Freedom of Religion

2015: The Year in Religious Liberty Controversies

And one to look forward to in 2016

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Three crosses on a hill
Waiting For The Word / Flickr

In summer 2014, passions were already running hot. The Supreme Court was about to hand down a ruling that the federal government could not force a family-run business to pay for free birth control for its workers if the owners had religious objections to doing so. The left would cry out that this amounted to allowing employers to force their beliefs on everyone else. The right would hail the decision as a landmark blow for faith-based freedom. Little did we know then that Burwell v. Hobby Lobby was more prologue than main event.

In 2015, the tension around what is meant by "religious liberty" and where its limits should be drawn came to a head. One after another, controversies boiled over. Ink was spilled. Protests were organized. Arguments were made. Decisions were written. At least one person went to jail, and more than one small business was forced to shut its doors. Below is a chronological roundup of the many times this year when people and institutions clashed on the battlefield of the First Amendment's Establishment Clause.

January

Can a prison inmate grow a beard in accordance with the dictates of his Muslim faith? The state of Arkansas didn't think so, but in January, the Supreme Court unanimously disagreed.

Convict Gregory Houston Holt had sued for the right to maintain half an inch of facial hair despite an Arkansas Department of Corrections policy prohibiting nearly all beards. As Justice Samuel Alito's opinion explained, that rule imposed a substantial burden on prisoners' religious freedom. For it to stand, the state would have needed to show it was "the least restrictive means" of advancing the prison's legitimate interest in maintaining safety and order.

How did the Supreme Court know there were less onerous means available? It proposed one. "Why can't the prison just give the inmate a comb," Alito asked during oral arguments, "and say comb your beard, and if there's anything in there—if there's a SIM card in there [or] a tiny revolver—it'll fall out?"

"I suppose that's a possible alternative," the prison's lawyer had conceded.

March

The federal Religious Freedom Restoration Act (RFRA) has been on the books since 1993, when it was signed into law by Bill Clinton with the support of congressional Democrats and the American Civil Liberties Union. But when Gov. Mike Pence (R–Ind.) enacted a similar piece of legislation at the state level this year, all hell broke loose:

Hillary Clinton tweeted that it was "sad" such a law could "happen today," while Larry King described it as "absurd," "insulting," and "anti-gay." The American Civil Liberties Union condemned it, as did heads of major corporations, including Nike, Apple, Marriott, and Yelp. Some companies threatened to pull their business from Indiana. Performers cancelled tour dates there, and a slew of governors and mayors banned official travel by government employees to the state.

Outrage stemmed from a belief that the law created a new protection for businesses to turn away gay and lesbian customers. When local reporters asked the Christian owners of a small-town pizza parlor if they would be willing to cater a hypothetical same-sex wedding and the owners said they would have to decline, the backlash was so strong the family briefly had to close down out of fear of retribution. 

But as my colleague Scott Shackford explained at the time, the whole controversial mess was an unnecessary one: It was already legal in Indiana to decline to serve gay customers, since sexual orientation is not a protected class in that state. Even so, there was no evidence whatsoever that anti-gay discrimination was a widespread problem, largely because—preoccupied as business owners tend to be with making money—most of them are happy to take on clients of any stripe.

June

In June the Supreme Court handed down two decisions with monumental implications for religious liberty. First was Equal Employment Opportunity Commission v. Abercrombie & Fitch, in which the preppy clothing retailer was found to have violated the law by refusing to hire a Muslim woman because the head scarf she wears for religious reasons conflicts with the company's employee dress policy.

At first glance, this situation might appear to be analogous to the Holt case I mentioned above. But while a government action that prevents someone from exercising his faith clearly infringes on the First Amendment, as my colleague Jacob Sullum put it, "forcing companies to let employees wear head scarves is not 'government non-interference.'" As Americans, we should have every right to live out our faith as our conscience dictates (so long as we aren't using aggression against someone else's person or property, of course). But business owners should likewise have the right to run their companies in accordance with whatever beliefs are most important to them. It's a shame we've collectively grown so comfortable subsuming the latter value to our desire to punish behavior we don't like.

The second and far more widely cited decision from June was Obergefell v. Hodges, the case that once and for all made same-sex marriage legal in the United States. We at Reason largely cheered that ruling—short of getting our governmental overseers out of the marriage business altogether, extending governmental rights and privileges to all Americans equally strikes most of us as the best outcome from a libertarian perspective.

But as I pointed out the day of the ruling, the case also cracked open some troubling questions about how the "fundamental right" to have your marriage recognized by others will be enforced against private organizations. Might a school that refuses to provide health care benefits to the same-sex spouse of an employee lose its accreditation? How about an adoption agency that won't place children with gay married couples, or a college that won't make family housing available to them? Will faith-based charities be made to choose between their deeply held beliefs and their tax status? From my post:

Religious types have long worried a ruling in favor of nationwide same-sex marriage could lead to the revocation of rights and privileges for religious organizations. During the arguments in Obergefell v. Hodges…there was an exchange that lent some credence to those fears.

Justice Samuel Alito cited Bob Jones University v. the United States, a 1983 decision allowing the federal government to strip a Christian university of its tax-exempt status for discriminating against interracial couples.

"In the Bob Jones case, the Court held that a college was not entitled to tax­-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same­-sex marriage?" he asked.

Responded the solicitor general: "You know, ­­I don't think I can answer that question without knowing more specifics, but it's certainly going to be an issue. I don't deny that. I don't deny that, Justice Alito. It is going to be an issue."

July

The following month brought with it a definite blow to religious liberty when the Oregon Labor Commissioner upheld a judgment that Aaron and Melissa Klein pay $135,000 for declining to provide the cake for a same-sex wedding. Since a bake shop is considered to be a "public accommodation," its owners can't turn away a customer for being a member of a protected class—and unlike Indiana, the Beaver State does put sexual orientation in that category. This means that a baker can in fact be compelled by governmental fiat to participate in an event she sees as sinful—and if she stands on principle and continues to refuse, the state will fine her into oblivion. (The Kleins closed down their storefront and now make cakes in their home by special order only.) Here's Shackford on the sheer inanity of using the law to punish someone for hurting someone else's feelings:

What frequently gets ignored in these political battles—aside from the concept that people should have the right to associate (or not associate) with whomever they choose—is whether the law is the best tool to resolve these conflicts. Many wedding businesses are falling all over themselves to compete in this new and potentially profitable market. There is little indication that gay couples actually need the government to force resistant religious bakers to fire up their mixers in order to have the wedding of their dreams.

August

Of course, not all claims of "religious liberty" are created equal. Late this summer, confusion set in about what those words really mean when a Kentucky county clerk named Kim Davis made waves by refusing to carry out one of her duties. After the Supreme Court struck down laws making same-sex marriage illegal nationwide, Kentucky Gov. Steve Beshear ordered all county clerks in the state to begin issuing licenses to gay couples. Rather than comply, Davis, a born-again Christian, announced she would no longer be issuing marriage licenses to anyone at all. She was held in contempt of court and jailed, prompting GOP presidential hopeful Mike Huckabee to come to her defense, declaring the ordeal a "criminalization of Christianity."

But Davis wasn't sanctioned for being a Christian, believing gay marriage is sinful, or speaking out about the same; she was jailed because she broke the law after swearing an oath to uphold it. She had the option to resign her position. Instead she demanded to continue being paid a salary despite refusing to fulfill one of the major obligations of her office. Were Davis simply a private actor, my position would be different. "The state ought not be in the business of dictating the terms of private contract to consenting adults," I wrote at the time. But no one has a right to draw a paycheck for a job they are not doing.

October

In October a nonprofit legal organization called the Alliance Defending Freedom (ADF) filed a complaint against the state of California. In its crosshairs was a law mandating that pro-life medical centers in the state post notices with information about where to go for free or low-cost abortion and contraception services.

The pro-life clinics generally offer services like pregnancy tests, ultrasounds, counseling, and access to donated baby-related goods like diapers and maternity clothes. Their purpose is to provide moral and material support to pregnant women, thus encouraging them to carry their babies to term. The executive director of one such facility told NPR that "a sign in the lobby is not how or when he wants his clients at the clinic to hear about abortion. It goes against everything his center stands for."

"It's like telling the Alcoholics Anonymous group that they have to have a large sign saying where people can get booze for free," added a representative of the Pacific Justice Institute. The individuals and organizations who run the clinics see the law as a violation of their First Amendment rights—they say they should not be forced to facilitate an act they believe is morally wrong. For their part, supporters view the law as a common-sense safety precaution akin to signs informing employees they're required to wash their hands before returning to work.

It's now up to the courts to decide which interpretation is correct, but what's interesting about this case for me is the political conundrum it creates for the free-minds-free-markets set. Historically most (but by no means all) libertarians have supported abortion rights. Still, if there's one thing that generally unites us, it's a shared hatred of the heavy-handed regulatory state. I'm hopeful my freedom-loving friends will manage to overcome their disdain for religionist anti-choicers in this case.

November/December 

One might have thought that by the year 2015, the United States of America—a nation founded by immigrants seeking the freedom to hew to their faith—would be beyond talk of excluding groups based on the religion to which they belong. One might also have thought that an angry, vulgar, thrice-married reality TV star would be immediately disqualified by sane voters from seeking the presidency, but apparently that isn't true either.

Let's review the facts.

The Western world suffered two shocking terrorist attacks within three weeks of each other this fall—first in Paris on November 13 and then in San Bernardino, California, on December 2. The culprits seem to have been inspired if not dispatched by the Islamic State, a murderous "caliphate" of radical jihadists based in Iraq and Syria from which more than 4 million innocents have tried to flee.

Responding to fears that some members of the terrorist organization might sneak in alongside refugees granted admittance, the current frontrunner for the 2016 Republican nomination called in early December "for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on." 

As my colleague Brian Doherty then explained, "The percentage of Muslim immigrants…who cause any sort of problem because of the 'hatred' Trump posits fills enough of their hearts to bar them all is, it should go without saying, vanishingly small." To understand just how vanishing, note that The Washington Post has reported the total number of terrorism deaths in the U.S. last year at 18, while the number of car crash fatalities one year prior topped out at more than 32,700.

But when did logic ever stop a politician from preying on public fears? 

Finally, the last month of 2015 saw a Massachusetts court rule that an explicitly Catholic school may not refuse to hire someone because he's married to a man, despite the fact that the Catholic faith strongly opposes same-sex marriage and views homosexual acts as sinful. Shackford again:

Like many states, Massachusetts does acknowledge the right of [a] religious institution to choose with whom to associate on the basis of its beliefs and provides some exceptions to antidiscrimination laws.

But these exemptions are not all-encompassing, as Catholic girls' school Fontbonne Academy just discovered this week. The Catholic school retracted a job offer they extended to Matthew Barrett to be their food services director when he put his husband's name as his emergency contact on employment forms, meaning he's gay and married. That's not exactly in alignment with the Catholic Church's teachings.

Barrett and the Gay and Lesbian Advocates and Defenders (GLAD) fought the decision as antigay discrimination. The school defended itself, calling on the religious exemption, but the judge ruled it didn't actually apply here.

Shackford adds that the ruling "puts the government in the position of deciding for which hires [a] religious institution can allow its faith to help dictate its actual operations," something supporters of religous liberty ought to find deeply disturbing. But if this year has shown us anything, it's that once you start down the path of criminalizing unpopular behavior, it's hard to know when to stop.

Looking Ahead to 2016

There's one religious liberty controversy that didn't dominate this calendar year but is almost certain to rear its head next spring: the question of whether the government can require religious institutions to "facilitate" the provision of free contraceptives and abortifacients to their employees.

The Supreme Court has agreed to hear a case brought by seven different organizations against Health and Human Services (HHS) Secretary Sylvia Burwell. The open question is whether an HHS "accommodation" to a rule forcing most employers to provide free birth control to their employees creates a substantial burden on faith-based schools/charities—and if it does, whether it uses the "least restrictive" possible means for achieving a government interest, in accordance with the RFRA.

Probably the most well-known of the plaintiffs are the Little Sisters of the Poor, a cohort of Catholic nuns who run homes around the world to care for the indigent elderly. They're balking at "executing documents that authorize and obligate others to use the Little Sisters' healthcare plans to accomplish the 'seamless' provision of contraceptive coverage." Per my colleague Damon Root:

Although the federal government has exempted the Little Sisters from providing contraceptive coverage directly to its employees, the Little Sisters object to the fact that it is nonetheless required to file paperwork that results in that same contraceptive coverage being provided by a third-party. In the view of the Little Sisters, any involvement in facilitating such contraceptive coverage is tantamount to being involved in facilitating abortion.

As I explained in more detail here, the Catholic Church's position is that using or facilitating the use of contraception is immoral. The Obama administration, on the other hand, says that just filling out some forms isn't enough to be considered a morally onerous requirement. But as always, it's worth asking ourselves whether we really want to give government the authority to decide where the bar should be for "complicity" in an evil act.

No, thank you.

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  1. Alt-text:
    Always look on the bright side of life.

  2. The big problem with Religious Freedom is that many on the left want to turn in into a discrimination the non-religious don’t have. Unfortunately that is also what many conservatives believe too.

    It definitely needs to be pushed as Freedom of Belief.

    1. Or freedom of conscience. Freedom of thought. Maybe freedom of Weltanschauung (worldview).

      1. Or Freedom.

  3. “It was already legal in Indiana to decline to serve gay customers, since sexual orientation is not a protected class in that state.”

    Not in some communities it wasn’t. And now there are more and more Indiana communities jumping on the bandwagon.

    “Most of Indiana’s largest cities ? Gary and Fishers are notable exceptions ? have LGBT anti-discrimination ordinances in place.”

    Not to mention that RFRAs don’t just protect “gay-bashing,” they protect Muslims wearing beards, Sikhs wearing turbans, and other totally non-gay things.

    1. Wearing a turban is pretty gay

      1. What about riding a Harley while eating fish dicks?

  4. “when a Kentucky county clerk named Kim Davis made waves by refusing to carry out one of her duties.”

    That begs the question. She swore to uphold the federal constitution – including the 10th Amendment – and the Kentucky Constitution – including the part that said public officials could only recognize man/woman marriage, not other variants.

    She didn’t take a personal loyalty oath to government officials, like in some countries. She didn’t say “I swear: I will be faithful and obedient to the leader of the American empire and people, the Supreme Court, to observe the law, and to conscientiously fulfil my official duties, so help me God!”

    1. Hey, even that oath says “observe the law”!

      1. From the Kentucky Constitution:

        “Members of the General Assembly and all officers, before they enter upon the execution of the duties of their respective offices, and all members of the bar, before they enter upon the practice of their profession, shall take the following oath or affirmation: I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of …. according to law; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God.”

        http://www.lrc.ky.gov/legresou/constitu/228.htm

        Where’s the part about swearing (or affirming) personal fealty to designated government officials, like Presidents of Supreme Court justices?

        1. Presidents *or* Supreme Court justices?

        2. She is to be “faithful and true” to Kentucky, but it says nothing of any Leader or committee of leaders.

        3. I will support the Constitution of the United States and the Constitution of this Commonwealth

          So what should they do when the two are at odds?

          1. The Tenth Amendment is at odds with the Kentucky Constitution’s protection of marriage?

        4. and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God.”

          On a side note, that may be the dumbest oath of office I’ve ever read.

          KY has some duel issue?

          1. If the oathh had not been revised since sometime in the 1920th century, it did. Hamilton and Jackson were rather famously involved in duels but the practice was beginning to be banned.

            1. If the oathh had not been revised since sometime in the 1920th century, it did.

              I don’t think the Eloi are gonna have issues with duels like you do.

              1. I hate my phone’s auto correct.

          2. “KY has some duel issue?”

            It’s something about the duality of man. The Jungian thing.

      2. The Supreme Court cannot make law.
        Article 1, Section 1:All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
        And even then, that would be federal law, while marriage had been the exclusive domain of state law.
        For that reason Slade’s description of the Obergfell decision was inaccurate.
        Once again supposed libertarians just love them some bare majority of a group of unelected lawyers get to take the decisions out of the hands of the people.
        It certainly didn’t have the effect of taking marriage out of the hands of government as libertarians claim is their goal.

    2. Technically David brone can executive order from the governor. Perhaps the Kentucky constitution permits the governor to issue such an order when there is no longer controlling state law, but saying that Davis broke the law is allowing for a very broad definition of the word “law”.

      1. What she definitely did was flaunt Justice Kennedy’s newly revealed federal dogma.

  5. I’d put another item on the agenda for 2016 (unless it’s already been addressed).

    There are a lot of big companies that provide benefits to the unwed partners of their gay employees. That was all well and fine when gay marriage was illegal, but now that gay marriage is legal, providing benefits to the unwed partners of gay employees while excluding the unwed partners of heterosexual employees from receiving the same benefits amounts to discrimination against heterosexuals for being heterosexual.

    It may be time for gays to start checking their privilege, too.

    The flip side question is whether companies can refuse to give benefits to the legally married spouses of gay employees on religious grounds if they give benefits to the legally married spouses of their heterosexual employees.

    1. Personally I believe that all spouses and significant-others should be treated equally. However, I question whether the federal government should have the power to define who beneficiaries must be.

      1. What you want then is for girlfriend or a boyfriend to have the same legal status as a spouse. That means a marriage contract has no more legal status than a casual hook up or it makes your hook up effectively your spouse with all the legal rights and privileges to your stuff that a formal marriage contract would have.

        1. it makes your hook up effectively your spouse with all the legal rights and privileges to your stuff that a formal marriage contract would have.

          That view is not without long historical precedent in many cultures, including the West.

          1. Yes, there had been common law marriage. I think such a legal equality would make common law relationships more expansive but I do not think the people advocatiing this have really thought out the consequences and really want what that implies.

      2. “Personally I believe that all spouses and significant-others should be treated equally. However, I question whether the federal government should have the power to define who beneficiaries must be.”

        Someone will sue eventually.

        If, say, Disney isn’t providing the same benefits to unmarried heterosexuals as it is to unmarried homosexuals, I’d be surprised if some enterprising attorney doesn’t go after them on a class action basis. Once it’s in the courts, they’ll probably just look at from an equal protection perspective. I wish the courts would recuse themselves on the basis that the government has no business in these matters, but I don’t think that’s one of the options on the table.

    2. providing benefits to the unwed partners of gay employees while excluding the unwed partners of heterosexual employees

      Which is why companies (like mine) aren’t doing this anymore. Marrieds only.

  6. I can see this post getting up to 300 comments. Of course 250 of those will just be Eduard replying to himself.

    1. If you can suggest another intelligent person I can talk to, I’d like to hear it.

      1. I suppose the voices in your head are the only ones who really get you.

    2. I larfed

  7. Apropos of nothing, I wonder if straffinrun has ever seen the movie The Graduate?

    1. What are you waiting for? Do you think there is anyone else here intelligent enough to answer your question?

      1. You’d miss me if I left you for RedState.

  8. Little Sisters of the Poor

    Did they beat TCU this year?
    -Gordon Gee

  9. Barrett and the Gay and Lesbian Advocates and Defenders (GLAD) fought the decision as antigay discrimination. The school defended itself, calling on the religious exemption, but the judge ruled it didn’t actually apply here.

    So Barrett and GLAD fought the decision of the school withdrawing an offer of employment, and won.
    What now? The school is forced to re-offer the guy a job? Then what?

    The school is forced to hire him or be taken to court for not hiring him? Who wants to work somewhere where they aren’t wanted?

    It’s the exact opposite of Groucho’s “I’d never join a club that would have me as a member”.

    Obviously, the school definitely screwed up by giving specific reasons for the withdrawal.

  10. How the Free Exercise clause got gutted and made into a mere statutory right is up there with penaltax.

    1. It’s a coalition of the mendacious. A combination of the anti-religious and religious zealots from the 1890s to the 1950s pretty much gutted the original meaning of the 1A.

  11. But, Stephanie, you’re not seeing straight in your August castigation of Kim Davis Constitutionally valid actions.

    She’s refusing to act against her religious convictions – explicitly endorsed by the Constitution – to comply with a directive instituted by a law passed AFTER she was elected. Furthermore, that law bans discrimination which is NOT Constitutionally protected.

    So let’s summarize: Kim Davis was voted in to do a job and she’s been doing it and upholding the Constitution. The politicians pass a law which has no Constitutional basis and then jail her for not endorsing their unconstitutional changes even though they override her Constitutional rights.

    You couldn’t make it up.

    Yet it’s only the first of many foreseeable issues when you hold discrimination in any form as higher than the Constitution. Does this mean a sex worker can’t refuse sex with a cruel violent man who has physically injured previous partners? Is a Muslim barber allowed to refuse to cut the hair of a lesbian, assuming that’s against his religion?

    What happens when the politicians decide to extend the discrimination ban to all persons as they have to every business? Will you be breaking the law by refusing sex with someone who wants you but you have no interest? There’s no limit…

    As you say, Davis was voted in to do a job. But she’s still a person and was NOT voted in to do any and all future job changes which the politicians decide…

    1. “Davis was voted in to do a job. But she’s still a person and was NOT voted in to do any and all future job changes which the politicians decide…”

      To the contrary, she was. Laws change all the time. If you are in a position to enforce laws, be it as a cop, a meter maid, or a county clerk, that’s part of the package. You sign on knowing that at any time your legislature can pass a new law or strike down an old one, or a court decision can come down the pipe, that will change your job.

      And when that happens (and it will happen) you have two choice with a possible delaying action. The delaying action is to take it to the courts, but if you lose you’re back to the original two choices. And those two choices are do the job or resign.

      But demanding that your job never change from the day you sign on? That’s unreasonable.

  12. That’s what I always wondered. Changing the rules on someone mid game.

  13. Um, the Indiana law was totally about gay people. The governor surrounded himself with anti-gay activists when he signed the bill, gave a wink and a nod to discriminating against gay people, and when the country blew up at him, those same people roasted the guy when he signed the addendum that said it wasn’t an excuse to violating non-discrimination laws.

    Pretending it wasn’t intended to override local non-discrimination laws, or that there weren’t significant differences between it and the federal law, is to be dishonest.

    Similarly, the Kleins closed their store-front before any judgement came down. They weren’t forced to close, they chose to because if you want to discriminate, that’s what you do – you don’t allow walk-ins. As to the size of the fine… it was based on two things. First their doxing of the plaintiffs. Second, the war-chest they’d accumulated via their conservative-media money begs.

    As for “This means that a baker can in fact be compelled by governmental fiat to participate in an event she sees as sinful” This is true. And has been since 1964. Pretending this is new is dishonest. For that matter, there are hundreds of non-discrimination cases every year. But only the ones involving gay people get this much publicity despite their comparative infrequency. Kinda makes it hard to believe that non-discrimination laws are the issue.

    I could go on. This article leaves out a lot of nuance in every single situation.

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