Pope Benedict XVI’s statement that other religions are “deficient.” Would she be barred by Catholic doctrine from taking pictures of a Jewish couple? Is taking a photograph, as a professional who advertises doing so as a business, a religious act at all?

Third, discriminating merely because one is offended is illegal, regardless of whether the feeling of offense comes from religion or not. The photographer, Elaine Huguenin, may have been offended in some way, but she might also have been offended by an interracial couple, or an interfaith couple. Would such discrimination be legal? Huguenin was required only to offer the services she publicly advertised to all comers. When one enters the marketplace as a business, one agrees to a whole host of rules. Perhaps one’s religion teaches that it is acceptable or even required to defraud unbelievers; nonetheless, doing so is illegal.  Perhaps one’s religion teaches that women’s hair must always be covered; nonetheless, one may not require such observance among one’s customers.  In all cases, believers are “rendering unto Caesar what is Caesar’s” by obeying the secular civil law.

Fourth, is it even true that a photographer is “facilitating same-sex marriages against [her] conscience?” The term “facilitating” suggests that the photographer enabled the marriage, which is incorrect.

As Professor Chai Feldblum has discussed in several articles,¹⁷ religious liberty claims are not absolute. When they bump up against other civil rights, they may prevail, or may fall. Yet RL rhetoric is asymmetrical and unclear. What is abridged in the New Mexico case and similar ones is the ability to act in a non-religious, discriminatory way on the basis of a professed religious conviction. Taking a photograph is not facilitating a marriage, or blessing it, or solemnizing it.  It is not a religious act at all but a commercial one—subject to a host of laws, and impacting other parties’ rights.    

Expanding the Sphere

Finally, “religious liberty” activists subtly expand the sphere of religious exemptions.  Typically there are five tiers of actors:

1. Churches, clergy, and religious institutions
2. Religious organizations
3. Religious-affiliated organizations
4. Religious-owned businesses
5. Religious individuals  

The law treats these tiers differently: Churches are rarely required to obey anti-discrimination laws, for example, but religious organizations may be, and religious-owned businesses are. RL rhetoric deliberately misstates harms upward, and tactically expands exemptions downward. On the one side, no clergy will ever have to solemnize any marriage against her/his beliefs, yet restrictions on tier 4 or 5 individuals are cynically extended by RL messaging to tier 1. On the other side, RL advocates are clearly pursuing a staged plan to migrate extensions downward. For example, in the New York same-sex marriage debate, existing law exempted tier 1, Republican state senators won exemptions for tiers 2 and 3, but at least one senator held out for tiers 4 and 5, and ultimately voted against marriage equality.

This expansion of the sphere of exemptions is best illustrated in the example of the so-called “HHS Mandate.”

Though it is hardly ever reported in the media, this provision did not in fact originate with “Obamacare.” In 2000, the U.S. Equal Employment Opportunity Commission held that failure to provide contraceptive coverage violates the 1978 Pregnancy Discrimination Act, an amendment to Title VII of the 1964 Civil Rights Act that outlaws, among other things, discrimination based on sex.¹⁸ Thus, contraception coverage has been the law for all employer-sponsored comprehensive health plans for businesses with more than 15 employees for 12 years. And 26 states already have laws requiring contraceptive coverage, laws that have been upheld in court.¹⁹

What transpired, however, was anything but settled. In January 2012, HHS Secretary Katherine Sebelius announced the new policy. Though it exempted churches and religious nonprofits (tiers 1 and 2 of the above taxonomy), Catholic churches and charities immediately objected.²⁰ On February 10, 2012, HHS announced a compromise, in which insurance providers, rather than employers, would absorb the cost of the deductible.²¹ This would have seemed to remove the conscience-offending causality. But by then, the Catholic Church (and in particular the USCCB) was empowered and took on the entire HHS provision, including the part that was already part of settled law. The Becket Fund has since filed 58 lawsuits challenging the HHS Mandate.²²

On February 1, 2013, the Obama administration proposed allowing faith-based hospitals and universities—not merely churches and religious organizations—to issue plans that do not provide birth control (i.e., tier 3, in addition to tiers 1 and 2). They would not have to contract, arrange, pay or refer for any contraceptive coverage to which they object on religious grounds.  The women who work for this second group would still get birth control coverage, but it would come through a separate, individual plan, not from the religious organization’s plan. This is a huge concession and should represent a victory for the “religious liberty” campaign.  But in a statement, the Becket Fund said the new rule “does nothing to protect the religious freedom of millions of Americans”—in other words, tiers 4 and 5.²³ The  tactic of expanding the sphere of exemptions has had such success that it is now focused on obtaining religious exemptions for any corporation that wishes to obtain them.  

Effectiveness

Current data on the overall effectiveness of the “religious freedom” strategy are mixed. According to the Public Religion Research Institute (PRRI), 49 percent of Americans do not believe that religious freedom is threatened in America today, while 50 percent do believe that it is being threatened.²⁴ Correlating those data with statistics on Americans’ religious beliefs generally—e.g., 46 percent believe in creationism²⁵—this suggests that it is primarily religious traditionalists who believe that religious freedom is under attack. In other words, Becket and others may be preaching to the choir. Of course, conservative “religious liberty” campaigns are multifaceted and may have success in the courts and legislatures, even if public opinion lags behind. Interestingly, the PRRI data showed relatively little difference between Roman Catholics and Protestants on this issue: 55 percent of Catholics said religious freedom was not being threatened, while 44 percent said it is.²⁶

On another issue, that of adoption, the conservative religious liberty argument has failed to gain much traction beyond those already convinced. Sixty three percent of Americans do not believe that religiously affiliated agencies should be able to refuse to place children with same-sex couples, if those agencies receive federal funding.²⁷  This may be in part because the question included the issue of federal funds. Much of the public may not know that Catholic Charities benefits from millions of dollars of federal funding.

It is also worth noting that there may be some truth to the Christian Right’s fears that America is growing less religious—and looks to continue doing so. A Pew report from October 2012 found that the “nones”—Americans who are religiously unaffiliated—are rapidly growing, and now comprise 19.6 percent of Americans,²⁸ with higher percentages among younger age groups. It is also true, of course, that LGBTQ rights have made astonishing advances in recent years (even as women’s rights to healthcare have diminished over the same period). So the overall metric of effectiveness may be these deeper trends, which portend a diminishment in the power of religion to influence public opinion.