Commentary: The shifting sands of religious liberty
In the United States, Muslim women trying to maintain modesty should get female-only hours at the public pool, right? What about Wicca troops who want a chaplain of their own, even if there are only a few thousand of them in the military? And Catholic business owners who believe that contraception is killing should they have to provide it to employees, now that the health-care law requires that workers get it?
The debate about whether religious freedom is being threatened seems to have hit an apex, with the Catholic Church launching its biggest campaign in a generation against the contraception mandate. Even the presidential campaign is mixing it up; Mitt Romney's latest ad asks, "When religious freedom is threatened, who do you want to stand with?"
But the real question is: What does religious freedom look like? As America gets more religiously diverse, the concept is becoming harder to define.
The bishops poured resources into their "Fortnight for Freedom" effort, which warned that Americans' liberty to practice religion is at risk. It featured overflow mega-Masses with special prayers for the protection of religious liberty. Lawsuits are pitting the president against some of the most prominent Catholic institutions in the nation.
What do we mean when we talk about the freedom to practice religion in America? Who gets to define it? And when should religious liberty yield to other values?
Muslim cabdrivers are refusing to carry alcohol in their vehicles. Some Christian bed-and-breakfast owners won't host honeymooning same-sex couples. And before America got a crash course in their beliefs after this past week's tragic shooting in Wisconsin, turban-wearing Sikhs have been fighting extra screening at airports.
America has no road map out of this conflict. No vibrant democracy in history has had our level of religious pluralism or piety. We're on our own to figure out how to protect it. And the only thing people in the booming field of religious-liberty law seem to agree on is that Americans can expect more fighting.
"As diversity is increasing, as secularists and other agendas move forward, we'll see that traditional base call out for more and more accommodations to respect their beliefs," said Hannah Smith, a senior counsel with the Becket Fund, one of the leading religious-liberty law firms.
It's been an angry summer, particularly for religious conservatives.
Catholic bishops have focused on the Obama administration's new health-care law and its mandate that insurance companies provide contraceptives to subscribers at no cost. And on same-sex marriage, the once-neutral chicken sandwich has become a new rallying cry for orthodoxy.
When the bishops and their religious-conservative allies say their place in society is under assault, they have a point. Traditional Judeo-Christian beliefs about gender, sex, reproduction and marriage were for centuries treated as the norm, but consensus has since crumbled, not only in secular culture but in religious communities as well. Those beliefs and the right to practice them in your life by what you wear, what you say at work, whom you hire and what kind of health care you have are colliding with other, newly accepted beliefs and rights.
There are new state laws requiring adoption agencies and foster-care providers to consider same-sex parents. Two years ago, the Supreme Court ruled that a Christian law school group in California couldn't ban gay students. Missouri voters this past week passed a sweeping "right to pray" ballot measure, which guarantees that residents can express their religious beliefs in public places, including students who want to opt out of class activities that violate their beliefs. The measure's critics have said that religious freedom is already protected and that the law will create endless litigation, but supporters say it's needed to protect views such as creationism and opposition to gay equality.
Another major driver of tension has been, ironically, a generation of anti-discrimination measures. There are dozens of new protected classes, which can lead to conflict. If it's illegal in Texas to discriminate in employment against someone who is pregnant, can a Baptist school fire an unmarried teacher because she violated the faith? Can a married Catholic school teacher in Indiana claim disability discrimination for infertility after she was fired for using in vitro fertilization, also against church teaching?
Major court decisions point in all different directions. The Supreme Court in 1990 ruled that Oregon could deny unemployment benefits to an American Indian fired for using peyote, even though his faith includes it in prayer ceremonies. And this year the high court said that churches are generally exempt from employee-discrimination claims if a worker's position has any religious component. The case centered on a parochial school teacher who was fired after she threatened to take an employment dispute to court, rather than resolve it within the community, as doctrine requires.
Perhaps nothing has created more tension over religious freedom than something that was created to boost it: much-expanded partnerships between the government and faith-based groups.
Court decisions in the 1990s made it easier for public money to flow to religious institutions specifically, to religious schools in the form of vouchers and to overtly sectarian groups that provide social services such as anti-addiction programs or housing assistance.
In an era of bigger government, faith-based groups argue that they need to be part of the social services being provided with no major strings attached. That may mean a Christian group being able to hang a cross on the wall at a government-funded drug-addiction treatment office. Or not being forced to hire people of another religion at a government-funded disaster aid organization.
If the government gives a Catholic group a grant and exempts it from some federal requirements, such as giving women access to contraception, is that a win for religion? Or is it a loss, since some might think that the government preferred one faith group over another?
The decision by the Utah-based Church of Jesus Christ of Latter-day Saints to ban polygamy in 1890, allowing the Beehive State to join the United States, is seen today as a victory for mainstream values over an unpopular religious practice. But last year, when a ballot measure was proposed in California to ban male circumcision, it was clobbered as a violation of religious liberty.
John Whitehead has as good a bird's eye view on this as anyone. When he launched a career as a religious-freedom lawyer in the late 1970s, he and the American Civil Liberties Union were practically the only people in the business. A conservative evangelical, Whitehead had a portfolio largely consisting of defending anti-abortion protesters tossed off sidewalks.
Today, his Rutherford Institute in Charlottesville, Va., is considered the model for half a dozen religious-freedom firms and business is jumping.
Whitehead has made a living off the subject but has come to this conclusion: "You can get 10 different groups in the room, and they will disagree about what religious liberty is."