WHEREAS ONCE THE COURTS sought a balance between peoples’ right to freely exercise their faith or philosophy and the right to be free from government-sponsored indoctrination, now judges are abdicating their responsibility to keep government secular. Instead of recognizing that government support of religion violates our Constitution’s First Amendment Establishment Clause, the courts are changing their jurisprudence to assert that any hesitancy to provide government support of religion is some kind of illegal discrimination against religion. That’s opening the doors to taxpayer-funded vouchers for religious schools, public dollars funding proselytization, and government symbols that favor one religious view over others.
Furthermore, when there’s a conflict between religious rights, and other civil and human rights (especially LGBTQ+ rights), the courts are deciding that religious rights matter more. That’s leading to LGBTQ+ folks (and potentially many others) getting denied public accommodation services, like wedding cakes from bakeries and flower deliveries from florists. Combined with other court decisions (like Citizens United), businesses are allowed to deny support for reproductive rights to their employees and treat people differently because of the business owners’ sincerely held religious viewpoints—however bigoted those might be.
The Equality Act was introduced to add protections for LGBTQ+ individuals from discrimination because there are currently no federal laws that explicitly protect them and only twenty-one states have passed bills that affirm the rights of LGBTQ+ individuals. Meanwhile, at least two dozen anti-LGBTQ+ bills were proposed in 2021, many of which target transgender youth. The Equality Act’s protections, overwhelmingly supported by Americans, prompted harsh criticism from the religious right and other conservatives who claim they undermine religious freedoms. But, in reality, it is just an excuse for these groups to complain about their presumed right to discriminate.
Religious groups on the far-right (namely the rising Christian nationalist movement) argue that to affirm the rights of LGBTQ+ individuals is to attack their beliefs and faith-based values. They assert that it is well within their rights, under the First Amendment, to deny service or other goods to those whose identities infringe on their beliefs.
The history of religious rights and equality rights in our country is a long and combative one. Federally, the Supreme Court of the United States addressed the issue multiple times over the past four decades. On a state level, we’ve seen this fight play out through an onslaught of legislation, most often designed to elevate the priority of religious beliefs, such as rejecting certain families for child welfare or allowing employees to opt-out of diversity and inclusion trainings.
The Descent of Religious Liberty
The original intent of religious liberty is to support freedom for all, which is different from the weaponized version that’s skewed toward Christian conservatism that we see today. The Establishment Clause of the First Amendment of the United States Constitution claims that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In theory, the intent is straightforward. Americans are entitled to the right to religious belief and expression, as well as the guarantee that the government won’t favor one religion over the other. Inherent in that right is the freedom from religious imposition from the government of any kind. That means Jews, Muslims, and others who adhere to minority religious beliefs should not feel pressured by the government to accept majority Christian values or practices. And in the same way, nontheists and the nonreligious should not be exposed to government favoritism of theism and religion itself.
Only recently, within the past thirty years or so, has the concept of religious liberty become politicized and largely misused as a defense for prejudice.
Religious freedom, especially with the rise in Christian nationalism, has developed a false sense of absolutism, which is a dangerous and misconceived imposition.
The US Supreme Court has ruled on a slew of notable religious freedom cases in its history, one of which was Lemon v. Kurtzman in 1971, which established the “Lemon Test” to determine when a state or federal law violates the Constitution’s Establishment Clause that forbids the government from establishing religion. Another notable case is Employment Division v. Smith, which established the then-precedent that religiously motivated actions are not necessarily protected from general laws unless those laws unfavorably single out a specific religion. While this precedent was influential, it is important to note that the Smith case, which involved two Native Americans dismissed from their jobs due to ingesting peyote as part of a religious ritual, has implications for religious minorities, groups that are often ignored in the political process.
Following the Smith ruling, President Bill Clinton signed into law the Religious Freedom Restoration Act (RFRA), which essentially overturned the ruling, in an effort to further protect religious liberties against interference from the government. RFRA may have had the right intentions, including protecting religious minorities, but it has too often been misused to carve out special rights for religion where they are not needed or helpful. As we’re seeing in the argument against the Equality Act, RFRA is now often cited as a justification for discrimination against vulnerable populations.
As our social norms change and grow over time, equal rights seem to increasingly clash with this skewed idea of religious liberty. The limitations of any right are hotly debated, but religious freedom, especially with the rise in Christian nationalism, has developed a false sense of absolutism, which is a dangerous and misconceived imposition. The government must ensure that the rights of some, no matter how deeply valued, do not infringe on the rights of others. And although it is important to protect our religious freedoms, it does not mean that religion trumps all other inherent rights or can be allowed to harm others.
While it’s a fair argument to say that the right to practice faith is more important than many other deeply held beliefs, as is evidenced by the persecution of religious minorities, that shouldn’t open the door to special rights that favor the religious and deny the nonreligious. The First Amendment already assures those religious liberties are protected and shouldn’t be unnecessarily restricted by the government, but the limitations that exist are critical. Religious practice should not unduly affect the public good, like meeting in-person without masks during a pandemic; or violating the inherent rights of others, such as LGBTQ+ individuals.
It is hypocrisy for religious groups to claim that bills like the Equality Act are an attack on rights because the championing of their particular religious rights effectively denies the rights of others. Both freedoms should be fought for, but it is plainly wrong to assert that the skewed Christian nationalist definition of religious liberty (not shared by most Christians) is on equal footing with (or even superior to, as they argue) the human rights of all LGBTQ+ Americans.
The Do No Harm Act…could restore the Religious Freedom Restoration Act to it original intent, making sure that everyone has the right to practice their faith but that no one can use their faith to harm others.
It is instructive to look at our northern neighbor, Canada, as an example of the limitations of religious liberty. In a momentous case from 2018, Trinity Western University (TWU) law school, which is part of an evangelical Christian post-secondary institution, was denied accreditation by the Law Society of British Columbia (LSBC). This was based upon TWU’s use of a Community Covenant Agreement, a religiously-based code of conduct that all students and faculty needed to abide by. One aspect of the Covenant is that it prohibited “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
The Supreme Court of Canada ruled in favor of the LSBC, saying that it’s “proportionate and reasonable” to limit religious rights to protect public interest in the administration of legal justice and to ensure open access for LGBTQ+ students.
The Canadian Charter of Rights and Freedom further provides that the “Supreme Court has stated on many occasions that freedom of religion can be limited where it interferes with the fundamental rights of others” and that “freedom of religion is subject to such limitations as are necessary to protect public safety, order, health or morals, and the fundamental rights and freedoms of others.”
While it still leaves plenty of room for interpretation, at least it is clear that religious liberty has limitations when it comes to protecting public safety and other fundamental rights. Meanwhile, the line between advocating for and weaponizing religion in the US is more blurred than ever.
Currently, there are efforts to correct the misinterpretation of RFRA and get us back on track. The Do No Harm Act is currently pending in Congress and directly addresses the problem of religious freedom laws that undermine civil rights protections. It could restore RFRA to its original intent, making sure that everyone has the right to practice their faith but that no one can use their faith to harm others.
“The Do No Harm Act simply posits that RFRA cannot be used to limit access to health care, deny services supported by taxpayer dollars, or undermine the Civil Rights Act or other anti-discrimination protections. Congress must take this critical step to ensure no one can weaponize religious freedom to erode our fundamental civil and legal rights,” said House Education and Labor Committee Chairman Bobby Scott (D-VA), who introduced the bill on behalf of 102 original cosponsors.
Legislation like the Do No Harm Act could help to bridge the gap between our religious liberties and our equality rights, protecting not only the LGBTQ+ community but women, religious minorities, and nontheists as well. For too long in the US, religious liberty has been misused and twisted to undermine the rights of vulnerable populations. All rights and freedoms are important to fight for, but we need to ensure that one isn’t unnecessarily harming another.
Although historically there have been plenty of noteworthy religious organizations and groups that have championed inclusivity, there have recently been some large and well-funded faith-based organizations that are finally turning the tide. In March of this year, Bethany Christian Services announced that they will now be serving LBGTQ+ parents nationwide. As the largest Protestant adoption agency, their acknowledgment of the many different kinds of families in America is something to be celebrated. The hope is that more faith-based agencies will follow suit, which truly aligns with their values of service while combatting the notion that a religious right to discriminate is needed.
At the end of the day, we need to recognize that we all deserve civil and human rights. We should respect each other and hold our government accountable to protect our inherent liberties as citizens. Passing legislation like the Equality Act and the Do No Harm Act can get our country and our ideals of religious liberty back on track. The American experiment is ever-evolving, but it leaves room enough to celebrate our varying religious beliefs and to express the diversity of our humanity.