In March the U.S. Supreme Court will hear arguments in two important cases that could establish new parameters for what religious liberty means.
The two cases, which the high court has consolidated into one, concern access to birth control. In itself that’s a highly compelling issue. But just below the surface lurks a host of questions that will define what type of nation we’re going to be: one where rights are extended to all and everyone must play by the same rules or one where religious people, by mere dint of their faith, receive special treatment and a free pass from complying with certain laws and regulations.
The legal cases were brought by two for-profit companies—Hobby Lobby and Conestoga Wood Corporation—that don’t want to comply with the federal regulations that require most secular employers to include no-cost birth control coverage in employee healthcare plans.
Both firms are owned by conservative Protestants who say they’re offended by certain types of birth control, which they insist is really abortion in disguise. They’re wrong about that scientifically and medically, but the court won’t likely look at that issue. Instead, the core question before the justices is this: Does religious belief exempt a person from following an otherwise generally applicable law?
These cases were sparked by the Obama administration’s attempt to apply the “contraceptive mandate” of the Affordable Care Act. The administration argues, with ample justification, that the use of birth control is so common in the United States that it makes no sense to erect barriers to its access. Under the mandate, no one is forced to use birth control, of course. Secular employers must merely tolerate its presence in the healthcare plans their employees receive. The decision of whether to use it rests entirely with the employee.
Religious entities (houses of worship, ministries, and so forth) are wholly exempt from the mandate; they do not have to comply at all. Religiously-affiliated groups (church-run hospitals, colleges, and so on) are not required to provide birth control directly, although they must allow it to be given to those employees who want it through a third-party provider.
Even the latter accommodation is being fought, and many observers believe that question too will end up before the Supreme Court.
But right now, the issue facing the justices concerns for-profit, secular entities. Remember, the firms objecting to the mandate have nothing to do with religion. Some are factories and manufacturing companies. Hobby Lobby is a nationwide chain of craft stores. Conestoga Wood manufactures materials used in home building and renovation.
In each case, these corporations happen to be owned by people whose religion forbids the use of certain forms of birth control. Those owners object, and they would like to subject all of their employees to the dictates of their faith.
That’s bad enough. But when we go a little deeper, we quickly see that these cases could establish a much broader—and more dangerous—precedent.
Across the country, religious fundamentalists are demanding the right to ignore virtually any laws they dislike. For example, they want the right to actively discriminate against LGBTQ Americans.
U.S. law has long required secular businesses to refrain from rank forms of discrimination on the basis of race, religion, and gender. Some states and localities extend these protections to gays and lesbians.
There was a time when hotels could refuse rooms to Jews and restaurants would not serve African Americans. Federal and state laws have banned these noxious forms of discrimination.
Fundamentalists want to bring it back—in a new form. Under their legal theory, the owner of a hotel should be permitted to refuse service to same-sex couples. A baker should be allowed to refuse to make a cake for a same-sex wedding, and a photographer must be granted the right not to photograph such an event. A secular employer could even refuse to hire LGBTQ people if they offend his faith—all on the basis of “religious freedom.”
Some people have asked what’s the point in compelling shop owners to serve people they don’t want to serve. The point is that discrimination against people, especially on the basis of things they cannot change, is an injustice that we have worked hard to eradicate. Legally, businesses are “public accommodations,” which means they must serve the public. If you don’t want to serve all of the public, don’t open a business.
Where will these religiously-based demands for special treatment end? What other medications will be denied to people because of the boss’s theology?
Scientologists have a well-known animus toward psychiatry and psychiatric drugs. Yet many people rely on these medications to combat depression, attention-deficit disorder, bipolar issues, and many other serious health matters. People shouldn’t be denied these medications because their bosses say they have a religious objection to providing access to them.
The fact is, people make all kinds of wild claims and often attempt to use religious liberty as an excuse to ignore regulations and laws that are beneficial to the larger society.
For a long time, a sensible standard has been in place: religious accommodations that are truly individualistic and that don’t affect anyone else will be granted. An employee who wants to wear certain religious garb or a prisoner who doesn’t want to eat pork can often be accommodated. In the cases before the Supreme Court, the employers are demanding much more. They seek a definition of religious liberty that allows them to make decisions not just for themselves but for others, too. This makes a mockery of a great principle.
In the lawsuits pending before the Supreme Court, Hobby Lobby and Conestoga Wood are citing a 1993 federal law called the Religious Freedom Restoration Act in their defense. This law does indeed require the federal government to meet additional hurdles before it infringes religious freedom.
The act, however, was meant to apply to individuals, not corporations. Furthermore, it has never been interpreted as a tool to allow one person to control or make decisions for others.
Religious freedom (which, I might note, includes the right to reject all faiths) is a vital principle of American life. It is being twisted by people determined to convert it from a shield to protect themselves into a sword they can use to lash out at others.
To preserve interfaith peace and protect our growing diversity, the Supreme Court must reject this crabbed definition of religious liberty.