What does American “religious freedom” now mean?
THE RELIGION GUY’S ANSWER:
Protection of Americans’ “free exercise” of religion has been guaranteed by the Bill of Rights for 229 years and counting. Till recently, people generally agreed on what this means. The debates involved whether this constitutional right should be exercised or restricted in specific, unusual situations. For example, the Supreme Court has permitted the Santeria faith to conduct ritual slaughter of animals, and exempted Amish teens from mandatory high school attendance laws.
Now this principle is swept up into culture wars that divide the population and the two political parties. In October, the Brookings Institution, a moderately liberal think tank, issued a lengthy white paper titled “A Time to Heal, A Time to Build” with recommendations on religion policy for the U.S. president. It states that the older consensus “began breaking down as new issues emerged, particularly around the struggle for LGBTQ equality.” Brookings consulted 127 experts on church and state for this document, though few were from the so-called “religious right.”
Consider some history: Back in 1993, Democrats were central in passage of the federal “Religious Freedom Restoration Act.” Then-Congressman Chuck Schumer, who is Jewish, introduced the bill in the House, where it won 170 co-sponsors and easily passed by voice vote. In the Senate, Ted Kennedy, a Catholic, was the Senate co-sponsor with Republican Orrin Hatch, a Latter-day Saint, and the act was approved 97 – 3. President Bill Clinton, a Protestant, signed it into law.
The act states that government cannot “substantially burden” the “exercise of religion,” even when the burden applies to people generally, unless limiting of the freedom is “the least restrictive means” to further a “compelling governmental interest.” Those whose freedom is wrongly suppressed have the right to “obtain appropriate relief” in court. (This restored prior U.S. Supreme Court doctrine that the court had shelved in its 1990 Smith ruling.)
That was then. Last year, House Democrats voted unanimously in favor of the “Equality Act” to protect LGBTQ persons from all forms of discrimination, including in cases of “gender-related identity, appearance, mannerisms, or other gender-related characteristics” that differ from the “designated sex at birth.” (Text: www.congress.gov/bill/116th-congress/house-bill/5/text).
Importantly, the Democrats’ bill would explicitly prohibit any use of the 1993 religious freedom law to challenge the application or enforcement of anti-discrimination policies.
House Republicans voted against the Equality Act by 173 to 8, noting the Bill of Rights problem, and the Republican Senate shelved the measure. Then a group of House Republicans introduced the rival “Fairness for All Act,” which accepts the anti-discrimination principles in the Democrats’ bill but adds language to accommodate conscience claims from religious individuals and agencies that uphold traditional teaching on sexuality. (Text: www.congress.gov/bill/116th-congress/house-bill/5331/text?r=1&s=1).
The incoming Joe Biden – Kamala Harris administration is vowing to enact the Equality Act in its first 100 days in office as “a top legislative priority.” Passage presumably depends on whether Republicans maintain Senate majority control in January 5 runoffs for two Georgia seats. In all, the Biden-Harris White House posts 20 pages of LGBTQ+ programs and pledges at https://joebiden.com/lgbtq-policy/. Other proposals would, for instance, require religious agencies to allow adoption and foster placement with same-sex couples, open transgender access to school bathrooms and locker rooms, and reshape foreign policy.
The current era’s liberal understanding is neatly articulated by Americans United for Separation of Church and State. This group defines what it calls “true” religious freedom as “the right to believe as you see fit, not to impose your beliefs on or discriminate against others.” Government must not “play favorites” or accommodate the religious beliefs of people, companies, colleges or religious agencies if that impinges on the rights of liberals.
Beginning in 2011, that sort of outlook led to the saga of the Little Sisters of the Poor, an order of Catholic nuns who care for low-income seniors. The Sisters sought exemption from the Obamacare mandate to provide coverage of birth control and what they regard as abortifacients because that would make them violate church teaching. Mr. Biden, a Catholic, intends to enforce the mandate upon religious groups without exemptions.
Americans United is particularly upset by the choice of Amy Coney Barrett to succeed Ruth Bader Ginsburg on the U.S. Supreme Court, saying that hostile toward the “true” liberty. It thinks Barrett will “allow claims of religious freedom to be misused to harm women, LGBTQ people, religious minorities and the non-religious,” and thereby cloak “a conservative political agenda in the disguise of religious freedom.”
Most assume Barrett will be sympathetic toward religious freedom claims from individuals and groups. That was evident November 25 when she joined four other conservative justices to temporarily block enforcement of certain attendance limits on religious gatherings that New York State imposed due to the COVID pandemic, pending later hearings on the substance. When Ginsburg was on the court, she formed a 5-4 majority that went the opposite way on parallel cases.
The advocacy from Democrats and liberals conflicts with the conservative stance typified by Attorney General William Barr’s much-discussed October 11 speech on religious liberty at the University of Notre Dame Law School. (Text: https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-remarks-law-school-and-de-nicola-center-ethics).
Barr said the change since the 1993 act demonstrates the way secular forces now employ legislation and court cases as a “weapon” against religious and moral traditionalists. “We have seen the law used aggressively to force religious people and entities to subscribe to practices and policies that are antithetical to their faith,” he said. “Irreligion and secular values are being forced on people of faith,” compelling them to violate their conscience.
Can such a basic disagreement be bridged? The Brookings report comments that the two competing bills proposed in Congress last year lay out “strikingly different” approaches, but it hopes lawmakers can find “at least some common ground on these issues.” A tall order.
UPDATE: This December 23 Pro Publica article pursues related issues: