Dr. Mark David Hall, Herbert Hoover Distinguished Professor of Politics at George Fox University, discussed the historic accommodations given to liberty of conscience in America in light of the current crisis resulting from the legal requirement in many jurisdictions for businesses offering services pertaining to marriage ceremonies to provide goods and services for same-sex weddings against their consciences in a presentation at the Family Research Council on July 15.
Hall began by noting that the last few years have seen the legal requirement to violate one’s conscience resulting from civil rights protections granted to homosexuals emerge into mainstream American consciousness. In “high profile cases,” people have been forced to choose between their Christian faith and conscience on the one hand and their livelihood on the other, threatened with “ruinous fines” unless they provide goods and services that contribute to homosexual activity. The recent Supreme Court decision imposing same-sex marriage on the nation has the potential to cause the number of such cases to “increase exponentially.” Hall referred in particular to the case of Barronnelle Stutzman in Washington state, fined $135,000 in a still ongoing case for declining to provide flowers for a homosexual wedding to a customer of longstanding, and after having served and hired homosexuals in her business. Hall said these cases raise “important questions,” e.g., “what is the proper scope of religious liberty, how compelling is the state’s interest in forcing business owners to participate in these sorts of ceremonies … would the state still be able to meet its objectives if religious business owners were granted narrow exemptions … should states adopt broad Religious Freedom Restoration Acts?”
The crisis in liberty of conscience, which today is focused on homosexuality, goes back into the twentieth century and involves the need to find legal accommodations for conscience convictions from “neutral, generally applicable laws.” America in fact has a “long history of providing accommodations to neutral, generally applicable laws.” Simply rehearsing the examples would “overwhelm” any listener with the evidence of America’s historic respect for liberty of conscience by writing conscience protections into law, Hall said. He then reviewed some of the highlights of this part of American history.
Conscientious objection from military service is one of the oldest and most noticeable accommodations. It was granted to Quakers in colonial times. The kind of exemptions historically varied from paying a substitute to serve in the military to exemptions for persons in pacifist denominations, to individual exemptions for those expressing a religious objection to military service. Historically there was broad public support for liberty of conscience, supported both by Democrats and Republicans, and more than 2,000 accommodations written into law by the early 1990s. Giving the examples of human sacrifice of babies or the objection of Christian Science parents to providing medical care for their children (which was in fact accommodated in some state laws, resulting in hundreds of deaths), Hall said that “it is obvious that not every act based on religious conviction can be accommodated, but most can.” He noted, however, that military service is an extremely high priority for the nation (really threatening the country’s existence if not provided for), and yet conscientious objection to military service has long been accommodated. Originally, states provided accommodation to pacifist objectors, but beginning in the twentieth century, it was the national government. An early (1917) legal challenge to religious accommodation as violating the establishment clause of the Constitution was dismissed by the Supreme Court “out of hand;” protecting religious minorities was held to be within Congress’ power. Although conscientious objection to military service has only been a statutory, not a constitutional, right, Hall noted that the version of the Second Amendment which was originally proposed included a clause giving a military exemption to religious pacifists.
Another matter historically considered very important was the taking of oaths. They were believed “essential” to bind public officials to their duties, and anyone making a commitment to the government to his or her responsibilities. Yet here as well, accommodation was made to religious consciences, with the alternative of affirmation offered to Quakers and others who objected to the taking of oaths. Originally offered in England in the 1690s after the Glorious Revolution, every American state came to offer the alternative of affirmation, and the alternative of affirmation was written into the U.S. Constitution in three different oaths that it prescribes (including the Presidential oath).
Education is another area of conscientious objection. Public education became progressively more secular in the course of the twentieth century, yet attendance also became compulsory as American society developed. The conflict between religious and secular word views became especially acute with the Amish, who “reject the modern world.” The Supreme Court ruled that an exemption from secular education was required by the First Amendment’s guarantee of free exercise of religion, thus opening the door to homeschooling. Harming no one, homeschooling has produced children that generally outperform public school students, Hall said. Finally, Hall noted the “Jehovah’s Witness” cases in the 1940s, when Jehovah’s Witness children refused to salute the American flag during World War II. Here the Supreme Court reversed itself, initially ruling that there need be no religious exemption, then ruling that the First Amendment required it.
Other religious accommodations include the legal use of sacramental wine during national prohibition (1920-1933), and the use of the drug peyote in the religious ceremonies of the Native American Church. The latter accommodation, allowed by many states, was disallowed as a constitutional right by the U.S. Supreme Court in 1990, thus moving Congress to enact the Religious Freedom Restoration Act of 1993, which restored the standard of requiring the least restrictive means of burdening religious liberty at a statutory, rather than a constitutional level. But regardless of this change, very commonly, at both the state and national levels, American citizens, legislators, and courts have agreed with Senator Frank Church of Idaho, author of the Church Amendment protecting the conscience rights of medical professionals in objecting to participation in abortion, that “nothing is more fundamental to our national birthright than freedom of religion.”
Despite recent intense opposition to conscience exemptions, Dr. Hall noted that “there are few real life examples” where liberty of conscience for medical professionals has caused serious problems. He maintained that contemporary critics are too easily dismissing the long history of making legal accommodation for liberty of conscience in America with hypothetical examples to claim that the exemptions impede the functioning of society. But history shows that the American government has and “should go out of its way” to protect religious liberty and liberty of conscience, Hall said.
In the current controversy over civil rights laws protecting homosexuals, Hall noted that about half of the states have such laws, and even very liberal states have done well at protecting religious organizations from involvement with homosexual behavior. Those left out are private businesses, which are not in fact well protected by state Religious Freedom Restoration Acts, since protecting homosexuals from injured feelings is held to be a compelling state interest. Yet almost no one would refuse service to homosexuals based on their identity, and only a very decided minority of merchants decline goods and services contributing to homosexual behavior, with such services readily obtainable from other merchants. He observed as well that many persons regard marriage ceremonies as inherently religious, and thus conscientious objectors are being required to participate in a religious ceremony. Hall also noted that the high profile cases of religious merchants faced with ruinous fines due to sexual orientation and gender identity (SOGI) laws, and the intense opposition against religious exemptions, is impeding the progress of these laws in more conservative states. “Narrow, carefully crafted exemptions” are the answer, Hall claimed, to resolving the conflict between civil rights laws protecting homosexuals and religious liberty.