U.S. religious liberty feeling the weight of so many faiths
Saturday, Aug. 18, 2012
U.S. religious liberty feeling the weight of so many faiths
By MICHELLE BOORSTEIN
The Washington Post
WASHINGTON — In the United States, Muslim women trying to maintain
modesty should get female-only hours at the public pool, right?
What about Wicca troops who want a chaplain of their own, even if
there are only a few thousand of them in the military?
And Catholic business owners who believe that contraception is killing
— should they have to provide it to employees, now that the health
care law requires that workers get it?
The debate over whether religious freedom is being threatened seems to
have hit an apex, with the Catholic Church launching its biggest
campaign in a generation against the contraception mandate. Even the
presidential campaign is mixing it up; Mitt Romney's latest ad asks,
"When religious freedom is threatened, who do you want to stand with?"
But the real question is: What does religious freedom look like? As
America gets more religiously diverse, the concept is becoming harder
The bishops poured resources into their "Fortnight for Freedom"
effort, which warned that Americans' liberty to practice religion is
at risk. It featured overflow mega-Masses with special prayers for the
protection of religious liberty. A slew of lawsuits are pitting the
president against some of the most prominent Catholic institutions in
What do we mean when we talk about the freedom to practice religion in
America? Who gets to define it? And when should religious liberty
yield to other values?
Muslim cabdrivers are refusing to carry alcohol in their vehicles.
Some Christian bed-and-breakfast owners won't host honeymooning
same-sex couples. And before America got a crash course in their
beliefs after the recent shooting in Wisconsin, turban-wearing Sikhs
have been fighting extra screening at airports.
America has no road map out of this conflict. No vibrant democracy in
history has had our level of religious pluralism or piety. We're on
our own to figure out how to protect it. And the only thing people in
the booming field of religious-liberty law seem to agree on is that
Americans can expect more fighting.
"I think now, as diversity is increasing, as secularists and other
agendas move forward, we'll see that traditional base call out for
more and more accommodations to respect their beliefs," said Hannah
Smith, a senior counsel with the Becket Fund, one of the leading
religious-liberty law firms.
It's been an angry summer, particularly for religious conservatives.
Catholic bishops have focused on the Obama administration's new health
care law and its mandate that insurance companies provide
contraceptives to subscribers at no cost. And on same-sex marriage,
the once-neutral chicken sandwich has become a new rallying cry for
When the bishops and their religious-conservative allies say their
place in society is under assault, they have a point. Traditional
Judeo-Christian beliefs about gender, sex, reproduction and marriage
were for centuries treated as the norm, but consensus has since
crumbled, not only in secular culture but in religious communities as
well. Those beliefs — and the right to practice them in your life by
what you wear, what you say at work, whom you hire and what kind of
health care you have — are colliding with other, newly accepted
beliefs and rights.
There are new state laws requiring adoption agencies and foster-care
providers to consider same-sex parents. Two years ago, the Supreme
Court ruled that a Christian law school group in California couldn't
ban gay students. Missouri voters just passed a sweeping "right to
pray" ballot measure, which guarantees that residents can express
their religious beliefs in public places, including students who want
to opt out of class activities that violate their beliefs. The
measure's critics have said that religious freedom is already
protected and that the law will create endless litigation, but
supporters say it's needed to protect views such as creationism and
opposition to gay equality.
Another major driver of tension has been, ironically, a generation of
anti-discrimination measures. There are dozens of new protected
classes, which can lead to conflict. If it's illegal in Texas to
discriminate in employment against someone who is pregnant, can a
Baptist school fire an unmarried teacher because she violated the
faith? Can a married Catholic school teacher in Indiana claim
disability discrimination for infertility after she was fired for
using in vitro fertilization, also against church teaching?
Major court decisions point in all different directions. The Supreme
Court in 1990 ruled that Oregon could deny unemployment benefits to a
Native American fired for using peyote, even though his faith includes
it in prayer ceremonies. And this year the high court said that
churches are generally exempt from employee discrimination claims if a
worker's position has any religious component. The case centered on a
parochial school teacher who was fired after she threatened to take an
employment dispute to court, rather than resolve it within the
community, as doctrine requires.
Perhaps nothing has created more tension over religious freedom than
something that was created to boost it: much-expanded partnerships
between the government and faith-based groups.
Court decisions in the 1990s made it easier for public money to flow
to religious institutions — specifically, to religious schools in the
form of vouchers and to overtly sectarian groups that provide social
services such as anti-addiction programs or housing assistance.
In an era of bigger government, faith-based groups argue that they
need to be part of the social services being provided — with no major
strings attached. That may mean a Christian group being able to hang a
cross on the wall at a government-funded drug-addiction treatment
office. Or not being forced to hire people of another religion at a
government-funded disaster aid organization.
If the government gives a Catholic group a grant and exempts it from
some federal requirements, such as giving women access to
contraception, is that a win for religion? Or is it a loss, since some
might think that the government preferred one faith group over
The Mormon Church's decision to ban polygamy in 1890, allowing Utah to
join the United States, is seen today as a victory for mainstream
values over an unpopular religious practice. But last year, when a
ballot measure was proposed in California to ban male circumcision, it
was clobbered as a violation of religious liberty.
John Whitehead has as good a bird's eye view on this as anyone. When
he launched a career as a religious-freedom lawyer in the late 1970s,
he and the ACLU were practically the only people in the business. A
conservative evangelical, Whitehead had a portfolio largely consisting
of defending anti-abortion protesters tossed off sidewalks.
Today, his Rutherford Institute in Charlottesville, Virginia,., is
considered the model for half a dozen religious-freedom firms, and
business is jumping.
Whitehead has made a living off the subject but has come to this
conclusion: "You can get 10 different groups in the room, and they
will disagree about what religious liberty is."
Michelle Boorstein is a religion reporter for The Washington Post.