Life’s complexities demand accommodation of religious practice in policymaking

Written by William C. Duncan

December 8, 2022

When the federal government tried to require Catholic nuns to offer contraceptive coverage to their employees, a wide range of religious groups joined a 2014 brief supporting the nuns, including the U.S. Conference of Catholic Bishops and the National Association of Evangelicals. In 2022, these organizations were on different sides of a different religious freedom debate. The bishops sent a letter to U.S. senators urging them to oppose the Respect for Marriage Act, arguing that its religious freedom provisions were inadequate, while the National Association of Evangelicals wrote two senators to thank them for the same religious freedom provisions.

The debate over the Respect for Marriage Act has highlighted the fact that there are different concerns about laws impacting religious freedom and approaches to addressing these concerns – even among those who agree in general about the importance of religious freedom.

One reason for the differences in concerns and approach is that people of faith and religious organizations experience religious freedom conflicts in many different ways.

A helpful way to describe this is by using language from the federal Religious Freedom Restoration Act. That law applies when government imposes a “substantial burden” on “a person’s exercise of religion.”

The law refers to an “exercise” of religion, echoing the First Amendment. This is key because sometimes religious freedom is described as a “right to worship” – which is not wrong, but it is incomplete and can be a little misleading.

The word “worship” suggests worship services or personal worship – gatherings with others of similar beliefs to engage in religious practices like communion or prayer, or engaging in these practices in private or with family. This is an absolutely core element of religious freedom. It is likely that everyone, however they feel about the religious practices of others, agrees that this type of religious exercise should be protected.

It is also the least likely type of religious exercise to trigger conflicts with government policies. In the United States, at least, a law banning private prayer or going to church seems unthinkable. This does not mean that these practices couldn’t be burdened by the government in unusual circumstances. The COVID pandemic led to measures that were not targeted against church attendance but had the effect of limiting congregation sizes. Thus, the Supreme Court ruled that these kinds of limitations would be invalid if they singled out religious gatherings for more limitations than similar secular gatherings.

A similar category of burdens on religious exercise are those that constrain the ability of churches to teach their beliefs and carry out the operations associated with that teaching. These types of burdens could include barriers to building mosques, synagogues or churches. Laws against proselyting or those that punish certain types of expression would fit in this category. These are extremely rare in the United States.

Religious diversity can lead to less obvious burdens. Some churches have clergy who are well recognized as representatives of their denomination, while others have lay clergy or parachurch ministries not tied to a specific denomination. So, a teacher at a religious school could be simultaneously a religious official inculcating moral teaching and an employee performing secular functions that could be impacted by government regulations such as employment laws.

Another potential burden is on individuals who are not acting in any formal or even informal religious capacity, but who feel obligated to carry out what to others may seem like entirely secular pursuits consistent with their religious beliefs. The topic of burdens on religious faith may not initially bring to mind someone operating a for-profit business or attending a university, but a person of faith may feel that what she does as she goes about these normal activities of life can have religious import.

The religious exercise of individuals could be burdened by uniform policies, or insurance mandates, or antidiscrimination laws, or even environmental regulations. Americans may be inclined to think of religion as institutional, as something tied to churches. But many of the major world religions do not have formal hierarchical structures.

As if all this were not complicated enough, many of these categories overlap. A religious organization might teach the importance of caring for those in need and also provide social services – even operating in formal partnership with a government agency. An individual may be both a religious leader and a licensed professional.

The premise behind the Religious Freedom Restoration Act (RFRA) was that it could be difficult to anticipate all the potential ways in which government policies might burden religious exercise. This quick survey of some of the general categories of these burdens demonstrates why this is an issue. RFRA created a way that courts could assess the burdens and determine whether a critical government interest (like protecting human life or ensuring public safety) justified a specific burden.

That policy is a good backstop, but it’s not a perfect solution. The cost of bringing lawsuits to challenge burdens on religious exercise is a burden in itself, particularly for the adherents of minority religions.

This means that governments must be proactive in considering how otherwise neutral laws could impact people of faith and religious organizations, and they need to include appropriate accommodations of religious practice in their policymaking. This is not always simple, since accommodations can affect others who don’t share – or may even strenuously oppose – the religious practices being accommodated. This is best illustrated by the well-known recent examples of conflicts caused by the application of antidiscrimination measures to businesses, social service providers, and individuals who have faith commitments that may be at odds with legal requirements.

So, the process of accommodations won’t always be simple, and it may often require negotiation and toleration. The multiplicity of different religious beliefs and practices and the multiplicity of different secular convictions and experiences make all this complicated. The good news is that when accommodation through policymaking is done well, a peaceful pluralistic community can flourish.

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