Religious Liberty at a Crossroads?


US religious liberty law is not perfect, but it still deserves our support. Religious exemptions witness to the value of religion as a transcendent good. And nothing in the Supreme Court cases requesting religious liberty exemptions for Muslim citizens undermines that effort.

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The Supreme Court finished its last term with an important statement about religious liberty, and its new term promises more of the same. On June 30, 2014 the Court decided Hobby Lobby, which provided that Christian-owned firm with an exemption from the Obama Administration’s “mandate” to offer employees free contraceptives and abortifacient drugs. The Justices have agreed to decide a case this term about religious freedom in the workplace. And last week, the Court heard oral arguments in another religious liberty dispute, this one about an Arkansas prisoner who feels religiously obliged to grow a beard longer than prison rules allowed.

Before this term ends next June, the Court will probably rule on another important question raised by the HHS mandate: do non-profit religious employers (such as the Little Sisters of the Poor, EWTN, and Notre Dame) have to facilitate free contraception and early abortions for their employees? And even though the Court just rejected all the same-sex marriage cases before it, many issues about how believers in conjugal marriage can avoid complicity in the immorality of same-sex “weddings” are percolating up through the court system. The high court will soon have to start addressing them.

It surely appears those who adhere to biblical morality need the protection of religious liberty law more than ever. But many of them are increasingly ambivalent about that law. Even as they seek its legal protection, some good people have begun to wonder about the long-term result of investing in religious liberty.

Is Religious Liberty Dangerous?

These people wonder, for instance, about how to answer the parade of horrible hypotheticals that critics of Hobby Lobby trot out: if conservative Christians can deny certain health care rights to their employees, then what about an employer who opposes blood transfusions on religious grounds? Or a Christian Scientist employer who does not believe in scientific medicine at all? And what about medical marijuana? Does support for religious liberty give a permission slip for all sorts of hedonistic practices—ritual drug use, objectionable sexual conduct, and the like?

Some in the Judeo-Christian tradition worry, too, about Islam and expansive notions of religious liberty. Does support for Hobby Lobby and EWTN imply support for Muslim employers who object to childhood immunizations or who would fund health insurance only on the condition that men and women be completely segregated while in hospital?

The two cases now under Supreme Court consideration contribute to this worry, for they both involve Muslim complainants. In one, an aspiring saleswoman alleged that Abercrombie & Fitch refused to make any allowance in its employee “Look Policy”—think: preppy casual—for her religious style of dress. The plaintiff is Samantha Elauf, and she wears the Muslim hijab, or headscarf. The Arkansas prisoner is Gregory Holt, also known as Abdul Maalik Muhammed. He maintains that Islam requires that he maintain a beard at least a half-inch long. Prison regulations permit only a quarter-inch, lest contraband or weapons be concealable under the stubble.

Some American Christians and Jews have begun to wonder whether, in the context of the radical Islamist challenge to our security and the challenge Islam poses to Christians living in some countries, we should distinguish these cases from those involving Christians and Jews. These same people generally cherish the Judeo-Christian traditions of the United States. They ask: Does today’s religious liberty law undermine those traditions by promiscuously encouraging “pluralism” and “diversity” and all sorts of odd “lifestyle choices”?

Honoring—But Not Granting—All Religious Claims

These worries are far from groundless, and our law of religious liberty is far from perfect. Nonetheless, America’s religious liberty law—warts and all—still deserves our support. It is basically sound, it does far more good than harm, and we do need it now more than ever.

Our law rightly honors Muslims’ claims as it would similar claims by Christians and Jews. The relevant laws make no distinction among religions: a sincere religious believer of any faith should be free to follow the dictates of religious conscience, unless doing so collides with some countervailing important interest. When it comes to being left alone to follow one’s conscience in religious matters without being forced by others to act contrary to it, we are indeed all entitled to the same consideration. The right to immunity from coercion in things religious is everyone’s natural right.

This does not mean that the law should make no distinctions in cases where people claim the protection of religious liberty. When I say “honor,” I do not mean “grant.”

Under the federal Religious Freedom Restoration Act (RFRA), government may substantially burden the exercise of religion only when doing so is required to achieve a compelling government interest that is being pursued in the least restrictive way possible. Not every claim for religious liberty will be granted, because sometimes government has to act to protect peace and the common good in a way that will burden someone’s sincere practice of his faith.

Those whose religion requires immoral or anti-social actions may rightly be constrained. Christians’ refusal to be accomplices to abortions is morally required, and their witness should never been inhibited. Thus, Catholic employers such as the Little Sisters should be exempted from the HHS mandate. But conscientious terrorism should be conscientiously suppressed, and even the peaceful practice of polygamy should receive no legal sanction.

The reason for the difference is not that Catholicism is a religion and that Islam is not. Nor is the reason that Muslims and their basic rights are inferior to Christians and theirs. Neither of those things is true. The difference is that some religious practices may conflict with the least restrictive way of achieving a compelling government interest.

Religious Liberty is Part of the United States’ Heritage

Exempting some religious believers from generally applicable laws is part of what it means for America to be a Judeo-Christian society. Our forefathers’ great faith in religious liberty stemmed from their Christian faith in a God who rejected force and violence in favor of reason and conviction when dealing with humankind. America’s experiment in religious liberty has been, all things considered, a resounding success. The Christian character of the American people has made this possible. No Muslim civilization has produced such a free society. But that does not give Americans a reason to restrict Muslims’ freedom to practice their faith, so long as the common good is respected.

Exemptions for objecting believers from civic duties are as old as the American republic. The Constitution itself protects those scrupulous of swearing an oath, providing (in Article VI, cl. 3) that government officers “shall be bound by oath or affirmation, to support the Constitution” [my emphasis]. Relief for those conscientiously opposed to bearing arms was commonplace at the founding for members of “peace churches” like the Quakers. Exemption for Saturday Sabbatarians from conflicting civic obligations was common too.

Right now, countless laws protect believers from enforcement of laws that are fine in themselves and that should be generally applied to everyone else. The most important of these was affirmed unanimously by the Supreme Court in a case involving a Lutheran grade school called Hosanna-Tabor. The so-called “ministerial exemption” affirmed there permits religious entities to control the staffing of all jobs that have to do with handing on the faith. Sex discrimination laws cannot be applied to, for example, the recruitment, retention, and dismissal of Catholic priests.

Exempting sincere religious persons from some general obligations serves the common good. Besides keeping open a pathway to full loyalty and participation in our common life—and thus encouraging civic commitment and patriotic loyalty—for persons who might otherwise be alienated and even hostile, these exemptions witness to the value of religion as a transcendent good, and everyone’s fundamental moral duty to be the King’s good servant, but God’s first.

Religious vs. Moral Objections

American religious liberty law isn’t perfect. It is, for one thing, too lax at the front gate. It is not lax because it protects in principle all religions, but because, in many instances, it protects people of no religion at all.

Judges and legislators have unfortunately collapsed the distinction between religious belief and all conscientious belief. Thus, in most instances, relief from generally binding laws is made available to anyone with a deeply felt moral objection. Sometimes this broad protection for conscience is warranted. But sometimes it is not. Sometimes only those persons who cannot comply with a law due to their relationship to a transcendent source of meaning and value should be exempt from it. And making exemptions available to all serious-minded comers contributes to the view that religious liberty is antinomianism with a sacred glow.

In any event, collapsing the distinction between religious and moral objections obscures, and practically weakens, the true foundation for religious liberty, which is religion. This foundation is—we must insist against so many in our legal culture—a rationally supportable account of reality. Religion is, one might say, a zone of truth, or at least comprised partly by truth claims about the way the universe and our place in it are constituted. Our law of religious liberty has been degraded by those who regard religion as irrational, as utterly subjective, as a matter of each one’s mood or mental projections or wishful thinking. In other words, religion is not about personal idiosyncrasies, and our law should not suppose otherwise.

Two Cheers for Religious Liberty

One further consideration supports not quite ambivalence, but two cheers for religious liberty. We can be certain that any account of religion that tends to marginalize it as a purely personal preoccupation, as a matter of subjective belief if not as non-rational idiosyncrasy, is sure to lead to a dramatic diminution of religious liberty. And it should: unless religion pertains to the truth about divine things and to human persons’ transcendent obligations, then it is hard to see why any society should value religious liberty as we do.

The current secularism of our public life and law threatens the ability of those who adhere to biblical morality to lead lives in accord with the truth. This threat is most keenly aimed at our institutional ministries and, after that, at the professions and other work spaces that are undergoing an alarming ideological purification. These large-caliber threats promise a bounded freedom of subjective inclination, but require conformity to the emergent norms of fair play in our pluralistic world.

Still, nothing in the Supreme Court cases requesting religious liberty exemptions for Muslim citizens undermines our effort here. Rather, the liberationist, anti-marriage, post-familial agenda is the great threat. Christians, Jews, and other traditional religious believers should support laws that acknowledge the great contribution that religion makes to our culture.

Gerard V. Bradley is Professor of Law at Notre Dame Law School.

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