Ilya Shapiro argues that religious liberty is at risk, and that progressives are to blame. He writes that “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,” and he argues that courts should play a muscular role in exempting religious objectors from these forms of government regulation. But the facts simply don’t fit Shapiro’s account. He all but ignores threats to religious liberty and equality that don’t fit into his narrative, including most notably President Donald Trump’s crusade against Muslims. In fact, Shapiro does not even discuss the Establishment Clause, which is just as much a part of the First Amendment as the Free Exercise Clause. In Shapiro’s analysis, free exercise looms large, while anti-establishment principles are wholly ignored.
Yet perhaps the biggest religious liberty cases of the day are the challenges to President Donald Trump’s revised travel ban in which courts around the country have barred Trump’s effort to make good on his campaign promises to enact a “Muslim ban.” The key issue in these cases is whether Trump’s travel ban violates what the Supreme Court has called the “clearest command of the Establishment Clause”: “one religious denomination cannot be officially preferred over another.” This month, the Fourth and Ninth Circuits will hear the Trump Administration’s appeals from decisions by district courts in International Refugee Assistance Project v. Trump and Hawaii v. Trump, both of which held that the plaintiffs were to likely to succeed on their claim that the Muslim travel ban violates the Establishment Clause. By next term, one or both of these cases could reach the Supreme Court.
Trump’s effort to write religious discrimination into our immigration laws is a frontal assault on our constitutional first principles, and I would challenge Shapiro to admit as much. We face something much more serious than just some problems in the way the Trump Administration rolled out its policy.
Our Constitution’s Framers understood that immigration rules could be used to entrench a religious majority and disfavor a religious minority. In colonial Virginia, laws that required immigrants to swear an oath of the Anglican Church’s supremacy effectively kept Catholics out of the state. James Madison railed against such religious favoritism, observing in his famed Memorial and Remonstrance against Religious Assessments that “the first step … in the career of intolerance” is to place “a Beacon on our Coast,” warning the “persecuted and oppressed of every Nation and Religion” that they must “seek some other Haven.” The Religion Clauses of the First Amendment, together with Article VI’s ban on religious tests for officeholding, ensure, in the words of George Washington, that “the Government of the United States … gives to bigotry no sanction, to persecution no assistance.” The challenges to Trump’s Muslim travel ban present a huge test of fidelity to these founding principles. If Shapiro wants courts to vindicate religious liberty, these cases provide a sterling example.
Instead, Shapiro focuses primarily on a host of cases concerning the scope of religious exemptions from neutral laws, demonstrating that, in his view, religious liberty is primarily about exempting religious believers from laws that are applicable to all of us. These claims for religious exemptions, he argues, are a direct outgrowth of the fact that “civil society … 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.” In discussing this topic, much of his essay covers familiar ground. He argues that the Supreme Court’s 5-4 decision in Hobby Lobby was right. He thinks that Zubik, the sequel to Hobby Lobby in which the Supreme Court punted, should have come out the same way. Finally, Shapiro weighs in on Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case the U.S. Supreme Court is currently deciding whether to take. According to Shapiro, a business owner—such as a baker or photographer—who refuses to provide services to a same-sex couple for their wedding has a First Amendment right to discriminate that trumps any applicable anti-discrimination law.
Religious accommodations and exemptions are sometimes necessary to vindicate religious liberty. Thomas Jefferson famously argued that “it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.” Sometimes, granting religious accommodation doesn’t harm others at all. The 2015 Supreme Court case of Holt v. Hobbs, in which the Justices unanimously granted a Muslim prisoner an exemption from an overbroad no-beard grooming policy, is a case in point.
But Shapiro champions the most suspect kind of religious exemptions: those that allow one party to impose their religious beliefs on another and extinguish their legal rights. Most troublingly, he offers no limiting principles of any kind. Shapiro’s argument would apply equally to a storeowner who claims that his religion commands racial discrimination, or to an employer who thought that providing family leave to a same-sex married couple made him complicit with sin.
Shapiro would empower business owners to impose their own religious beliefs on their employees and customers, who of course have religious convictions of their own. He would also extinguish important legal rights, such as, in Hobby Lobby and Zubik, rights to contraception coverage protected by the Affordable Care Act’s regulations or, in the wedding-vendor cases, anti-discrimination guarantees that require businesses to treat customers the same, without regard to race, sex, or sexual orientation. Making it easier for businesses to discriminate against employees and customers who don’t adhere to their religious code turns religious liberty on its head. Employees should not have their rights determined by their bosses’ religious views.
The Framing generation understood, in the words of one Pennsylvania minister, that “all … should have free use of their religion, but so as not on that score to burden or oppress others.” That’s why Framing-era conscientious objection laws often required Quakers and others opposed to combat on religious grounds to pay for or provide a substitute. But Shapiro views even the religious accommodation at issue in Zubik—which allowed religious objectors to opt out while third parties fulfill their legal obligations—as an affront to religious liberty. This is wrong. When the government acts to accommodate religion by allowing religious objectors to opt out and third parties to perform their legal obligations—as it has done for more than two hundred years in the context of military service—it respects religious liberty.
Shapiro claims that granting religious exemptions in the contraceptive coverage and wedding-vendor cases will not cause harm to anyone. He asserts that “women are still free to obtain contraceptives” and that “[u]pholding individual freedom and choice” by wedding-vendors “would inflict little harm on those who are discriminated against.” But Shapiro’s view of harm turns out to be unbelievably cramped and unmoored from the real world. IUDs—the most effective and also the most expensive form of birth control—are one of the kinds of contraceptives Hobby Lobby and others refused to cover; without insurance coverage, many women won’t be able to obtain them. Shapiro makes much of the fact that same-sex couples have a wide choice of potential florists or bakers, but discrimination is harmful whether or not you can go elsewhere to get the services you want. Indeed, that is why the law prohibits the sting of prejudice from discrimination. Under strict scrutiny, prohibiting discrimination—whether on account of race, sex, or sexual orientation—furthers a compelling governmental interest that cannot be advanced through less restrictive means.
Shapiro is a libertarian opposed to wide swaths of government regulation. But repackaging libertarian arguments against government regulation into claims of religious liberty does not make them more persuasive. It simply produces a perverted understanding of religious liberty that elevates the rights of corporations and business owners over those of workers and consumers.