Turn on any cable news show and you’re likely to hear conservatives on the religious right claiming that secularists aim to erode or end religious liberty in America. It’s as serious a charge as it is a false one. In fact, it's a red herring.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..." The First Amendment to the Constitution begins with this foundational defense of individual conscience against the edicts of religious institutions backed by the coercive power of government. We may have different views of how we can protect religious liberty for the sake of everyone, but until recently there has been a rough consensus that religious liberty centers primarily on maintaining the rights of individuals.
In the Hobby Lobby v. Burwell U.S. Supreme Court case, the owners of a private, for-profit, national craft store chain successfully won an exemption from a preventive health care provision within the Affordable Care Act, which requires that employee's health insurance include coverage for birth control methods such as morning-after pills and intrauterine devices. The Green family, which owns Hobby Lobby, considers such birth control methods—medical science notwithstanding—to be abortifacients, and rejects the requirement to provide their employees with compliant health insurance as a violation of their company's religious freedom. The high court’s ruling was the first time in U.S. history a for-profit corporation was recognized as having religious rights under the First Amendment.
The religious right's effort is not limited, however, to the courts or even to abortion and contraceptives. Earlier this year, conservative legislators in Arizona passed SB 1062, the “Religious Freedom Restoration Act,” which would have allowed private business owners to refuse services to LGBTQ customers by claiming a “sincerely held religious belief.” The Act was vetoed by Governor Jan Brewer; just one month later, however, the Mississippi legislature passed a nearly identical bill that was quickly signed into law by Governor Phil Bryant. Similar legislative proposals are advancing in several other states.
These attacks on religious liberty involve conservative academics, pundits, politicians, and a variety of Religious Right organizations. The Becket Fund for Religious Liberty has provided legal counsel for the Hobby Lobby case, and Alliance Defending Freedom (ADF, formerly Alliance Defense Fund) is one of the architects of the bills in Arizona, Mississippi, and other states. ADF attempts to soft-peddle their radical redefinition of religious freedom as a defense of the conservative religious beliefs of business owners, who are legally barred from discriminating against LGBTQ or other customers to whom they might object—or what ADF calls “coercing [them] to violate their sincerely held beliefs.” The Religious Right’s campaign to redefine religious liberty was conceived and designed as a back door to limit the reach of marriage equality, employment non-discrimination laws, and Roe v. Wade. However, their Orwellian inversion of the meaning of constitutionally protected religious freedom more broadly threatens the rights of individuals and communities. Once codified, exemptions to laws can beget more exemptions.
If corporations enjoy exemptions from federal laws in the name of religious freedom, the rest of us may be compelled to cede our personal liberty to the views and whims of our employers—forcing us to choose between our livelihoods and our consciences.
If a business owner happens to believe God demands women always be subservient to men, could the company legally be allowed to deny women managerial positions (or refuse to hire women at all)? Could private education institutions reliant on public money again claim religious freedom to defend racial segregation (as did Bob Jones University)? Could business owners claim “sincerely held religious beliefs” to deny service or jobs to people of color, Jews, Christians, or atheists? Jehovah’s Witnesses don’t believe in whole-blood products; even if you don't happen to share that faith, could your boss nevertheless deny you coverage for surgeries? And so on. If a business enterprise’s “religious belief” can be used to justify discrimination in one thing, why not other things?
The Becket Fund, ADF, and many other leaders of the religious right portray themselves as avatars of religious liberty and faithful adherents to the original intentions of the Framers. But despite their rhetoric, the battle for the meaning of religious liberty is not between Christianity and secularism but between pluralism and authoritarianism. However strong their convictions may be, the Religious Right leaders’ campaign is less about religious liberty than winning the government-backed right to impose their religious beliefs on others. The Framers called that tyranny.
Ramos is the executive director, and Clarkson is senior fellow, at Political Research Associates, which published the 2013 report, Redefining Religious Liberty: The Covert Campaign Against Civil Rights.