March 31, 2021
“How does my _____ affect you?” This rhetorical question is meant to clinch an argument. The logic is that a person’s private choices or beliefs, short of pickpocketing or leg-breaking, really impact no one else and should thus be entirely unimpeded by social or legal constraints.
New survey data may lead proponents of religious freedom to ask this question. A Public Religion Research Institute survey indicates that a large proportion of the American people (44%) believe “my rights are being threatened by the claims others are making about their religious liberty.” (Sutherland published more on this recently.) Additionally, Gallup found that, for the first time in its polling, less than 50% of Americans claim membership in a church.
Merely standing on one’s right to do what one wants, even if the desire is to exercise a constitutionally protected right, is unlikely to be the best strategy for regaining a consensus that all are benefited when the rights of others are respected. Perhaps people of faith may be tempted to dismiss the concerns of those who feel threatened, and perhaps those fears are unfounded, but ignoring them is unlikely to secure support for religious freedom.
So, how could religious freedom threaten other people’s rights?
One need not look too far to see the specific concerns motivating the reported fear.
The proposed Equality Act is a good place to start. It would remove the protection of the Religious Freedom Restoration Act from those who seek religious accommodations to new laws that add sexual orientation and gender identity, and likely abortion, as protected categories in federal discrimination laws.
This is an important clue that a major source of fear is that religious exercise will be used to justify a decision that negatively impacts someone in areas protected by federal law – employment, housing, education, and facilities open to the public.
Specific examples are provided in recent court cases.
In the employment context, examples include a concern that an employee could be fired for actions contrary to a religious employer’s code of conduct (i.e., because of an unwed pregnancy or same-sex marriage). Or that a religious employer might not provide health benefits to procedures it considers immoral (i.e., drugs that might have the effect of causing an abortion).
In the housing context, an example could be that a person of faith is unwilling to rent an apartment to a cohabiting couple.
In education, the example would be a student who is expelled for violating the school’s code of conduct related to sexual morality.
It is important to remember, though, that overriding religious exercise also has costs.
For example, parents and children who desire a religious education for their child could be denied that opportunity. Employers who want to act on their faith are at risk of losing their livelihood and, in the case of religious nonprofits, being unable to provide crucial services like care for the elderly poor or vulnerable children.
In the context of housing, the widowed owner of a duplex could lose retirement income if she acts on her religious beliefs by declining to rent to cohabiting couples.
Students who desire to pursue higher education in a private setting where their faith commitments are respected could see their schools lose accreditation, potentially putting their education and career in jeopardy.
Forcing religious groups or people of faith to provide services or products at odds with their religious commitments harms their deepest source of identity and is likely to force at least some out of the marketplace or they could face fines and legal fees. A religious institution’s purpose could be diluted or thwarted by being required to employ individuals whose beliefs and actions are at odds with the institution’s mission.
As supporters of religious freedom, we must accept that no one wants to lose their job or feel embarrassed and disrespected because of their identity. This is equally true for both LGBTQ+ individuals and people of faith.
So, is there a way forward?
It is probably the case that not everyone will be happy with arrangements that could result in harms to someone’s personal interests or religious faith. But historically, Americans have made accommodations that have proved workable.
For instance, existing discrimination laws have exemptions that allow churches and religious groups to favor members of their churches in employment and housing. They do not cover small employers or people who rent out rooms in their own homes. When a religious practice is not common, we even allow exemptions from critical government functions like compulsory military service. Recent Supreme Court decisions have clarified that protecting religious freedom requires allowing religious schools to make decisions about who will promulgate their teachings.
These kinds of rules have been supplemented by a catch-all provision codified in the Religious Freedom Restoration Act: If a government action or policy burdens religious practice, courts can require the government to show it has an overriding reason for making the imposition and that the burden is absolutely necessary to advance that compelling purpose.
This type of approach is not perfect. But it is workable, as the experience of history and – in the context of discrimination – Utah’s recent experience has shown.
A climate of increasing opportunities for conflict, decreases in religious affiliation, and fear that exercising constitutional rights by some may limit the choices of others is not a time to abandon the principle of accommodation. Rather, it is a time to embrace that principle and work together to find creative ways to apply it to defuse distrust and polarization.
Good civics education policy already exists in the law. Let’s look locally to determine how well our schools are teaching what is required of them by law.
The last year has been dominated by concerns about health – not only from the COVID-19 pandemic, but also from the effects on well-being and mental health due to the social isolation the pandemic response has sometimes required.
This latest expression of federalism continues what the data suggest may be a new trend in American governance and civic affairs, illustrating that federalism remains alive and well in America.