PFAW Issues Report on ‘Religious Liberty’ Arguments

PFAW Issues Report on ‘Religious Liberty’ Arguments February 12, 2015

One thing we’ve seen happening more and more in recent years is the Christian right invoking the idea of religious liberty to demand exemptions from the same laws that everyone else has to follow. People for the American Way has a new report out about the strategy behind these claims and the history of the concept of religious liberty. It states what ought to be obvious but apparently is not to far too many:

Two decades ago, an extraordinarily broad coalition came together to strengthen legal protections for religious liberty by limiting the government’s authority to substantially burden an individual’s ability to exercise his or her faith. That law was a response to a Supreme Court ruling that threatened to undermine protections for religious minorities, and it reflected a strong, interfaith, bipartisan consensus. Today, however, that consensus has been shattered because social conservatives are trying to turn laws meant to shield individuals’ religious exercise into swords that individuals and corporations can use against anti-discrimination laws and other measures opposed by conservative religious groups.

With Religious Right groups crying “religious persecution” in response to the advance of marriage equality, and the Supreme Court’s conservative majority granting for-profit corporations the right to claim religious exemptions to laws that offend the owners’ religious beliefs, even when that comes at the expense of their employees’ interests, it is a good time to affirm some basic truths:

  • Religious freedom and equality under the law are both core constitutional principles;
  • Religious liberty, while fundamental, is not absolute, in the same way free speech and other constitutionally protected values are not absolute;
  • The government has a compelling interest in promoting public health and preventing discrimination;
  • Judges and other public officials regularly have to make difficult calls when constitutional and civil rights principles come into tension with each other;
  • Having your positions criticized in public discourse is not the same as being subject to persecution; neither is being on a losing end of a legal or policy dispute.

I don’t really agree on the first part. The Religious Freedom Restoration Act was indeed a bipartisan consensus at the time, passing both houses of Congress nearly unanimously (three no votes in the House, none in the Senate), but that doesn’t mean it was a good idea or is constitutional. Giving religious people, and only religious people, a “get out of the law free” card is, in my view, an obvious violation of the Equal Protection Clause because it sets up a two-tiered system of laws, one that applies to religious people and one that applies to everyone else.


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