Not long ago, when religious liberty cases reached the courts, the people seeking protection for their beliefs were mostly from small faith groups and their lawyers were liberals.
The contested issues were narrow: a demand that plain, black Amish buggies carry bright safety triangles, for instance, or bans on hallucinogenic tea in an American Indian ritual. The resolutions of these cases were as narrowly drawn as the complaints themselves.
But after years of culture wars, and amid recent gains for gay rights, the politics of religious liberty has been transformed. Now exemptions are being sought by the largest faith groups in the country, the burning issues are marriage and sex, and the term religious freedom has taken on a new, politicized meaning.
“Things have changed dramatically in the last 20 years,” said Michael Moreland, vice dean and professor at Villanova University Law School. “Back then, the Catholic Church wasn’t very often in the position of needing exemptions.”
The new terms of the debate were on display in the recent Hobby Lobby case over birth control coverage for workers.
The plaintiff was a multibillion-dollar arts and crafts chain owned by conservative Christians. And the religious leaders championing the Hobby Lobby case were from the Roman Catholic Church and Southern Baptist Convention – the two largest denominations in the country.
The justices ruled that Hobby Lobby and other closely held private businesses with religious objections could opt out of providing the free contraceptive coverage required by the Affordable Care Act. Many opponents vowed they would fight to repeal the law at the center of the case: the Religious Freedom Restoration Act.
“We’ve gone from a moment a quarter century ago where it’s small religious minorities who want to do their thing in private to very large religious minorities – Catholics and evangelicals and Mormons – who feel they’re being oppressed,” said Mark Silk, of Trinity College in Hartford, Conn. “Now we’re talking about potentially significant numbers of women who do not get contraceptive coverage, or significant numbers of men and women who are gay and lesbian.”
Smaller-scale cases continue to arise, over issues such as wearing a Muslim veil in a driver’s license photo. But the loudest cries over religious freedom are coming from the conservative leaders of major religious groups, especially when equal rights for gays and lesbians are at stake. In many state legislatures, bills on recognizing same-sex marriage have been held up over disagreements about the scope of the religious opt-out.
Cathleen Kaveny, a Boston College professor of law and theology, said many Americans perceive demands for exemptions as an attempt by “losers in the culture war to hold onto a position” that broader society has rejected.
“If you lose a political battle, do you get a second bite at the apple – that my religious freedom has been violated?” Kaveny said.
Compromises that resolved many such disputes in the past seem impossible to reach now. On gay rights especially, groups see the other side as advocating something immoral and both sides see a moral imperative to win. It is common for conservative pastors to vow they would go to jail rather than comply with a law they consider contrary to their beliefs. And gay rights’ supporters have come to see religious liberty complaints as cover for bigotry.
Religious exemptions have always had critics, but until recently, Americans leaned toward accommodating faith groups, even when the beliefs in question were considered unpopular, such as religious objections to wartime military service.
In 1990, when this tradition of support appeared in jeopardy, the outrage spanned the political and theological spectrum. That year, the U.S. Supreme Court ruling in Employment Division v. Smith made it tougher to obtain some religious liberty protections. In response, a wide-ranging coalition, from People for the American Way to the Southern Baptist Convention, won passage of the 1993 Religious Freedom Restoration Act. Under the law, the government would have a much more difficult time defending and keeping any laws that infringe on religious freedom.
When Congress passed the measure nearly unanimously, and President Clinton signed it, the statute was expected to mostly help minority faiths find space for themselves amid the Christian majority.
Two decades later, the quest for religious liberty has been turned on its head. Upcoming fights will revolve around how nondiscrimination laws apply to the hundreds of thousands of faith-affiliated social service agencies, colleges and charities that take government money while also trying to maintain their religious identity.
“The heart of this issue is the question of discrimination and the way in which anti-discrimination legislation bumps up against … religious liberty,” Silk said. “It set up a deep tension between two strong values in a society: the nondiscrimination and the religious liberty value. Anybody who pretends that that’s a simple thing to resolve – they’re kidding themselves.”