The American tradition of religious freedom has long included exemptions from laws that impose a burden on the exercise of faith. The Volstead Act implementing Prohibition, for example, made an exception for the sacramental use of alcohol. In recent years, though, liberals have started to turn away from that tradition – and come up with ever more inventive ways to justify doing so.
Democratic-appointed judges are voting to deny religious exemptions on spurious grounds. The ACLU says it no longer supports the Religious Freedom Restoration Act, a law that passed nearly by acclamation in 1993. It is still enthusiastic about protecting Sikhs in prison who don’t want to have their beards shaved. But it doesn’t want Christian conservatives to use the law to avoid paying for their employees’ contraception.
Most liberals don’t want to think of themselves as hostile to religious liberty, or to say that they’re only against it when it’s invoked by conservatives. So they’re telling themselves a story in which conservatives are abusing the religious-liberty tradition to make new and dangerous demands. Liberals, on this view, are “standing by conscience while recognizing its new role in culture-war conflicts,” to quote an essay by Reva Siegel and Douglas Nejaime in The American Prospect, a liberal magazine. But this story doesn’t withstand modest scrutiny.
Siegel and Nejaime provide an impressively elaborate rationalization for the new liberal approach. They raise several supposed distinctions between the good old religious-freedom claims and the bad new ones. The old ones, they say, were made for “minority religions” with “unconventional beliefs,” not for “opponents of abortion.” They were not “entangled in culture-war politics.”
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It is not at all clear, though, why opposition to contraception shouldn’t count as an unconventional belief in contemporary America. Nor is it clear why religious freedom becomes less valuable when it involves divisive issues; the reverse would seem to be true.
The authors suggest that the old religious-freedom claims involved issues that legislators hadn’t considered when they passed the laws from which exemptions were sought. When Congress passed anti-drug laws, for example, it wasn’t thinking about Native American religious adherents who use peyote in their ceremonies. They needed special protection, and they got it from the Religious Freedom Restoration Act.
But some of the new religious-freedom controversies follow the same pattern. Congress didn’t thoroughly debate the consequences of the contraceptive mandate for religious groups when it passed the Affordable Care Act. The law didn’t explicitly include a contraceptive mandate at all. (It provided the Department of Health and Human Services with regulatory authority that it used to impose the mandate.)
The Equal Employment Opportunity Commission has recently decided that the Civil Rights Act of 1964, unbeknownst to everyone involved in passing it, forbids discrimination based on sexual orientation. If the courts come to agree with that judgment, we'll have a new ban without Congress ever debating how to handle religious groups’ concerns.
The root problem, for Siegel and Nejaime, is that the new religious-freedom claims are often based on arguments about complicity with what some religious adherents consider immoral. Catholic nuns seek to avoid facilitating contraception; some Christian bakers don’t want to make wedding cakes for same-sex couples because they think it would amount to blessing their union. These complicity-based claims inflict harms on other parties: employees who want contraceptive coverage, gay couples trying to get married.
But religious exemptions often entail costs to other parties. Letting churches discriminate on the basis of religion will cause some people to miss out on jobs. Letting priests refuse to testify about what they’ve heard in the confessional could cause serious harms to some people. Allowing conscientious objectors out of participating in wars – something we’ve historically done precisely because those objectors don’t want to be complicit in activity they consider immoral – means that other people have to make sacrifices that are potentially even bigger than having to pay for contraception out of pocket, or to find a baker a few blocks away.
Liberals have played an honorable part in the historical tradition of religious freedom, and it would be best if they kept doing so. If they want to toss that freedom aside, though, they should be honest with themselves and the rest of us, and just admit that they don’t value it as much as they value bossing conservative Christians around.
Ramesh Ponnuru, a Bloomberg View columnist, is a senior editor for National Review, where he has covered national politics for 18 years, and a visiting fellow at the American Enterprise Institute.