2015: The Year in Religious Liberty Controversies
And one to look forward to in 2016
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.
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.
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.
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."
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.
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.
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.
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.