Ilya Shapiro’s essay on religious liberty is written in a way that mirrors many of our current public policy debates. He mentions disparate phenomena and identifies a rising threat. Selecting a few of the most complex religious liberty issues, Shapiro oversimplifies them in an effort to blame a single enemy: an over-reaching government. While the government’s role deserves scrutiny, there is a fundamental problem with the essay. Religious liberty is not best understood or explained through an ideological lens that presumes that government is always the problem. Sometimes government infringes on religious liberty, but sometimes it also protects religious liberty by avoiding government sponsorship of religion, as well as by providing exemptions for religion.
Religious freedom is not just another policy issue that divides us along party lines. It is a fundamental constitutional value. Excessive partisanship and lack of nuance jeopardize it. Religious liberty is not easily simplified and should not be treated as belonging to one side of a bumper-sticker dichotomy, such as liberal vs. conservative; Democrat vs. Republican; religious vs. secular; or, in Shapiro’s view, government vs. the people. I sympathize with Shapiro’s description of the law as “muddled,” but that longstanding complaint is not easily resolved or aided by ridicule. I agree that diversity challenges our shared understanding, but it also stands as a testament to our success.
There are significant threats to religious liberty, and government gets in the way at times. But one of the biggest threats to our religious liberty is its politicization. Oversimplification, exaggeration, and myopia demean our legal tradition and make solutions harder to come by. In our law, religious freedom is protected in a distinct way—by limiting the government’s involvement in religion (no establishment) and by affirmatively providing accommodations and exemptions (free exercise). Both are essential and deserve bipartisan commitment. What if, instead of exaggerating threats of government overreach, we work to protect religious liberty for all, by keeping in mind the balance built into our first freedom that has served us well?
General and Specific Religious Exemptions Protect Free Exercise
Religious exemptions from general laws—whether constitutionally mandated or simply permissible as legislative accommodations—have long been part of our legal tradition to protect religious exercise. In general, exemptions take two forms: those that are specific to an anticipated religious liberty issue and those that provide a general standard for all religious liberty claims.
The Religious Freedom Restoration Act of 1993 (RFRA) is an example of the general standard kind of exemption. It applies to all claims equally, including in contexts that were not anticipated when it became law. The Baptist Joint Committee led the charge to pass RFRA, has defended its standard, and in 2013 worked to commemorate its passage and evaluate its status.
RFRA was designed to protect the exercise of religion against substantial burdens from even incidental government actions. Its structure takes into account the balance between protecting religious exercise and serving other interests, including the rights of others. The key to RFRA’s bipartisan support was this strong standard, applicable to any claim. RFRA doesn’t guarantee any particular religious claim will succeed, and in fact many do not, but it benefits religious liberty by ensuring that each claim gets its day in court. Most successful RFRA claims are claims by individuals that have no detrimental impact on third parties.
Prior to Burwell v. Hobby Lobby (2014) and other cases challenging the contraceptive mandate, RFRA was not well known, nor was it so widely criticized. Most people first learned about RFRA when it was invoked in the highly politicized context involving national health care, reproductive rights, and the status of corporations. In Hobby Lobby, the religious liberty claim prevailed, both because RFRA’s broad statutory language that applied to any “person” was interpreted to include closely held corporations, and because the government had already accommodated a similar objection for religious nonprofit corporations. In other words, the design of the contraceptive mandate showed that the government’s interest in providing the benefit to the employees could be met through secular insurance companies without imposing a substantial burden on Hobby Lobby.
The impact of Hobby Lobby, however, has been a growing suspicion about religious exemptions. The case raised alarms that an employer’s religious interests might always prevail over the rights of employees and that RFRA would be used to harm others, particularly in the commercial context. Many who defend the outcome in Hobby Lobby also recognize that RFRA has limits; otherwise the whole enterprise falls apart. In Zubik v. Burwell (2016), religious institutions used RFRA to challenge a specific accommodation designed for them and upheld in Hobby Lobby. Their claims went too far in asking for an absolute exemption, which threatened to deprive employees of a benefit paid for by secular insurance companies without cost to the religious institutions. Shapiro and others who argue for religious exemptions without recognizing limits for those claims make exemptions much less popular and less likely to be passed by legislatures.
Specific religious exemptions—those that are carefully crafted to address particular issues—are also important to protect religious liberty. Recently clashes between religious objectors and legal protections for LGBT people, particularly in the private marketplace, have provided fertile ground for discussion of specific exemptions but yielded few results. Again, the politicization of the issues has taken a toll on finding solutions.
Religious objectors and LGBT advocates are both fighting to protect what each claims is at the very core of their identities and most in need of preservation. Compromise, in the best of our democratic tradition, is possible if all sides are willing to come to the negotiating table. It may not be easy, but we’ve seen it happen in Utah (employment, housing, employee speech, access to marriage licenses) and in all the states that legislatively enacted same-sex marriage (reaffirming that clergy and/or houses of worship cannot be required to participate in any wedding ceremony).
Many city and state public accommodation laws already have some sort of religious exemption. The question is whether such an accommodation should apply in a for-profit commercial setting. Various proposals have been suggested that would permit such accommodations limited by the corporation size, availability of the goods and/or services in a reasonable proximity, the nature of the event, and the business owner’s involvement (e.g., whether a caterer attends the wedding ceremony or simply sells a pre-made cake off the rack). So far, however, the politicization of competing claims has made attempts to find solutions politically unworkable.
Special Treatment for Religion beyond Exemptions
Protecting free exercise, including through religious exemptions, is only one half of our religious liberty tradition. “No establishment” principles are less well understood, but they are key to ensuring religious freedom. Shapiro’s essay embraces religion’s special treatment on one side, but he ignores it on the other. Treating religion in unique ways when it comes to government funding is a valid, historic interest that serves religious liberty. The Supreme Court recognized this concern in Walz v. Tax Commission (1970) when it held “for the men who wrote the Religion Clauses of the First Amendment the ‘establishment’ of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity.” The Establishment Clause of the First Amendment and corollary provisions in state constitutions protect against government-funded religion.
Baptists and other religious dissenters led the American fight for disestablishment. At the heart of their concerns was opposition to tax support for churches. Churches should be supported by the voluntary offerings of adherents, not the compulsory taxation of all citizens. Our colonial leaders knew that there would be no free exercise of religion if the government could force everyone to financially support government-approved churches.
The Baptist Joint Committee for Religious Liberty continues to defend the no-aid to houses of worship principle, which remains vital for historical and practical reasons. It indisputably comes out of the founding era fights to disestablish religion and not anti-Catholic animus from the 19th century. In fact, 27 of the 39 states that have retained constitutional bans on direct funding of houses of worship have at least one provision based on Thomas Jefferson’s 1786 Virginia Statute for Religious Freedom that provided that no man shall be compelled to support “any religious worship, place, or ministry whatsoever.” This radical protection for individual conscience against government overreach remains important today. Religious liberty protections against government funding of religion—at the federal and state level—should not be dismissed as discrimination.
Government does not grant us freedom, but it is charged with protecting our freedoms. Religious liberty is protected in a distinct way in our constitutional tradition—both protecting the free exercise of religion and prohibiting the establishment of religion. Religious exemptions protect the free exercise of religion, as does the promise of no establishment. Shapiro does not address the importance of “no establishment” values—such as avoiding government funding of religion—which leads to the exaggerated claim that treating religion differently is simply discrimination harmful to religious liberty.