Religious liberty

The Law Protects Religious Liberty Far More than Many People Think

Conservative legal commentator and experienced religious liberties litigator David French explains why.

|The Volokh Conspiracy |

In an excellent recent article, conservative legal commentator and longtime religious liberty litigator David French explains why current law protects religious liberty far more than many people—particularly many conservatives—think. French makes many good points, and I agree with nearly everything he says. I do have two  reservations about his conclusion, however. One relates to the specific field of immigration law, which is a major exception to his thesis. The second is the growing tendency of many on both right and left to vary their approach to religious liberty issues depending on whose ox is being gored. The latter does not in itself change the nature of current legal doctrine. But it could have negative effects down the road.

Here are some of the excellent points French makes. On Title VII and employment discrimination:

I have seen a remarkable amount of commentary in the aftermath of the Supreme Court's decision in Bostock v. Clayton County arguing that the Supreme Court dealt religious liberty in America a serious, dangerous blow. Bostock, for those who don't follow SCOTUS case names closely, is the case that interpreted Title VII's prohibition against discrimination on the basis of "sex" to necessarily include sexual orientation and gender identity.

As I read piece after piece, I realized that many of the people writing about the impact on religious freedom simply didn't understand the law. A generation of Americans raised on breathless activist warnings about freedom's demise genuinely believe that religious organizations teeter on a dangerous precipice….

Religious employers have a right to impose religious litmus tests on their employees.

Title VII of the Civil Rights Act of 1964—the same statute at issue in Bostock—contains a provision specifically designed to protect the autonomy of religious organizations. It states, "This subchapter shall not apply … to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities."

It's true that this carveout does not allow the religious organization to discriminate on other grounds (such as race or sex), but it does allow them to filter out all applicants who do not share the group's faith. This has a profound impact on the relevant applicant pool and (along with the First Amendment) permits employers to require that applicants agree to the organization's statement of faith.

Religious employers are completely exempt from nondiscrimination statutes when hiring and firing "ministerial" employees. The ministerial exception may well be the key firewall protecting church from state. Put simply, and as defined by a unanimous Supreme Court in 2012, both the Free Exercise and Establishment clauses of the First Amendment work together to remove the state—including all nondiscrimination laws—from the ministerial selection process.

On Title IX, which bans sex discrimination in educational institutions:

Religious educational institutions enjoy a right to exempt themselves from Title IX. If there's a single question I've received more than any other, it's this: Does Bostock mean that religious schools will now have to alter policies regarding dorm rooms or sexual conduct to comply with federal prohibitions against sexual orientation and gender identity discrimination?

The short answer is no. The longer answer is nope, not unless they choose to be subject to Title IX…

To be clear, Bostock is an employment case (and thus the sections above apply to employment at religious schools), but one would expect that the definition of "sex" applied in Title VII would also extend to Title IX, thus preventing sexual orientation and gender identity discrimination in, for example, codes of conduct, dorm placements, and athletic programs. .

But Title IX contains a special carveout:

[T]his section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.

The exemption is not automatic. Schools have to choose to opt out (either proactively or in response to a Title IX complaint), and a number of religious schools have taken advantage of this provision. Many have not, but it is their choice, and that choice is plainly and clearly embedded in federal law.

French also covers a wide range of other issues, including discrimination against religious groups and organizations in access to public facilities, protections against employment discrimination targeting religious employees, and the extensive protection the Religious Freedom Restoration Act (RFRA) gives to religious freedom by mandating religious exceptions to many "generally applicable" federal laws. I would that 21 states have enacted state RFRAs, which provide similar religious exemptions from state laws. Anyone interested in this topic should read French's article in full. In most areas, religious liberty today enjoys broader protection than at any time in American history.

The big exception to French's relatively optimistic conclusion is immigration law. Thanks to the Supreme Court's badly flawed ruling in the 2018 travel ban case, the federal government is allowed to engage in religion-based discrimination in immigration law that would be forbidden in virtually any other context. As I explained in this article, evidence of unconstitutional discriminatory motivation in the travel ban case was substantially stronger than that presented in the Masterpiece Cakeshop decision, which the Supreme Court issued just a few weeks earlier. Yet the Court struck down the government action in the latter case, while upholding it in the former, because of the doctrine of special deference to the President and Congress on immigration policy. As a practical matter, this leaves the president and Congress free to engage in blatant religious discrimination against would-be immigrants, so long as there is even a thin veneer of a nondiscriminatory rationalization for their policy—even a transparently bogus one, as in the travel ban case itself.

This sad state of affairs is part of a more general pattern under which the Court has  largely exempted immigration restrictions from many of the constitutional constraints that apply to virtually every other exercise of federal power. People who care about religious freedom—and other constitutional rights—should work to change that.

The other reservation I have about the state of religious liberty is the pattern of ideological and partisan double standards that all too often surround the issue. Too many on the right care greatly about religious liberty when theologically conservative Christians are the ones in peril, but turn a blind eye (or worse) in the travel ban case, and other situations where the group that is threatened is one they have less sympathy with. On the left, many who were rightly outraged by Trump's travel ban have no such objections to Blaine Amendments that discriminate against religious schools, or recent state and local government policies that treat religious meetings and demonstrations far more harshly than secular protests that liberals have greater sympathy for. I criticized such double standards in greater detail here.

In the short and even medium term, such inconsistency is unlikely to undermine legal protection for religious liberty too much. But, in the long run, a society where most political activists and elites care about religious freedom only when it affects "their" side, is one where religious freedom necessarily rests on weaker foundations than it should.

I do not claim to be a paragon of virtue or consistency when it comes to religious liberty issues. But, for what it is worth, I was one of the relatively few people who argued that religious liberty claims deserved to prevail in both the travel ban case and also in Masterpiece Cakeshop (which involved a conservative Christian baker who refused to bake cakes for same-sex weddings) and the 2014 Hobby Lobby case (which involved a RFRA claim by a theologically conservative business owner who opposed contraception).

As an atheist, I do not share the religious beliefs of the Muslim targets of Trump's travel ban. And I have little sympathy for religious objections to same-sex marriage and contraception, both of which reflect attitudes I decry. But I still think it is essential to protect the liberty of those who hold such views. Just as freedom of speech famously requires freedom for "the thought that we hate," so too religious liberty must apply even to those religious beliefs we have little affinity for or even consider abhorrent.

 

 

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  1. Considering the overt animus towards polygamists that Kennedy spouted in Obergfell one could surmise Reynolds is still good law and religious beliefs are protected but actions that flow from religious beliefs are not protected. So the fact ISIS kills infidels because Islam instructs them to means we can ban them from coming here because of their religious beliefs.

    1. Can you cite where Kennedy demonstrated this overt animus towards polygamists in Obergfell?

      Also, if actions that flow from religious beliefs are not protected then religious institutions must follow the discrimination laws, right?

      1. It’s Kennedy saying “oh, a court case that will legalize polygamy won’t happen” while Scalia coughs politely *Lawrence* in the corner.

        pg 21
        If not having the opportunity to marry “serves to disrespect and subordinate” gay
        and lesbian couples, why wouldn’t the same “imposition of
        this disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual
        Revolution? Newsweek, July 28, 2009 (estimating 500,000
        polyamorous families in the United States); Li, Married
        Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr.
        23, 2014; Otter, Three May Not Be a Crowd: The Case for
        a Constitutional Right to Plural Marriage, 64 Emory L. J.
        1977 (2015).
        I do not mean to equate marriage between same-sex
        couples with plural marriages in all respects. There may
        well be relevant differences that compel different legal
        analysis. But if there are, petitioners have not pointed to
        any. When asked about a plural marital union at oral
        argument, petitioners asserted that a State “doesn’t have
        such an institution.” Tr. of Oral Arg. on Question 2, p. 6.
        But that is exactly the point: the States at issue here do
        not have an institution of same-sex marriage, either.

        1. So…your evidence is Scalia’s characterization of Kennedy’s opinion?

          1. Why on earth would you say that?

            Look, I don’t see animus, I just provided the cite that the other person was referencing too. What I do see, is Kennedy drawing a metaphorical line in the sand that, as history has proven, we will likely cross.

      2. Keep in mind the context is the ugly precedent of Reynolds, which obviously Kennedy was aware of, and then the larger context of Mitt Romney running for president even after his ancestors were forced to flee from goons from federal government denying them their right to marry according to their deeply held beliefs and live in exile in Mexico!?! Talk about rubbing salt in wounds! From Obergfell:

        The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. See Windsor, 570 U. S., at ___ ___ (slip op., at 22 23). There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. Cf. Loving, supra, at 12 (“[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”).

        A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. This point was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception. 381 U. S., at 485. Suggesting that marriage is a right “older than the Bill of Rights,”

        1. So your evidence of anti-polygamous animus is that Kennedy recognized how past court decisions highlighted the critical aspect of two person marriages?

          1. Marriage is a union of people. The reality is the WASPs that controlled America outlawed polygamy and characterized religions that promote polygamy as deviants not to be accepted within polite society…these actions are clear evidence of animus towards polygamists and their religions. If the Supreme Court really believed in stare decisis along with the rationale of Obergfell then marriage would be expanded to include polygamy. The only issue with polygamy is how spousal pension benefits are decided but the same thing was an issue with same sex couples and pensions.

            Btw, Edith Windsor of the Supreme Court case to strike down DOMA apparently got married again after her first spouse died…so why couldn’t she have been married to both women at the same time?!? I don’t understand why it is so beautiful for two 80 year olds to be married but disgusting for two 80 year olds and a 50 year old to be married???

            1. Same sex marriage bans discriminate on the basis of sex, in violation of the equal protection principles enshrined in our founding documents (regardless of the intention of their authors and the expectations of the ratifying public). Polygamy bans discriminate on the basis of math, which is (to date) quite permissible under any rational interpretation of the Constitution, but Chicken Little fundagelicals will find a slippery slope because their boundaries are being eroded and they’re (a) afraid and (b) incapable of processing in anything other than black and white.

  2. Consider the sheer amount of hatred the Left has for Christians, it doesn’t matter if the letter of the law provides them protections. Did churches no good in more liberal circuits when lockdown orders unconstitutionally shuttered them (but kept liquor stores open.) The pronouncements from those courts even includes some ignorant religious scolding on how “real” Christians could practice their religion without attending church.

    Laws only matter if they are followed and enforced. Since judges don’t seem keen on upholding religious liberty (at least as applied to some) those protections are not worth the paper on which they are written.

    1. “letter of the law” didn’t stop Gorsuch and Roberts in the Title VII case, did it.

      Easy as pie to rule that the so called protections are unconstitutional because they establish a religion.

      1. Sour grapes vaulting into speculative future victimhood.

        Why do you object, Bob? Principles are for losers, after all – the liberals you’ve conjured up are just acting according to the Bob playbook!

        1. Yes, the left has no principles.

          That is why they win.

          1. You’re certainly working on that for the other side, eh?

          2. I don’t see how that can make you unhappy. You believe they’re living the Bob life, so why do you point and complain?

    2. You think the experience of going to the liquor store is similar to that of going to church? I’m not sure if I want to say ‘man I’d not like to visit your church’ or the opposite…

      1. Both venues have wine. What more similarities do you need?

    3. “Consider the sheer amount of hatred the Left has for Christians”

      Not all Christians are poorly educated, bigoted, insular, science-disdaining, stale-thinking, selfish, separatist people. Not nearly.

      Many Christians are progressive, modern, reasoning, inclusive, educated people who care for the poor; reject the ‘gospel of affluence’ and gay-bashers; oppose torture and the death penalty; dislike massive military spending and abusive policing; and support our strongest research universities and public schools.

      1. “We are the Folk Song Army
        Every one of us cares
        We all hate poverty, war, and injustice
        Unlike the rest of you squares”

        — Tom Lehrer, 1965

    4. If Biden wins the presidency and the Dems get the senate, I wonder if they will remove religious organizations from 501(c)(3).

      1. That would be political suicide. Progressive/Liberal religious organizations take advantage of the same tax code as the televangelists and actually do good work.

  3. As I understood Trump’s Muslim travel ban it had to do with our ability to protect ourselves from terror attacks using Obama administration classifications. Record keeping in the banned counties meant that no one could tell, with certainty, who those people were and if they posed a threat. It was not a blanket ban.

    1. Your understanding misses some things Trump and his advisors said about it then.

    2. Your understanding comes up short, history-wise. Trump loudly proclaimed he’d immediately ban Muslims until “security measures” were put in place for public safety. There was to be a period of months while these new regulations were researched and formulated. But no Trump supporter was interested in details on that. The word “ban” was what brought orgasmic clears at Trump rallies. It was almost as popular as Mexico paying for the wall.

      So Trump as president announces his ban, and the courts put a hold on its implementation. Almost eighteen months of legal wrangling ensues, many times more than the period supposedly required to study & decide on new security procedures. By the time Trump’s ban was finally OK’d, you’d assume it would be moot. But Trump officials testified they’d made no moves on these new measures. Not even a single step was taken on the new “procedures” allegedly critical to public safety. None. Nada. Zilch.

      Because to Trump they were never more than excuse. Only the ban itself was popular to his cheering supporters. The supposed justification for the ban was completely irrelevant. It was never more than just another Trump con.

  4. You decry the attitude that says someone else shouldn’t be forced to pay for your private sexual choices to go bareback?

    Are you insane?

    1. Are you talking about Catholics?

      1. Does society have a problem with Catholics putting taxpayers on the hook for kids conceived due to lack of use of birth control (never mind natural family planning) more than taxpayers are on the hook for HIV/AIDS?

        That said, society still does have the right, nay, obligation, to say to individuals what they can f*ck and who they can f*ck and how they can f*ck, even though clearly our collective standards of acceptability have changed.

        1. “Does society have a problem with Catholics putting taxpayers on the hook for kids conceived due to lack of use of birth control (never mind natural family planning) more than taxpayers are on the hook for HIV/AIDS? ”

          I’m not sure what you’re saying here…Surely there are a lot of Catholic orphanage and adoption services that ask for and get taxpayer money. Catholic ideas about family planning (or the lack thereof) can be seen as being as conducive to the underlying situation as ‘HIV/AIDS’ (I’m guessing you’re attributing this to ‘gays’ in general somehow?) spending might be…

          1. Oh, come on. You’re attempt a pithy humor failed, admit it.

            Catholics are pretty much out of the adoption business anyway because they won’t give kids to gay couples, ironic, considering the scandal that rocked the church recently. As for HIV/AIDS, virtually all transmission is well, you know, which amount to untold billions in costs for society. It is what it is.

        2. We wouldn’t have unwanted children or HIV/AIDS if a bunch of very selfish people would just wear a condom.

          A contraceptive that’s virtually free and available nearly everywhere.

          Yet a bunch of incredibly selfish people demand that everyone else pay for their increased sexual pleasure for natural sex or for high-risk sodomy.

        3. And some of us look at churches like yours and decide that we’ll give the spiritual circle jerk a pass because if we wanted that, good planning Saturday night means we can get off in a more literal sense.

          If you can’t bother to actually follow the religion you claim to be part of and will be a scold to others, don’t be surprised when nobody cares.

          1. Sorry, cell commenting is buggy and that was to go elsewhere.

            But our welfare system is pretty much based on the assumption that the population would be forever growing and the Ponzi scheme could go on forever and ever and ever. If anything, we should complain about the people who refuse to ensure their replacement in that Ponzi scheme–at least, as long as they also want it to keep going. (If they want to pass on having kids and give up the social safety net that assumes they will have kids? At least they’re being honest.)

  5. What the strict religious conservatives want to define as religious freemdom is their right to impose their religion on those who do not believe in it. So they want to deny family planning to those who have no objection to it; they want to force tax dollas to suppot their schools and they want to make everyone participate in their prayer.

    So they will never accept that they have religious freedom until their’s is the only religion allowed.

    1. Why should someone else be forced to pay for your private family planning choices?

      1. Y’all want quite a bit more than just no payments, Sam.

        1. Why should my family sacrifice one single red cent so you can enjoy increased sexual pleasure in your private sexual life without any financial burden?

          Can you address that?

      2. They want to make family planning either illegal or hard to get. They go after birth control also (remember Plan B). And they want to restrict these no matter who pays.

      3. “Why should someone else be forced to pay for your private family planning choices?”

        Why should anyone else be forced to pay for entertainment, child care, recreation, and other services provided by freeloaders associated with churches? Why should others subsidize the fire, police, and other services provided to and used by churches that do not carry their societal weight in taxes?

        1. Wow, you’re a small, hateful, spiteful bitch.

        2. The Christian church should charge you for using the Gregorian calendar. Go get your own months and count of years, you freeloader you.

        3. Only to a lunatic Leftist is the increased pleasure from bareback sex morally equivalent to fire or police services.

          In fact, the very same lunatic Leftists who demand society pay for their increased pleasure from bareback sex are demanding we defund police services.

          It’s a legit mental disorder.

      4. Majority rule in a system of taxation with representation.

    2. I think that is it a big problem that people, such as yourself, don’t understand that our collective morality is reflected in law through the democratic process. Clearly, there is overlap between secular morality and religious morality. A democratically passed law doesn’t necessarily mean that a religion is being forced on the secular, nor likewise secular morality being forced on believers.

      Moreover, even if the moral motivation behind a law is religious in nature, the fact is that religious believers have every right to try to affect the democratic process. Indeed, if they don’t, the democratic process of lawmaking is bent against them.

      1. The best example is the fact Christmas Day is a federal holiday. So the day is a holiday not because the federal government wants people to celebrate Christmas…it is simply an acknowledgment that the vast majority of Americans are Christians or from Christian families that celebrate Christmas. Although when it was passed I bet it was because Congress wanted people to celebrate Christmas so had some douchebag challenged it then maybe it could have been declared unconstitutional.

        1. That is a great example, consider it stolen for future use.

  6. ” . . . but one would expect that the definition of “sex” applied in Title VII would also extend to Title IX, . . . ”

    Hell, no one would expect that definition of sex to be applied to anything.
    What is the definition, exactly?
    That men are women, or men, or either, or both, depending on the day of the lawsuit?
    That women are men, or both, or either, depending on the day of the month?
    That a company cannot legally fire a man (whatever that is now) unless they would also fire a woman (whatever that is now) in the same circumstances? Well, in the skydiver case, a woman who was accused by a customer of ‘inappropriate touching’ would have been fired, so I got lost in the weeds.

    1. Title IX explicitly allows for sex discrimination.

      Gorsuch’s insane Title VII ruling claimed the offenses were sex discrimination since a woman could wear a dress but a man couldn’t.

      Well guess what Title IX does? It’s purpose is to say a woman can wear a dress but a man can’t, i.e. there is lawful sex discrimination for sports, bathrooms, etc.

  7. I’m not that concerned about Bostock.

    Recent decisions which appear to allow banning religious services as long as the government wants…those are far more concerning.

    1. Did they ban those services specifically (or any with the same relevant features)?

        1. Show your work?

            1. “”By explicitly and categorically assigning all in-person ‘religious services’ to a future Phase 3 — without any express regard to the number of attendees, the size of the space, or the safety protocols followed in such services — the State’s Reopening Plan undeniably “discriminate[s] on its face” against “religious conduct,” Collins wrote”

            2. “The judge said that argument missed the point because shoppers were going to those businesses to purchase specific items, not to commune with one another. A more relevant comparison would be restaurants, concerts, movies and sporting events — secular places people gather that were also ordered closed.”

              1. “By explicitly and categorically assigning all in-person ‘religious services’ to a future Phase 3 — without any express regard to the number of attendees, the size of the space, or the safety protocols followed in such services — the State’s Reopening Plan undeniably “discriminate[s] on its face” against “religious conduct,”

    2. Exactly. Bostock was, in the grand scheme of things, not a big deal. How many businesses really thought they could get away with firing someone because they were gay? Ignoring the government, Twitter mobs would’ve enforced that anyway. And how hard it is to fire someone because they’re gay and make it be because of a different reason. Bostock will cause a tremendous amount of litigation, but that’s a different problem.
      But these corona church/synagogue/mosque closings while protests are allowed to run wild in the streets, was a serious blow to religious freedom, and more than that, is a dispiriting sign of where public leaders have their priorities. America seems to be no longer a religious country.

  8. Immigration policy is foreign policy and national security. The Bill of Rights does not extend protections to the world 7 billion people or grant them privileges to enter the country, and the free exercise clause does not apply to immigration policy.

    1. Congress shall make no law doesn’t say anything about to whom it applies.

      1. So you oppose Obama banning members of ISIS from immigrating here?? Killing infidels is an important aspect of their religion. Plus we all know Obama has animus for Muslims because he rejected the Islam of his father’s family and very publicly embraced Christ as his savior. Then he did his best Churchill impression and wagged his finger as ISIS and told the uncivilized brown foreigners that they were practicing their religion incorrectly…the religion he rejected!?!

        1. Do you think being in ISIS is just a viewpoint?
          Do we protect domestic terrorism as protected speech?

          1. Killing infidels is an important part of their religion…I get it, you don’t approve of their religious practices but it still flows from their deeply held religious beliefs.

            1. So you do think it’s just a viewpoint.

              OK then.

  9. Reading this, I wondered what about all the businesses (like cake bakers and photographers) that have been the subject of litigation at the state level on the grounds they are “public accommodations.” Wouldn’t Bostock affect that at the federal level?

    But then I did a bit of research. The federal public accommodations law is at 42 U.S. Code § 2000a, and bars “discrimination or segregation on the ground of race, color, religion, or national origin.” Note the absence of the word “sex.”

    In addition, the definition of public accommodation there is much more limited than the expansive version given to that same phrase by many state authorities interpreting state civil rights laws. Many states interpret their laws as reaching any business or organization open to the public. Federal law seems limited to restaurants, hotels, theaters and sports arenas.

    So it looks like we won’t be seeing cake bakers and photographers sued under federal law.

  10. This is not “religious liberty”, this is just the ability for religious orgs to exempt themselves from laws they don’t want to comply with. It is BS cause the “religious liberty” does not go the other way, if you are an employee and need a religious accommodation, suddenly the law is not on your side. It is interesting that the businesses always find themselves on the lenient side of the law.

    1. There are religious accommodation laws for employees at both the federal and state level. Although the federal version has been interpreted by the courts in a way that provides only weak protection.

      1. That is my point, when it is the employers who want the “Freedom”, they get it quite a bit, when it is the employees, they have a hard time.

    2. If you hate the First Amendment so much, just come out and say so.

      1. So because I am calling for more religious freedom somehow I hate 1A?

  11. I love when you point out bigotry and intolerance involving Christians that is readily apparent and demonstrable, the same Black Lives Matter folks on the Left really pounce saying pretty much “you deserve it.” These are the same people that engage in endless gnashing of teeth and wringing of hands over any “micro-aggression” or slight to any minority. They will even trump up fake “hate crimes” to get their point across (probably because there is a distinct lack of actual hate crimes.)

    But point out a not so politically popular victim class like Christians suffering discrimination and it is all crickets from this crowd. Interesting to say the least….

    1. Sometimes I wonder what blog you read.

      I have seen no one complain about a micro-aggression in the whole time I’ve read this blog.

      And Christians are quite politically popular.
      Whatever victimization-based subsect you subscribe to may not be, though.

  12. This all depends on the meaning of the word “religion.” I think Christians are going to learn what it was like to be Jews during the last 2,000 years.

  13. Never have had the same heartburn over the immigration thing. It’s too much of a leap to me to confer benefits and protection in the US Constitution to non-US citizens.

  14. Ah yes, President Trump’s Muslim travel ban that (1) failed to include most of the world’s Muslims and (2) included a significant number of non-Muslims.

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