Using Religious Liberty As A Cudgel

It used to be that budget cuts were the best way to kill a law you hated but lacked the votes to formally repeal. You know, if you can’t beat ’ em, defund ’em.

Times have changed. Now the mantra is: If you can’t beat ’em, out-God ’em.

Don’t like same-sex marriage, contraception, HIV testing or even child labor laws? Never you worry: Just say that a higher power has exempted you, even if your exemption means trampling on other people’s rights.

Texas’s attorney general recently encouraged public officials to deny samesex couples marriage licenses if doing so violated their religious convictions. Other state politicians and companies have also recently tried to cite religious belief as an excuse for refusing to serve gay men and lesbians or to treat them equally under the law, even in states where sexual orientation is a legally protected class.

“Religious liberty” has been invoked to circumvent other laws, too. Last year’s Hobby Lobby ruling allowed companies to exempt themselves from an Obamacare requirement that insurance plans cover birth control, and now congressional Republicans want to expand that exemption. A frightening section of a House appropriations bill would let any employer or insurance company deny health-care coverage for any service that they have a “moral or religious objection” to, even if that service is required by law. This could include mental health screenings and vaccinations, in addition to contraception and abortion.

Yet another House bill would block a D.C. law that protects employees from discrimination based on their reproductive health-care decisions (for example, a boss could not fire a worker for having received in vitro treatments). Killing the law would effectively say that the religious freedom of bosses trumps that of their employees.

In these and other instances, “religious liberty” torchbearers speak as if there is a rich tradition of accommodating any citizen who says that a law burdens her faith, regardless of the societal fallout. But the actual history of religious accommodation looks different.

Yes, since the dawn of the republic, there have been protections for the free exercise of religion, both in our Constitution and in separate statutes, such as those relating to the military draft and religious pacifists. But religious exemptions to laws have been granted only within very prescribed bounds — including the principle that you’re entitled to religious accommodations only if they don’t burden or harm others, or otherwise create havoc in the legal system.

Lawsuits relating to Sabbath observance provide a helpful illustration. One landmark case was 1963’s Sherbert v. Verner, in which a Seventh-day Adventist was fired because she wouldn’t work on Saturdays. The state denied her jobless benefits, saying she was fired for cause. The Supreme Court ruled that disqualifying her from benefits “solely because of her refusal to accept employment in which she would have to work on Saturday contrary to her religious belief, imposes an unconstitutional burden on the free exercise of her religion.” She got her benefits.

But as Columbia Law School professor Jeremy Kessler notes in a new paper, in 1985 the court also struck down a different state law requiring employers to honor whatever holy day their workers chose. Why would the court say that workers’ holy days deserved deference in one case and not another? The government has to allow you to practice whatever religion you choose — and observe whatever holy day you wish — but it will not protect your right to excessively burden other citizens (here, employers and co-workers who must accommodate your schedule) in the name of that religious belief.

The court has used similar logic when considering whether faith can exempt people from civil rights and public accommodations law. Bob Jones University lost its tax-exempt status because it refused to admit students engaged in or advocating interracial relationships. The school had claimed that it should be exempted from anti-discrimination law because its leaders “genuinely believe[d] that the Bible forbids interracial dating and marriage.”

In the case perhaps most directly comparable to the latest arguments made about religious liberty and gay customers, 1968’s Newman v. Piggie Park Enterprises, the Supreme Court affirmed the principle that a barbecue chain could not refuse to serve black people, in violation of an anti-discrimination statute, simply because the owner’s “religious beliefs compel him to oppose any integration of the races whatever.”

Constitutional and statutory protections of religious liberty give Americans the right to worship whomever they choose, however they like, on whatever day they like. But there are wellestablished limits to weaponizing those beliefs against your fellow man.

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