By Rick Plasterer
Robust protections for religious freedom are needed in contemporary society, both from legislatures and from courts, to prevent religious freedom from being subordinated to other interests offended by religious belief and practice. This conclusion seems inescapable from presentations by legal commentators at a second panel given to the United States Civil Rights Commission on March 22.
As noted in an earlier article covering presentations to the Commission by legal service organizations, the problem has become acute because the civil rights ideal of “inclusivism” and egalitarianism not uncommonly contradicts religious tenets which call for exclusivism, in particular for correct doctrine and separation from sin. Since obedience to God as the believer understands his commands cannot be compromised according to many religious faiths, believers are faced with the choice of violating their consciences or taking the legal penalty for not doing so.
Scholars on the second panel included both advocates of legal protection for religious conscience and those opposed. For persons unfamiliar with the issue or who believe religious freedom undeniably is a fundamental American liberty, the presentations of scholars opposing legal protection for liberty of conscience should give a better idea of the nature of the conflict.
Professor Leslie C. Griffin of University of Los Vegas School of Law argued against the Supreme Court’s Hosanna Tabor decision, which confirmed that the “ministerial exception,” which gives religious organizations the right to choose their clergy and religious instructors free from government interference, is a constitutional right, guaranteed by the First Amendment. “Some interpretations of religious freedom undermine equality,” she said, putting “antidiscrimination principle and religious freedom on a collision course.” She warned that proposed legislation to protect liberty of conscience “will permit individuals and even corporations to discriminate in the name of religion.” Like others who share her viewpoint, she relied on the distinction the Supreme Court has drawn between belief and action in constitutional law, with only religious belief constitutionally protected. She believes the solution to the conflict is that “religious conduct must yield to the law, and its protection of all citizens.” Religious liberty should have no protection if it will “harm third parties,” as prevailing ideas of civil rights would understand harm. She applauded the California Supreme Court’s denial of Catholic Charities’ right to avoid covering contraceptives. She bemoaned that the Religious Freedom Restoration Act of 1993 is having a measure of success in federal courts in protecting employers from the HHS contraceptive/abortifacient mandate, saying that law intended to protect “civil liberties,” will now potentially “harm third parties.” In general she argued for a legal regime in which a secular morality informed by civil rights and quality of life overrule religious morality of divine origin.
Professor Marci Hamilton of the Benjamin N. Cardozo School of Law similarly deplored the ministerial exception, and the complete freedom it gives religious organizations from the antidiscrimination regime, as “lawlessness.” She proposed that religious organizations be required to tell their employees whether they are “ministerial” employees or not, and referred to clerical sexual abuse as a reason why religious organizations should be subject to government regulation. It is unclear, however, why this is relevant, since sexual abuse by anyone could be prosecuted at any time prior to the civil rights era. Seemingly sharing a similarly narrow view of religious liberty, Associate Professor Marc DeGirolami of St. John’s University School of Law said that “constitutional adjudication” protecting religious liberty “should proceed as narrowly and incrementally as possible.” Social conflict is inevitable, he said, and the government should avoid “a hasty desire to resolve conflict” through binding law. While not so clearly calling for it to be illegal, neither did he advocate legal protection for non-liberal religious values such as “piety,” and “obedience,” which are not generally shared in society.
Substantial protection for liberty of conscience against those offended by it was advocated by other scholars offering presentations. Associate Professor Michael Hefland of Pepperdine University School of Law said that to a considerable extent “religious institutions should be afforded the constitutional right to direct their own internal affairs free from government interference.” He noted that courts have held that religious freedom for religious organizations rests on the “implied consent of their membership.” In support of constitutional protection for religious conduct as well as belief, he noted that in 1952 the Supreme Court asserted “freedom for religious organizations, and independence from secular control or manipulation,” a doctrine he said the court returned to in the 2012 Hosanna Tabor decision, with its claim that the Constitution “gives special solicitude to the rights of religious organizations.” “Institutions must be protected from government attempts to hijack their internal decision making process,” he said, proposing that greater protection for religious liberty should be given to organizations that “openly and obviously incorporate religion into their day to day operation.” It must be kept in mind, however, in view of the adversary viewpoint of the other presenters, that these organizations’ rights are rights against the claims of employees or clientele that they are offended or harmed by the religious belief or practice of the organizations in question. Claims against institutional religious liberty would not seem reasonable if the general public understood, as it once more clearly did, that religious organizations are voluntary and are free to conduct their affairs by their own religious precepts.
Two final presenters discussed the need to protect religious individuals and organizations from the new secularist morality being imposed by the state. Professor Alan Brownstein of the University of California Davis Law School focused on the most intense aspect of the issue, the conflict between religious liberty and homosexuality, saying he supported both religious liberty and rights for homosexuals. “For devoutly religious persons, religion is a core aspect of who they are”, Brownstein said, while “sexual orientation is a fixed and core aspect of a gay or lesbian person’s identity.” What is needed in the conflict, he said, is “the right to be wrong in the other group’s eyes.” He proposed that rather using racial discrimination or the conscience protections connected with abortion as a model, protections for religious liberty given in other situations should control law and policy with respect to homosexuality. Since adherents of exclusivist religions are not legally required to affirm one another’s faith, this should, at least in principle, give a high degree of protection to religious liberty against homosexual claims of offended feelings.
Edward Whelan, President of the Ethics and Public Policy Center focused on the antireligious motivation of the legal attack on religious liberty. “Sweeping application of nondiscrimination principles poses an increasing threat to civil liberties,” he said. At the heart of the Obama Administration’s HHS mandate is its belief that “moral propositions of traditional religious belief are irrational and bigoted,” and that religious institutions can only be tolerated insofar as they serve the interests of the state. Legally, he claimed that the mandate violates the Religious Freedom Restoration Act’s requirement of using the least restrictive means of burdening religious liberty (since the government could simply supply contraceptives/aborifacients if it deemed them necessary), violates First Amendment “free exercise” rights, and displays an “illiberal contempt for the religious views of those whom it seeks to coerce.” With respect to same-sex marriage, aggressive application of antidiscrimination doctrine will result in religious objectors facing such penalties as “exclusion from government facilities, loss of licenses or accreditation, disqualification from government grants and contracts, loss of tax exemptions, and loss of educational and employment opportunities.” The obvious result of this would be to make religious believers who object to the state determined morality an underclass in society, disadvantaged and despised in the public world of business and the professions.
What the presenters’ testimony above all made clear was the moral nature of the conflict, above any legal or constitutional considerations. Religious liberty has explicit and clear primacy in the constitution; “civil rights” is a construct of the second half of the twentieth century. The moral conflict is about the claim of those who feel offended by religious doctrine or practice that their sense of injury should be the supreme consideration in law. It really heralds the end of religious freedom and liberty of conscience, with a state determined morality binding on everyone.
While this antireligious regime may or may not be more fully implemented than it has been, it is the duty of Christians to be faithful to God’s commands regardless of the penalty, and to continue to do so no matter how firmly the new secularist morality becomes entrenched in law and society. After that, we may point out to the wider world that a truly moral society does not require people to behave in ways they regard as immoral because other people are offended.