Not long ago, when religious liberty cases reached the courts, the people seeking protection for their beliefs were mostly from small faith groups and their lawyers were liberals.
The contested issues were narrow: a demand that plain, black Amish buggies carry bright safety triangles, for instance, or bans on hallucinogenic tea in a Native American ritual.
The resolutions of these cases were as narrowly drawn as the complaints themselves. A judge might carve out an exemption for the practice in question, and life would go on as usual for everyone else.
But after years of culture wars, and amid recent gains for gay rights, the politics of religious liberty has been transformed. Now exemptions are being sought by the largest faith groups in the country, the burning issues are marriage and sex, and the term religious freedom has taken on a new, politicized meaning.
“Things have changed dramatically in the last 20 years,” said Michael Moreland, vice dean and a professor at Villanova University Law School. “Back then, the Catholic Church wasn’t very often in the position of needing exemptions.”
The new terms of the debate were on display in the recent Hobby Lobby case over birth control coverage for workers.
The plaintiff was a multibillion dollar arts-and-crafts chain owned by conservative Christians. At stake was broader access to contraception for many women. The religious leaders championing the Hobby Lobby case were from the Roman Catholic Church and the Southern Baptist Convention – the largest and second-largest denominations in the country.
The justices ruled June 30 that Hobby Lobby and other closely held private businesses with religious objections could opt out of providing the free contraceptive coverage required by the Affordable Care Act. Many opponents, outraged by the decision, vowed they would fight to repeal the law at the center of the case: the Religious Freedom Restoration Act.
“We’ve gone from a moment a quarter-century ago where it’s small religious minorities who want to do their thing in private to very large religious minorities – Catholics and evangelicals and Mormons – who feel they’re being oppressed by a hostile society,” said Mark Silk, director of the Leonard Greenberg Center for the Study of Religion in Public Life at Trinity College in Hartford, Conn. “Now we’re talking about potentially significant numbers of women who do not get contraceptive coverage, or significant numbers of men and women who are gay and lesbian.”
Smaller-scale religious liberty cases continue to arise over issues such as wearing a Muslim veil in a driver’s license photo or a Sikh turban to work.
But the loudest cries over religious freedom are coming from the conservative leaders of major religious groups, especially when equal rights for gays and lesbians are at stake. In many state legislatures, bills on recognizing same-sex marriage have been held up – or killed – over disagreements about the breadth of the religious opt-out.
President Barack Obama recently was pressured by groups seeking or opposing a broad new religious accommodation in an executive order on job protection for gay and transgender employees of the federal government or federal contractors. The president did not add an exemption, but left in place a provision that allows faith groups to hire and fire based on religious identity.
The U.S. Conference of Catholic Bishops condemned the executive order as “extreme.”
Many Americans perceive reactions such as these, and demands for exemptions, as an attempt by “losers in the culture war to hold onto a position” that broader society has generally rejected, said Cathleen Kaveny, a Boston College professor of law and theology.
“If you lose a political battle, do you get a second bite at the apple – that my religious freedom has been violated?” Kaveny said. “The context has shifted.”
So has the rhetoric. Compromises that resolved many religious liberty disputes in the past seem impossible to reach in the current climate. On gay rights especially, groups see the other side as advocating something deeply immoral and both sides see a moral imperative for an all-out win. It is common now for conservative pastors to vow they would go to jail rather than comply with a law they consider contrary to their beliefs. Gay rights’ supporters, meanwhile, have come to see religious liberty complaints as cover for bigotry.
“We know that conservatives will continue to market their prejudices under the guise of religious freedom,” said the Rev. Nancy Wilson, head of the Metropolitan Community Churches, a denomination formed as a refuge for gay Christians. “Everyone loves religious liberty, but we dare not confuse sincere prejudice with sincere religion.”
Religious exemptions always have had their critics and controversies. But until recently, Americans generally leaned toward accommodating faith groups, even at times when the beliefs in question were considered unpopular, such as religious objections to wartime military service. Exemptions can be found in thousands of laws and regulations nationwide.
In 1990, when this tradition of support appeared in jeopardy, the outrage spanned the political and theological spectrum. That year, the U.S. Supreme Court ruling in Employment Division v. Smith made it tougher to obtain some religious liberty protections. In response, a wide-ranging coalition, from People for the American Way to the Southern Baptist Convention, won passage of the 1993 Religious Freedom Restoration Act. Under the law, the government would have a much more difficult time defending and keeping any laws that infringe on religious freedom.
Yet, four years later, when Congress tried to revise the statute so it would also apply to state laws, the effort failed. The coalition that won passage of the original law was fracturing in part over the coming conflict between civil rights for gays and lesbians and religious freedom for groups who consider same-sex relationships a sin.
After the Hobby Lobby ruling, the more liberal members of the coalition behind the Religious Freedom Restoration Act found themselves in an awkward position. When Congress passed the measure nearly unanimously, and President Bill Clinton signed it into law, the statute mostly was expected to help minority faiths carve out space for themselves amid the nation’s Christian majority.
Two decades later, the quest for religious liberty has been turned on its head. The toughest upcoming fights will revolve around how nondiscrimination laws apply to the hundreds of thousands of faith-affiliated social service agencies, colleges and charities that take government money while also trying to maintain their religious identity. Many of the largest nonprofit groups are run by the Catholic Church and evangelical groups. Government funding worth hundreds of millions of dollars is potentially at stake.
“The heart of this issue is the question of discrimination and the way in which anti-discrimination legislation bumps up against certain kinds of religious liberty,” Silk said. “It set up a deep tension between two strong values in a society: the nondiscrimination and the religious liberty value. Anybody who pretends that that’s a simple thing to resolve – they’re kidding themselves.”