Last November marked the twentieth anniversary of the Religious Freedom Restoration Act. At an event hosted by the Newseum and the Baptist Joint Committee for Religious Liberty, RFRA’s champions shared stories of how the statute came into being and the long odds it had to overcome. Though no one was resting on his or her laurels, there was a general sense of a job well-done.
And then Douglas Laycock, one of the primary architects of RFRA, began to speak. He warned that millions of Americans view religious liberty as their enemy because they resent religion’s interference in their sex lives. Even though RFRA is a “super statute,” it will offer religious believers little protection if the nation turns against religious liberty. Statutes can be repealed. Courts can empty them of their meaning.
Laycock’s warning may seem overwrought, but consider just a few news items. In New Mexico, multiple organs of state government have said that a Christian photographer violated the law by refusing to photograph a same-sex wedding. In Colorado, a Christian baker was sued because he refused to bake a cake for a same-sex wedding, and in Washington State a florist was sued for the same reason. Christian nurses in New Jersey were required to assist with abortions or risk losing their jobs. And of course, there is the nationwide HHS contraception mandate.
How did we get here? People commonly point to the gay rights movement. It is true that the clash between sexual license and religious liberty is most often seen in the context of gay rights. But step back for a moment. In a 2012 survey of 120,000 American adults, Gallup found that only 3.4 percent identified as LGBT. How could such a small minority so dramatically change prevailing opinion?
The answer may lie in Laycock’s statement: Americans resent religion’s perceived interference in their sex lives. The president of the Barna Group, an evangelical market research organization, recently observed that “Young people’s most common complaint . . . is that churches are too focused on sexual issues.” The consequences of same-sex marriage may pose the gravest threat to religious liberty, but the cultural conditions and assumptions that make that threat possible are rooted in heterosexual behavior.
This is a curious attitude, given that no religion in America has the legal ability to force anyone, adherent or not, to follow its teachings regarding sexual morality or anything else. An evangelical Christian can impregnate his girlfriend and keep his head firmly attached to his body, unlike the situation faced by Claudio in Measure for Measure. A Catholic can buy a package of condoms at the local drugstore. The clerk won’t ask to check his religious identification before ringing up the purchase. And women of any religious persuasion can obtain an abortion in all fifty states.
Why, then, does it seem that a growing number of Americans view religious liberty with suspicion, if not outright hostility? The problem is that many Americans are offended by the existence of an opposing view. The fact that someone, somewhere, dares to voice disapproval of their sexual behavior is, it now seems, offensive in and of itself. Studied non-judgmentalism is one of the hallmarks of contemporary American culture, with departures viewed as gauche at least or, more commonly, as an illegitimate attack on the sacrosanct individual. If you doubt this, please try telling a group of largely secular thirty-somethings that you believe cohabitation is wrong and see what response you receive.
Sexual License as a Fundamental Right
The legal revolution began with Griswold v. Connecticut, which, in a sharp departure from a decades-long consensus, held that a Connecticut statute prohibiting the use of contraceptives infringed on the constitutional privacy rights of married couples.
Yet a mere seven years later, the Court held in Eisenstadt v. Baird that limiting the sale of contraceptives to married persons violated the Equal Protection Clause. Justice Brennan abandoned the previous rationale of marriage’s special status, writing that “the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals.”
My argument is not that contraception should be banned. The state once exercised a role in upholding public morality, but that ability has been eroded by the aforementioned Supreme Court cases. Those cases were the first triumphs of an ideological movement that privileges sexual permissiveness and non-judgmentalism.
This enforced non-judgmentalism reached its zenith in the abortion cases Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey, in which the right to be free of the natural consequences of sexual activity trumped another human’s right to live. The law is a teacher, and Griswold and Eisenstadt impart the lesson that “no one has the right to judge your sexual choices.”
Together, this line of cases teaches not only that one has the right to sexual intimacy, but that one has the right to consequence-free sexual intimacy.
Once heterosexuals with relatively traditional sexual preferences embraced the idea that they had the right to consequence-free sexual intimacy, it was a short step to extending the right to those with less-common sexual preferences. The reasoning and cultural attitudes underpinning Lawrence v. Texas follow naturally from Griswold, Eisenstadt, and Casey. If consenting adults have the right to engage in sexual intimacy without fear of judgment or consequences, there is no reason to limit the right to heterosexual intimacy.
Likewise, the recent federal district court decision in Brown v. Buhman (the Sister Wives case) that recognizes the right to engage in religiously motivated polygamy is rooted in the same cases and ideology. The court points out that the state doesn’t punish a man who abandons his legal wife, moves in with another woman, and calls the second woman his wife. So why should the state punish a man who holds himself out as married to both women at once? As long as a person doesn’t try to contract multiple legal marriages, it is his constitutional right to live with multiple women and present them as his wives.
Hostility Between Cultural Norms and Religious Teachings
It is no surprise, then, that people whose belief systems are a muddle of Casey’s sweet-mystery-of-life passage and Modern Family bridle at the strict sexual morality of the monotheistic religions. This is exacerbated by traditional Christianity’s refusal either to conform to the spirit of the age or to go away and be quiet. The erosion of the state’s role in upholding public morality both foreshadowed and led to the cultural rejection of religion’s right to judge the morality or immorality of certain acts.
Evangelicals still loudly proclaim that one should “wait until marriage,” even if that command is largely honored in the breach. The Catholic Church has not relaxed its prohibition on contraception, even if many of its adherents ignore its teaching or even loudly oppose it. Both Evangelicals and Catholics (and those members of mainline churches who hold to traditionalist norms) grapple with the culture on multiple fronts—praying outside abortion clinics, attending the March for Life, objecting to FDA approval of abortifacients, decrying pornography, etc. In short, they have remained a thorn in the side of an ever-more-permissive culture for over forty years. (Orthodox Christianity, Orthodox Judaism, and Islam also adhere to strict moral norms regarding sexual behavior, but attract less attention because of their status as minority religions.)
This cultural attitude has led to religious liberty’s current embattled position. Catholic bishops teach that contraception is a sin? Break them. The charities they oversee must, in some way, be forced to provide free contraception and abortifacients to employees. Contraception has been available for over forty years, but now, suddenly, we must force business owners and religious orders to provide drugs and devices they believe to be sinful.
The proponents of the sexual revolution successfully persuaded the state to support their views. Now they seek to use the power of the state to force private persons to violate their religious beliefs and conform to the new morality.
To illustrate the degree of the incursion on religious conscience, religious liberty advocates often compare the contraception mandate to requiring all Jewish deli owners to serve pork sandwiches or requiring a Muslim business owner to pick up the tab for his employee’s heart-healthy red wine. This is a valid comparison, but perhaps the average American thinks, “Oh, the government would never do that.” And they’re right; probably the government never would. Why? Because food is considered too unimportant to be bothered with, whereas consequence-free sex has become an American totem.
The contraceptive mandate is a strike by the partisans of the sexual revolution against the partisans of traditional sexual morality. As Douglas Laycock noted at the RFRA conference, for forty years Americans had a settlement regarding contraception: Americans had the right to purchase it, but they did not have the right to make others pay for it. Suddenly, this compromise has ended: all health plans, even those paid for by employers religiously opposed to certain or all contraceptives and abortifacients, must provide these drugs. Suggestions that the government simply provide the contraceptives itself, or pursue some other way of providing contraceptives at no cost to the beneficiaries, fell on deaf ears. Failure to comply with the mandate would be financially ruinous for employers. Now the mandate is mired in litigation, with the Supreme Court due to hear two cases in the spring.
That a large component of the opposition to religious liberty is motivated by animus toward traditional moral norms cannot be ignored. And, as Douglas Laycock warned, this may well be the stiffest challenge religious believers face.
Carissa Mulder is a lawyer in Washington, DC.