Religious Liberty and the Fate of Civil Society

The state of religious liberty in America is muddled. On one hand, even as the population as a whole becomes more secular, we have a plethora of religious institutions and networks that run the theological gamut from Anglicans to Zoroastrians. Innovation and entrepreneurship is alive and well in a diverse religious sphere that would’ve been unrecognizable when the vast majority of Americans were regular churchgoers.

On the other, religious liberty beyond the bare freedom to worship is under threat from government mandates, weaponized antidiscrimination laws, and other intolerances brought on by the progressive left. For example, U.S. college campuses have become a hotbed of anti-Semitism even as such incidents decline worldwide (presumably because Jews are disfavored in the latest intersectional hierarchy of privilege). The rise of the alt-right doesn’t help.

The Supreme Court, for its part, has taken a middle stance—largely because these cases often turn on the whims of Justice Anthony Kennedy—making the government relent in cases like Burwell v. Hobby Lobby (2014) and Zubik v. Burwell (2016) but not allowing student groups to restrict membership to actual believers in Christian Legal Society v. Martinez (2011). The Court hasn’t yet taken one of the wedding-vendor cases that ask whether religious businesses can be punished for declining to service same-sex weddings—but it can’t resist them forever.

And then you have a new presidential administration headed by an unlikely hero of the God-fearing. Indeed, Donald Trump owes his surprise election to a vast swath of religious voters—many of whom held their noses to pull the lever for a twice-divorced New York playboy. They likely thought (not inaccurately) that a Hillary Clinton presidency would’ve been more threatening to their interests, not least regarding Supreme Court and other judicial appointments. At the same time, this president rolled out his immigration-related policies in such a haphazard and under-lawyered way that they fed into the narrative that his executive actions have been anti-Muslim. And perceptions have not been helped by the statements candidate Trump made on the campaign trail.

It’s hard to synthesize the state of religious liberty in America given these countervailing trends, but let’s survey a few of the issues I’ve referenced.


Religious Exemptions from Federal Mandates

First, we have the issue of religious exemptions to generally applicable laws. Through most of American history, religious objectors only got relief if the law explicitly provided it. For example, Quakers were historically exempt from being drafted into the military. In the 1960s, however, the Supreme Court began recognizing constitutionally required exemptions. That experiment only lasted until 1990, when, in a controversial opinion (Employment Division v. Smith) by Justice Antonin Scalia, the Court ruled that generally applicable laws were valid so long as they don’t specifically discriminate against religious people. If religious objectors wanted an exemption from such laws, they would have to seek it from the legislature.

As it turned out, criticism of the decision came from all ideological sides; no part of the political spectrum was too pleased with the new rule on religious non-accommodation. Accordingly, Congress passed the Religious Freedom Restoration Act of 1993 (RFRA), which created a presumptive statutory exemption from generally applicable laws, subject to the government’s showing that the burden it imposed on religious believers was “the least restrictive means of furthering [a] compelling governmental interest.” It may be strange to imagine two decades hence, but under the leadership of then-Rep. Chuck Schumer (D-NY) and Sen. Ted Kennedy (D-MA), RFRA passed unanimously in the House and by a 97-3 vote in the Senate before being signed by President Bill Clinton.

That’s where things stood when the Affordable Care Act came along. Given Obamacare’s myriad constitutional and civil-rights violations it should be no surprise that it caused the latest legal battle involving government intrusion on religious liberty.

Take the contraceptive mandate cases, Burwell v. Hobby Lobby (2014, regarding for-profit companies) and Zubik v. Burwell (2016, regarding nonprofits). The government claimed that these were about ensuring that all women had access to contraception. Many in the media (and several senators), purporting to be concerned about women’s rights, claimed that the issue was whether employees would have access to birth control despite their employers’ religious objections. Those on the other side argued that the case concerned every American’s right to freely exercise religion.

David and Barbara Green, who own the Hobby Lobby chain of arts-and-crafts stores, had long provided healthcare benefits to their employees (they believe it is their Christian duty), but they had not paid for abortions. A regulation interpreting the ACA’s instruction to cover “preventive care” required them to pay for their employees’ contraceptives—including those that can prevent the implantation of fertilized eggs, which the Greens consider to be an abortifacient and therefore against their religious beliefs. The alternative was to pay $1.3 million in daily fines. Nonprofits like the Little Sisters of the Poor had broader objections, but nobody disputed that they were religious organizations to begin with.

These cases, however, were not ultimately about balancing religious liberty against other rights. Hobby Lobby involved a simple question of statutory interpretation regarding whether the government was justified there in overriding certain religious objections. Zubik asked whether the government was doing all it could to accommodate religious groups, as RFRA required. The Supreme Court evaluated these questions and ruled that (1) closely held corporations can’t be forced to pay for every kind of contraceptive for their employees if doing so would violate their religious beliefs, and (2) that a better accommodation could be forged.

In both cases, the government failed its RFRA obligation to show that it had no less burdensome means of accomplishing its stated goal of providing female workers with “no-cost access to contraception.” There was no weighing of religion versus access to birth control. Nobody was denied contraceptives, and there’s now more freedom for all Americans to live as they wish, without being forced to check their consciences at the office door.


State Public Accommodations Laws

But what about state laws, which the federal RFRA doesn’t touch? That’s where another set of cases, which the Supreme Court has not yet considered, come in. Here we see infringement of religious liberty in the spillover from the gay marriage debates, with people being fined for not working same-sex weddings: the Washington florist, the Oregon baker, the New Mexico photographer, and many others. There’s a clear difference between arguing that the government has to treat everyone equally—the legal dispute regarding state issuers of marriage licenses—and forcing private individuals and businesses to endorse and support practices with which they disagree. 

It’s disappointing but not surprising that Elane Photography lost its case, despite New Mexico’s own state RFRA. Despite gay-rights activists’ comparing their struggle to the Civil Rights movement, New Mexico is not the Jim Crow South, where state-enforced segregation left black travelers nowhere to eat or stay. A search yields over 100 photographers in the Albuquerque area, most of whom would be happy to take anyone’s money.

Many of these cases implicate freedom of speech even before religious considerations. Take, for instance, a freelance writer who refuses to write a press release for a religious group with which he disagrees. Under several state courts’ theories, such a refusal would be illegal because it discriminates based on religion—much as Elaine Huguenin’s refusal to photograph an event with which she disagreed was treated as violating the law. Yet a writer must have the First Amendment right to choose which speech he creates, notwithstanding state law to the contrary. 

Likewise with photographers and florists, who create visual rather than verbal expression. The Court has said repeatedly that the First Amendment protects an “individual freedom of mind,” which the government violates whenever it tells a person that she must or must not speak.

Upholding individual freedom and choice here would inflict little harm on those who are discriminated against. A photographer who views same-sex weddings as immoral would be of little use to the people getting married; there’s too much risk that the photographs will, even inadvertently, reflect that disapproval. Those engaging in such a ceremony—or, say, entering into an interfaith marriage, or remarrying after a divorce—would benefit from knowing that a prospective vendor looks down on their union, so they could hire someone more enthusiastic.

In starker terms, would you want Unitarians to work the audio equipment at a Southern Baptist revival? Would you force a Jewish printer to produce anti-Semitic flyers? Would you require Muslim butchers to serve pork ribs? For that matter, gay photographers shouldn’t be forced to work fundamentalist celebrations, blacks shouldn’t be forced to work KKK rallies, and environmentalists shouldn’t be forced to work job fairs in logging communities.

When someone tells you that she won’t work your wedding, you may understandably be offended. But avoiding offense isn’t a valid reason for compelling speech or behavior.


Religious Groups and Public Benefits

The final set of cases to arise lately involve the eligibility of religious organizations for generally available public benefits. Just last month, the Supreme Court heard argument in Trinity Lutheran Church v. Pauley, in which a Missouri church was denied a state playground-resurfacing subsidy on the sole ground that it was a religious institution.

Justice Anthony Kennedy opened the questioning by expressing concern for the use of religious status to deny government benefits. It was mostly downhill from there for the state, as Justice Samuel Alito launched into a series of hypotheticals regarding Homeland Security funds for terrorism prevention, grants to rebuild religious structures damaged in the Oklahoma City bombing, and other transfers to pay for certain non-devotional expenses. Justice Stephen Breyer also got into that mix, questioning how police, fire, and other public health protections were okay but making playgrounds safe was not. Even Justice Elena Kagan, at first skeptical of the church’s position, acknowledged discomfort with the burden Missouri had placed on a constitutional right.

Trinity Lutheran looks to be a 7-2 win for the church, but my basic position remains that while Missouri isn’t required to have a scrap-tire grant program, once it created one, it must open it to all without regard to religious status. The same logic applies to school-choice programs, whether based on vouchers or tax credits: the state Blaine Amendments that have been used to stymie these were created nationwide in the late 19th century not simply to separate church and state, but to harm minority religious sects, especially Catholics. Moreover, a state constitutional provision can’t trump the U.S. Constitution, which prohibits discrimination against religion. 


Future Battles

Many of our culture wars are a direct result of government’s forcing one-size-fits-all public-policy solutions on a diverse nation. All these issues will continue to arise as long as those in power demand that people adopt politically correct beliefs or cease to engage in the public sphere.

The left’s outcry over religious free-exercise cases shows a more insidious process whereby the government foments social conflict as it expands its control into areas of life that we used to consider public yet not governmental. This conflict is exceptionally fierce because, as Megan McArdle put it, “the long compromise worked out between state and religious groups—do what you want within very broad limits, but don’t expect the state to promote it—is breaking down in the face of a shift in the way we view rights and the role of government in public life.”

Indeed, it is government’s relationship to public life that is changing—in places that are beyond the intimacies of the home but still far removed from the state, like churches, charities, social clubs, small businesses, and even “public” corporations that are nevertheless part of the private sector. Through an ever-growing list of mandates, rules, and “rights,” the government is regulating away our Tocquevillian “little platoons.” That civil society, so important to America’s character, is being smothered by the ever-growing administrative state that, in the name of “equality,” negates rights to standardize American life from cradle to grave.

The most basic principle of a free society is that government can’t force people to do things that violate their consciences. Americans understand this point intuitively. Some may argue that in the contraceptive-mandate cases there was a conflict between religious freedom and reproductive freedom, so the government had to step in as referee—and women’s health is more important than religious preferences. But that’s a false choice, as President Obama liked to say. Without the HHS rule, women are still free to obtain contraceptives, abortions, and anything else that isn’t illegal. They just can’t force their employer to pay the bill.

The problem that Hobby Lobby and Zubik exposed isn’t that the rights of employers are privileged over those of employees. It’s that no branch of our federal government recognizes everyone’s right to live his life as he wishes in all spheres. Instead, we are all compelled to conform to the morality that those in charge of the government have decided is right.

We largely agree—at least within reasonable margins—that certain things are general needs and their provision falls under the purview of the federal government, such as national defense, basic infrastructure, clean air and water, and a few other such “public goods.” But most social programs, many economic regulations, and so much else that government now does are subjects of bitter disagreements precisely because these things implicate individual freedoms—and we feel acutely, as Americans, when our liberties have been attacked.

The trouble is that when government grants us freedoms instead of protecting them, the question of exactly what those freedoms are becomes much less clear, and every liberty we thought we had is up for discussion—and regulation. Those who supported the religious believers in the contraceptive-mandate cases were rightly concerned that people are being forced to do what their deepest values prohibit.

What delicious irony it will be if Donald Trump saves us from this collectivized territory.

Also from this issue

Lead Essay

  • Ilya Shapiro reviews recent U.S. Supreme Court cases on religious liberty and examines how each of them is the product of government intrusion into civil society - into areas of life that, while public, are nongovernmental. These include organized religions, businesses, and private civic and social groups. These institutions of civil society do much good work, and Americans of all political persuasions are increasingly aware that they are under attack. We are brought into needless conflict with one another, Shapiro writes, whenever the government decrees how these institutions must conduct themselves with regard to matters of conscience.

Response Essays

  • David H. Gans draws our attention away from the Free Exercise Clause and toward the Establishment Clause. A ban on travel from overwhelmingly Muslim countries - and not on travel from others - constitutes an official disfavor, he argues, particularly in light of the clear statements that have been made about the ban’s intent. The greatest threat to religious liberty today is the threat to the religious liberty of Muslims. Meanwhile, he argues, religious exemptions to general laws are often of doubtful legality and tend to threaten the liberties of those whom they do not single out for protection.

  • Religious liberty is protected in two ways in our Constitution: First, the government may not establish any religion, nor may it officially disfavor any; and second, individuals’ free exercise is also protected. K. Hollyn Hollman urges us to reject too-simple narratives about religious liberty and government interference, though, because the politicization of religious liberty is itself a danger to religious liberty. Political point-scoring makes workable compromises harder to find.

  • Robin Fretwell Wilson issues a call for compromise in today’s battles over the Establishment Clause. There can be no expectation that either the religiously observant, or those to whom they object, will disappear from our society anytime soon. And yet life must go on. Compromise is not such an unreasonable thing to expect, she argues, because all have a vested interest in finding ways to live together despite their differences.