A Hopeful but Tenuous Nod Toward Restoring Religious Freedom

on January 24, 2018

The survival in court of Mississippi’s conscience protection act, passed in 2016, and protecting the consciences of Mississippians against having to accommodate same-sex relationships and transgenderism, together with what appeared to be a reasonably favorable hearing of the Masterpiece Cakeshop case at the U.S. Supreme Court on December 5, may signal a cautious turn toward religious freedom in this country. Although Americans for generations have regarded religious freedom as foundational to America’s identity as a nation, even regarding it as the first, or most important of freedoms, both this country and the entire Western world are now clearly in a new era, in which religious freedom is attacked as the enemy of progress.

As this writer has noted before, the conflict between religious freedom and the new sexual ethic of individual consent has been predicted since the 1990s and the struggle over Colorado Amendment 2. Then the U.S. Supreme Court curtly dismissed the religious freedom justification for prohibiting local ordnances making sexual orientation a protected civil rights category. But it was only in the second Obama administration that the reality of the conflict was forced on the nation, with a plethora of lawsuits and near universal court judgments denying religious objections to accommodating homosexual behavior.

This being the first real national engagement of forces, social conservatives did not fare well. Efforts to pass state laws which would protect merchants and professionals who engage the public from being required to take actions that violate religious precepts were defeated in the relatively conservative states of Arizona, Indiana, Arkansas and Georgia by corporate threats of economic warfare. The responsibility for this must, however, lie with the Republican governors and legislatures of those states that gave in under intense pressure.

The result is that we are now living in a different country with respect to religious freedom. It is one in which the term “religious freedom” is now stigmatized with quotation marks, immediately evokes for liberals and even relatively disinterested people the word “discrimination,” and is no longer a clear point of doctrine for Republican politicians, as it is (in an adversary position) for the Democratic Party. Any effort to protect the consciences of religious persons against having to accommodate sexual behavior that they understand to be immoral has to struggle against the presumption that the religious conscience is wrong, however much this presumption violates religious freedom.

But Mississippi has been different. Gov. Phil Bryant signed Missippi’s Religious Freedom Restoration Act (RFRA) in early 2014, shortly after Gov. Jan Brewer vetoed Arizona’s RFRA amendment giving protection against private action requiring conscience violation. Like the federal RFRA, Mississippi’s 2014 RFRA uses the “Sherbert test,” which requires the state to show that a requirement to violate religious liberty, even resulting from a generally applicable law, must be in pursuit of a “compelling governmental interest,” and applied in the “least restrictive” way.

While such protection for religious liberty might easily seem to protect religious businessmen and professionals from having to violate their consciences (and is fiercely opposed by the cultural left), it really gives a general principle which does not guarantee any particular outcome in court. Preventing “discrimination” will readily be identified as a “compelling state interest,” with no least restrictive way to apply the state’s requirements, since denial of any particular service or merchandise results in giving the offense anti-discrimination law is intended to prevent. It is worth noting that both the oft-cited Piggy Park (1968) and Bob Jones (1983) decisions, which pertained to denying religious justifications for racial discrimination, occurred during the Sherbert era (1963-1990), when the U.S. Supreme Court held the Sherbert test to be a constitutional standard.

This writer has often claimed that while there may be religious justifications for racial discrimination, there cannot reasonably be Christian (or Jewish, or Muslim) justifications, and so the free exercise of religion poses no real threat to racial integration in this country. Unhappily, both the U.S. Supreme Court and lower courts do seem to set aside conscience objections if they consider the motivation behind the objection to be oppressive. Therefore legislators in Mississippi appear to have looked to the Obergefell v. Hodges (2015) decision, imposing same-sex marriage on the nation, to find a justification acceptable to the U.S. Supreme Court for declining service that is complicit with homosexual or transgender behavior. While the pre-Obergefell Mississippi RFRA gave conscience a general religious protection, never mentioning any LGBT issues (although the Left was opposed because it was motivated by fear of complicity in homosexual behavior), the 2016 law, Protecting Freedom of Conscience from Government Discrimination Act, passed on April 4, 2016, explicitly cites belief in traditional marriage as the exclusive venue for sexual relations as the conscience commitment being protected. The 2016 law thus really appeals to the honorable character of this conscience commitment, recognized by the U.S. Supreme Court in the Obergefell decision.

Mississippi’s conscience law was passed with strong majority support from all sectors of society in the state. Gov. Bryant then signed the bill on April 4, 2016, only to have portions of it declared unconstitutional by a federal judge. From there, it was upheld in its entirety by the Fifth Circuit Court on June 16, 2017, which ruling the U.S. Supreme Court ultimately let stand on Jan. 8, 2018.

The 2016 conscience protection act is a wonderfully specific law. It defines traditional marriage correctly, and protects conscience convictions that reserve sexual relations to traditional marriage. Recognizing the appearance of gender ideology, or transgenderism, in contemporary society, it also defines sex correctly as immutable male and female anatomical and genetic characteristics. As this writer contended more than a year ago, religious freedom cannot reasonably involve only protection of beliefs, but must involve actions. People should not be required to take action that violates their conscience convictions, regardless of how badly anyone is pained. The explicit recognition of belief in traditional marriage as honorable in the Obergefell decision gives the 2016 conscience protection act in Mississippi a strong basis to survive in court.

Specifically, the new conscience protection law protects any religious organization against adverse government action because of its declining to solemnize marriage, or provide wedding services or facilities based on its belief in exclusive traditional marriage, makes decisions about adoptive or foster care, or makes employment decisions based on such belief. It protects persons against adverse action based on belief in traditional marriage with respect to adoption and foster care, counseling, fertility services, wedding services (including cakes, floral arrangements, etc.), sex-specific standards they set for grooming and restrooms, and speech outside the work environment. State employees may recuse themselves from having to provide state services that violate their beliefs in support of traditional marriage, with the state charged with making arrangements for the alternative provision of such services. State benefits and exemptions related to taxation, accreditation, certification and licensing may not be denied based on belief in traditional marriage. Very importantly, adverse action against belief in traditional marriage is prohibited whether by the state or by private parties. Finally, the act claims to “favor of a broad protection of free exercise of religious beliefs and moral convictions,” thus appealing to the nation’s historic commitment to religious freedom as the “first freedom.”

In today’s environment, religious freedom itself is attacked as subsidiary to almost every other consideration. But as Thomas C. Berg, law professor at the University St. Thomas School of Law, noted in an article in The Federalist in September 2016, America’s “constitutional text and tradition” argue that religious freedom should have priority. While classical statements of religious freedom from the Enlightenment and American founding say that it should not harm others, Berg says that the kind of harm referred to was immediate and perhaps especially bodily harm. The rise of the regulatory state in recent generations has resulted in far less direct harms (e.g., declining to pay for or be complicit in the provision of abortion inducing drugs). It might be added that conscientious objection from military service poses a far greater harm to the nation – as it negatively impacts its ability to defend itself – than does conscientious objection from health insurance (or to mimic a current practice of the news media, “health” insurance, since abortifacients contribute to the destruction of life, not its preservation). Berg proposes tests of the immediacy and severity of harms to third parties, and on the side of believers, the proximity to the core of religious freedom of the proposed restriction on it. Very aptly, Berg points out:

“If religious freedom confers no right to harm others, and the government can define anything it wishes as a harm, then the regulatory state will severely constrict religious freedom.”

Traditional marriage is certainly core to Christianity and other religions, while the true “harm” advanced against the religious conscience is the hurt feelings of those told that goods and services cannot be provided because the provider would be sinning himself or herself to provide them.

As this writer argued in an earlier article, hurt feelings are an unworthy consideration. There is no greater harm than being required to take an action believed sinful or evil. This is true no matter the eventual legislative or judicial result, but for the first time in a number of years, religious freedom not to be complicit in the sexual revolution has a reasonable chance of finally prevailing.

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