Too Far

03.05.14

How ‘Religious Freedom’ Is Hurting Everyone’s Freedom

The misuse of conscience exemptions is threatening our hard-won plurality. Can’t Americans learn to live together in our increasing diversity?

It’s not clear that Arizona Gov. Jan Brewer looked much beyond the vociferous objections of the business community when she vetoed a law that would have permitted commercial enterprises to scorn gay and lesbian customers on the basis of their owners’ professed religious convictions. It was a prudent veto, endorsed by the state’s Republican establishment—by Sens. John McCain and Jeff Flake, and even by several legislators who suddenly urged Brewer to block the very law they had just voted for. Marriott Hotels joined the opposition—and so did a once and again member of its board named Mitt Romney.

In fact, far more was at stake here than whether Apple would continue to build its new sapphire glass plant in Mesa or whether the next Super Bowl would be played as scheduled in Arizona. The dangers were real: The NFL had shifted the 1993 Super Bowl to the Rose Bowl when the state refused to observe the Martin Luther King Holiday. The reaction of the league, major corporations, and the Arizona Chamber of Commerce was commendable as well as understandable: Their position was good for business, and companies like Apple have been in the forefront of equal treatment for gay and lesbian employees.

But the Arizona bill represented something more—the continuation of an overreaching campaign waged in the name of “religious freedom” that has profound implications for the future and fate of a pluralistic America. As E.J. Dionne observed in Commonweal, “the promiscuous resort to conscience objections” threatens “the ongoing effort to balance robust protections for faith groups on the one hand with the need for laws of general application on the other.”

That’s also exactly what’s happened with the Catholic bishops’ misguided assault on Obamacare. As applied, the new health law lets entities like the New York Archdiocese deny contraceptive coverage to employees, who are all but entirely Catholic. And in a finely tuned compromise, other church-affiliated institutions, such as universities and health providers with many non-Catholic employees, can refuse to pay for such coverage, which will then be provided by insurance companies at their own expense. (Expense is a euphemism here; for insurers, birth control saves more in medical bills that it costs.) The Catholic Hospital Association, which includes 620 hospitals and 1,400 nursing homes, accepted the compromise.  But not the Catholic hierarchy, which has pressed Catholic universities, for example, to challenge the arrangement in federal court.

When Notre Dame took its case to the Seventh Circuit Court of Appeals, its attenuated, often-confusing argument was shredded by Judge Richard Posner, a first-rank conservative legal scholar and a Reagan appointee to the bench. Posner told Notre Dame’s lawyer to “stop fencing with me” as the lawyer refused to answer “yes” or “no” to the judge’s questions. Finally came an answer that exposed the essence of the university’s all-but-sham case: Writing a letter to the federal government saying “no” to contraceptive coverage would make Notre Dame “complicit” in the alternative provision of such services by “a third party.” This is Orwellian—no somehow means yes. Posner called the reasoning “trivial”—and rebuked the university’s counsel for “babbling.”

And this seems to go beyond babbling in a legal sense: “Ninety-eight percent of sexually active American Catholic women practice birth control and 78 percent of Catholics think a ‘good Catholic’ can reject the bishops’ teaching…” Thus the official church—except for those pesky nuns at the Catholic Hospital Association—insists on imposing a doctrine on countless non-Catholic employees that most of its own members disdain, and even though the church-affiliated institutions in question don’t have to finance a scintilla of coverage for birth-control services.

This “promiscuous” invocation of religious freedom would deny equal rights to those with different religious convictions—or none. The Arizona law, and similar statutes proposed in other states, would extend the claim to an extreme that logically could sanction discrimination far beyond the LGBT community.

Ministers, rabbis, and priests should not be required to officiate at a same-sex marriage in violation of their faith. Miscarrying this into the commercial sector is another matter altogether.

Should a hard-line Catholic whose business sells goods and services to the general public be licensed to cite religious conviction in order to turn away a Catholic couple being married outside the church, or one of whose members has been previously married and divorced—both violations of Catholic teaching?

Or should a fundamentalist hotelkeeper be able to refuse a room to an unmarried couple? And what if the couple is mixed-race? A conscience exemption could offer cover for the oldest and most odious form of discrimination in America.

There are believers who could hold, and have insisted, in the words of the Wake Forest Law Review, that women are confined to a “special (wife and mother) sphere… to be ruled by their husbands.” If you profess that, a religious exemption to antidiscrimination laws could conceivably give you the right to do wrong—neither to hire nor to promote women.

In addition, there is the long history of “a religious and biblical case for segregation.” Indeed the trial judge who ruled in favor of Virginia’s antimiscegenation law in 1967 called on God as his validator: The Almighty had put distinct races on different continents because “he did not intend the races to mix.” The Supreme Court reversed the ruling and invalidated the Virginia law—and federal law generally prohibits racial discrimination.

State statutes can’t alter that, even if cloaked in sacerdotal rationalization. But if the Arizona law had been signed, or if its ilk proliferates, there will be predictable calls for the same kind of conscience exemption at the federal level. Wary advocates could settle for just going after gays; but that would run afoul of the Supreme Court’s DOMA decision by singling out a suspect class in the absence of any compelling governmental interest. To have any chance to survive a court challenge, the exemption would have to be general.

Today, there is no federal law prohibiting discrimination against LGBT Americans. The craven John Boehner won’t even let the House of Representatives vote on the Employment Non-Discrimination Act lest he alienate his Tea Party-dominated caucus and jeopardize his nearly powerless sinecure as speaker.

In some states and cities, there are antidiscrimination statutes that apply to gays and lesbians; in many, there are none. And in both, gays and lesbians can become convenient targets for the fury of the religious right. Conscience clauses have their place: Ministers, rabbis, and priests should not be required to officiate at a same-sex marriage in violation of their faith. Miscarrying this into the commercial sector is another matter altogether. A commercial transaction does not confer ethical approbation on a customer. And nondiscrimination is, or should be, a seamless garment—and discrimination a seamless evil. The Wake Forest Law Review concludes: “The best way to think about the claim that gay marriage requires expanded exemptions from existing [state] laws for religious discriminators is in the larger context of both race and gender…”

The great question here is whether we can learn to live together as a country in all our increasing diversity. A clear majority of Americans already favor marriage equality—or soon will. Churches don’t have to. They can teach and preach their doctrines without trying to write them into law—as the Catholic Church has by declining, at least in this country, any attempt to turn the “sin” of divorce into an illegal act. The Catholic bishops can make their contribution now by agreeing to the Obamacare compromise on contraception that does not compromise their lonely, little-observed strictures against birth control. With courage or common sense, or both, governors and state legislatures can adjure measures like the Arizona bill.

Otherwise, we run the risk described by John F. Kennedy in 1960 as he was speaking for both freedom of religion and freedom from the imposition of religious dogma in the public sphere. Referring to the religious hostility aroused by his campaign, he said: “Today I may be the victim, but tomorrow it may be you—until the whole fabric of our harmonious society is ripped apart…”

I’m not sure 1960 was that harmonious—with its bigoted suspicion of Catholics and its entrenched racism. And in 2014, America is polarized, not harmonious. Nonetheless, there is a relevant lesson that reaches across all our history: Change, the fulfillment of our national ideals, has never been quiet or easy; every step forward has spurred resistance and backlash.

Still, Kennedy was essentially right, then and now. Yes, he could have referred more accurately to “our pluralistic society.” That pluralism, respect for one another, a will even against the will of many and settled patterns of prejudice to bring down barriers and open up freedom are the only ways America can work and live up to its defining principles.

Religious freedom is not in peril in this country today; the specter that can imperil our future is a misuse of religion that could menace our freedom.