There is a cognitive dissonance in current religious liberty discourse. On the one hand, there are vulnerable groups emerging as strong rights holders in the culture, including LGBTQ, women, and children. On the other hand, there are the religious believers who cannot or will not fit this new social order into their worldview and, therefore, assert rights against it. In fact, the religious liberty "rights" asserted are not constitutional, but rather statutory. (1) It is critically important that our public debate be built on this fact.
Rights for the vulnerable are under attack by some religious actors who have sought to turn religious liberty into a weapon of exclusion, control, and harm. "Cognitive dissonance" is the "psychological conflict resulting from incongruous beliefs and attitudes held simultaneously," (2) and is often experienced as discomfort, which can lead the person to choose various routes away from the discomfort, such as denial or action. (3) As politically powerful religious actors experience unease in a culture they no longer control, there has been a multiplication of demands for extreme religious liberty in the United States, (4) including by law professors as well as national advocacy organizations like the Becket Fund and the Alliance Defending Freedom, (5) who routinely trivialize the costs extreme religious liberty externalizes onto others as their discourse treats all religious liberty as constitutionally required. This is a time of religious triumphalism. The vulnerable are at risk from some religious who insist that their liberty does not end with their own practices but rather expands to include the culture around them. As a matter of public policy, it is necessary to choose between the rights of the vulnerable and the ever-increasing demands--not for liberty, but rather autonomy divorced from responsibility for harm. This is a threat to our peaceful coexistence. For that reason, the United States Commission on Civil Rights' report on religious liberty is correctly titled, "Peaceful Coexistence: Reconciling Nondiscrimination Principles and Civil Liberties." (6) The challenge is to draw the boundary line that squares civil rights for the vulnerable with religious liberty for conduct, and in my view the Report is the best analysis to date, albeit with inadequate attention to the plight of children at risk in religious communities of sex abuse, medical neglect, and educational neglect, as I discussed in my testimony before the Commission. (7)
The recent Supreme Court cases with impact on the religious liberty debate have centered on two of the vulnerable populations: LGBTQ and women. The former was empowered by the Court while the latter were not. According to the Supreme Court, LGBTQ have a right to live lives of love and devotion to family on par with heterosexual couples. (8) The response from religious actors has been a doubling down on demands to exclude LGBTQ from any arena in which they are present including employment and the marketplace of goods and services. (9) Although they do not acknowledge the divided culture they seek, their approach is different in degree but not kind to the former religious liberty of South African apartheid, (10) which was an expression of the Dutch Reformed Church.
Some religious actors have long been fighting the rights of women to obtain contraception and abortion, (11) but the fight has progressed from tactics that are intended to deter abortions to those that empower an employer to deny health care coverage that includes reproductive healthcare based on the employer's religious beliefs, even in a for-profit setting. (12) Now, religious actors aggressively seek two ways to further erode women's rights to personal reproductive care through the institution of sweeping prerogatives on the part of employers, a right to refuse to provide care to women, (13) including in pharmacies, (14) and a right to discriminate against women by permitting an employer to impose a benefits plan that reflects his beliefs without regard to the female employee's health needs or her own faith. (15) These two fronts have preoccupied the religious triumphalists and the larger culture.
The Report does not adequately acknowledge the other vulnerable population to religious triumphalism: children. The seriatim sexual abuse of children within religious organizations has spanned the spectrum: ultra-Orthodox and Orthodox Jews, (16) the Roman Catholic Church, (17) the Fundamentalist Church of Jesus Christ of Latter-Day Saints ("FLDS"), (18) the Children of God, (19) and Tony Alamo's cult, (20) to name a few. Specifically, the FLDS forces girls into prophet-mandated polygamous marriages with much older men and abandons the boys who do not fully conform to the group, a move necessary in part to keep the numbers favorable to the men seeking multiple wives. (21) These organizations typically revert to theology and church autonomy rationales to excuse and explain the widespread sexual abuse and trivialization of children. (22) In addition, numerous religious organizations have medically neglected and even let children die or be permanently disabled for religious reasons, including Christian Scientists, the Followers of Christ, and many others. (23)
Twenty years ago, Professor Douglas Laycock and I squared off at the Supreme Court over the constitutionality of the Religious Freedom Restoration Act, or RFRA, (24) the statute passed by Congress to augment the First Amendment. The Court held that RFRA was unconstitutional as applied to the states, (25) but it also made clear that RFRA is only a statutory standard, not one that is constitutionally mandated. (26) This is the north star for religious liberty debates. Religious liberty advocates frequently like to slip in an insinuation that their "right" to overcome another person's rights is constitutionally compelled. (27) That is illegitimate. The "rights" of the owners of Hobby Lobby were only in a statute, RFRA, and they overcame in effect the Title VII statutory rights of female employees to not be discriminated against based on gender or faith. Those who insist on a "sacred right" not to do business with gay couples, not to include contraception in their healthcare plans, and not to be subject to the employment nondiscrimination laws need statutes to achieve their goals, because the First Amendment does not allow believers to impose their beliefs on others. They have nothing but a statute in their hands. That statute, unlike the Constitution, does not trump the civil rights asserted by the vulnerable groups in harm's way. Therefore, it is essential to distinguish the First Amendment's constitutional mandate from the religious liberty statutes' rules.
RFRA VS. THE FIRST AMENDMENT
Since 1990, some religious entities and their defenders have demanded near-absolute rights of accommodation, for example, the right never to do business with a same-sex couple based on religious belief (28) or the right to raise children without interference from the state even when the child's life is at stake. (29) The advocates' internal premise is that religiously motivated conduct is virtually unassailable. When the First Amendment did not deliver the strong rights they sought, they pursued statutes like RFRA at the federal and state levels under the assumption that religion can do no harm.
When President William Jefferson Clinton signed RFRA, there was a rosy patina of unity between religious and civil rights groups, who supported supposedly old-fashioned religious liberty. In his signing remarks, President Clinton said:
We all have a shared desire here to protect perhaps the most precious of all American liberties, religious freedom. Usually the signing of legislation by a President is a ministerial act, often a quiet ending to a turbulent legislative process. Today this event assumes a more majestic quality because of our ability together to affirm the historic role that people of faith have played in the history of this country and the constitutional protections those who profess and express their faith have always demanded and cherished. (30) These same groups had lobbied for the bill as though it was a benign addition to the law and a simple return to prior constitutional case law. (31) There was a predominant presumption, though not entirely unchallenged, (32) that religious believers don't harm others. (33) The religious lobbyists' public relations combined with this false sense of safety led members of Congress to believe that there would be no major change in religious liberty protections if RFRA were passed. (34)
In fact, RFRA is a contortion of prior case law, not a return to prior cases. After it was declared unconstitutional, and Congress took up the issue again, there was a new hidden agenda: a drive by conservative Christians to secure a right to discriminate against unmarried couples, single mothers, and eventually same-sex couples in the housing context. (35) Because of its broad and blind scope, RFRA appeared desirable on its surface but in fact put at risk many vulnerable individuals.
According to a majority of the Supreme Court, before RFRA the "vast majority" of the Supreme Court's First Amendment free exercise cases recognized an absolute right to believe what one chooses but an obligation to abide by neutral, generally applicable laws. (36) But laws targeted negatively at a particular religious entity were to be subjected to more searching judicial scrutiny. (37) In other words, in the United States, faith has not justified avoiding laws that apply to every other person taking the same action. For example, if someone is driving to a religious service and violates the speed limit...