When the Exception Is the Rule: Christianity in the Religious Freedom Debates

Elements of the Christian Right are now seeking to expand the definition of a religious organization, and the extent to which religious exemptions extend to individual beliefs and religious institutions. The contemporary Christian Right’s notion that individuals and institutions should have the right to choose which laws they will respect and which ones they won’t is arguably one of the more extraordinary developments in American legal history. They are not only claiming the right to be selective about complying with the law, but are also claiming the right to determine the criteria by which such decisions are made.

In recent years this notion has dramatically influenced U.S. political and legal discourse. Those who embrace what theocratic evangelicals call a biblical worldview or what Catholics call the magisterium of the Church see their particular religious traditions as the sources of law to which all law must conform. Despite their many differences, these conservative believers have adopted a common platform regarding issues—as they define them—of life, marriage, and religious liberty.¹² But there are deep repercussions to each of these major coalitional tenets that are not always well reflected in public discourse.

[pullquote]The current wave of state legislation allegedly seeking to protect the rights of conscience of people opposed to homosexuality generally and marriage equality in particular, may be best understood as abuses of the historic idea of religious freedom.[/pullquote]

On a wide range of matters—from abortion and contraception to LGBTQ civil rights and federal labor laws—the Christian Right, in both its evangelical and Catholic expressions, is seeking to find new approaches to ensuring that the law does not apply to them.

Sen. James Inhofe (R-OK), for example, offered an amendment to the 2015 congressional budget that sought to apply the broad framing of the Christian Right’s political agenda to the relationship between the federal government and private contractors. “Federal agencies,” Inhofe’s amendment read in part, “do not discriminate against an individual, business, or organization with sincerely-held religious beliefs against abortion or that marriage is the union between one man and one woman.”¹³ The amendment was unsuccessful, but it epitomizes the contemporary thinking of the Christian Right.

The current wave of state legislation allegedly seeking to protect the rights of conscience of people opposed to homosexuality generally and marriage equality in particular, may be best understood as abuses of the historic idea of religious freedom. Or, as it’s often put, it’s conservatives using the idea of religious freedom to justify discrimination.

Inhofe’s amendment, for example, would not have protected the religious beliefs of those individuals and institutions whose conscience compels them to respect reproductive rights and moral consciences, or those who honor and celebrate same-sex marriages. In fact, major, historic religious traditions and institutions support the very rights opposed by the Christian Right. Thus when the Christian Right (and the politicians who pander to it) invoke religious freedom, often they’re using it as an excuse to deny religious freedom to others.

It’s also worth underscoring that, as a practical matter, the “religious” in “religious freedom” genericizes what is almost exclusively an initiative of conservative Christian institutions.

Religious Justifications for the Indefensible

Some of the most widely publicized contemporary religious freedom conflicts involve individual florists and bakers refusing to provide flowers or cakes for same-sex weddings. The notion that these private businesses’ denial of service amounts to a religious freedom battleground is based on the claim that the proprietors’ faith forbids them from supporting something contrary to their particular beliefs about God. Almost exclusively, this has meant their particular notion of Christianity.

Such claims may not ultimately prevail, but within living memory, religious justifications have often been successfully used to justify discrimination of many kinds. Politicians and preachers alike cited Christianity and the Bible to support generations of racial segregation in the U.S. But while the argument that religious beliefs should protect racial discrimination has lost its standing, the broader idea that faith merits exemptions from other anti-discrimination measures lives on.

In the 1983 landmark Supreme Court case of Bob Jones University v. United States, the federal government took the view that the Christian fundamentalist school was not entitled to its federal tax exemption if it maintained its policy against interracial dating. The case became a cause célèbre among the then-budding Christian Right, and was credited by New Right strategist Paul Weyrich and historian Randall Balmer, among others, as the catalyst that politicized conservative evangelicals.¹⁴ The case, which began during the Nixon administration, was used as a political cudgel against Democratic President Jimmy Carter, turning many evangelicals against one of their own.

Bob Jones University argued that to censure an institution over this issue was a violation of religious freedom under the First Amendment. But the Supreme Court ultimately decided against them, declaring: “Government has a fundamental, overriding interest in eradicating racial discrimination in education…[which] substantially outweighs whatever burden denial of tax benefits places on [the University’s] exercise of their religious beliefs.” The Court made clear, however, that its verdict dealt “only with religious schools—not with churches or other purely religious institutions.”¹⁵

Expanding the Definition of Ministry

A more recent Supreme Court case involved the expansion of the definition of religious ministry in ways that serve to broaden the set of institutions that qualify for exemptions from federal laws and regulations. Whereas these exemptions historically applied to a few highly specific cases, now a great range of religiously owned institutions is able to invoke them. There is a distinct trend in this regard, away from individual rights of conscience, and toward the rights of religious institutions.

This was on vivid display in 2015, when the Archbishop Salvatore Cordileone of San Francisco (following Catholic prelates in Cincinnati, Cleveland, Honolulu, and Oakland), declared that teachers—and perhaps all employees—in the Archdiocese’s schools would be required to conform to Catholic teaching in their personal lives.¹⁶ Cordileone wanted unionized employees to accept contract and faculty handbook language that condemned homosexuality, same-sex marriage, abortion, contraception and artificial insemination. He also said that Catholic school employees must not publicly contradict Church teachings.¹⁷ Union leaders were concerned that the Archbishop was attempting to reclassify not only teachers but all employees of the school as part of the church’s ministry.¹⁸

[pullquote]Liberty Institute called for organizations to “religify” their organizational documents in order to fall under the definition of a ministry so they can circumvent civil rights laws.[/pullquote]

As chair of the Subcommittee for the Promotion and Defense of Marriage of the United States Conference of Catholic Bishops (USCCB), Cordileone is a leading culture warrior in the church. He was one of at least 50 prelates who signed the Manhattan Declaration, the historic 2009 manifesto which formally aligned Catholic and evangelical leaders on a shared 21^st Century culture war agenda.¹⁹

The underlying legal justification for Catholic bishops to impose religious doctrine on school employees was the unanimous 2012 decision of the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. In that case, a mainline Lutheran school had fired a kindergarten teacher over issues arising because of a disability, leading to a discrimination claim by the dismissed teacher. The church argued that the government had no right to intervene in its employment decisions because the teacher served in a ministry capacity. The Court agreed, and in so doing, expanded the definition of which employees are covered by the term—and who would then be exempt from normal employment protections.

Religious institutions themselves have long enjoyed a “ministerial exemption” from certain labor laws. Hosanna-Tabor expanded that and opened the door to further expansion. Catholic and evangelical colleges and universities may be among the first to walk through that door, as they are increasingly claiming creeping violations of institutional religious liberty—from concerns about the Obama administration’s “contraception mandate” (which may apply to church-related colleges and universities, the Hobby Lobby decision notwithstanding) to a 2014 ruling by the National Labor Relations Board that permits unionization of employees at religious and other private universities.²⁰

The reasons for religious freedom exemptions in churches’ employment practices are understandable. As Chief Justice John Roberts wrote in his opinion, “Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision…By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.”

However, calling a kindergarten teacher of numerous subjects, including math and social studies, a minister was a significant stretch. The teacher in question spent only a few minutes each day leading students in prayer or teaching religion for short intervals across the week. Nevertheless, this was sufficient in the view of the court, which decided not to “adopt a rigid formula for deciding when an employee qualifies as a minister.”²¹

Advocates for expanded exemptions for religious institutions in this area, such as the Institutional Religious Freedom Alliance, saw the decision as a “stunning victory” and a departure from “the usual focus on the religious rights of individuals.”²²

Still, much was left unresolved. Although the decision drew a bright line—that government may not interfere with personnel decisions regarding persons in ministry—the extent to which religiously-affiliated institutions such as schools, charities, hospitals, and perhaps even for-profit businesses can define employees as ministers is now a fair question. And it’s one that’s certain to be tested as conservative religious movement leaders seek to carve out zones of exemption from the advance of secular law. leaders certainly see many opportunities in broadening the legal definition of ministry.

Dr. C. Peter Wagner, founder of the dominionist New Apostolic Reformation and a longtime professor of church growth at Fuller Theological Seminary,²³ observed that “not only churches, but ministries supported by the church are included in [the Hosanna-Tabor] ruling. Schools are specifically mentioned, but how about a number of other kinds of ministries attached to our churches and apostolic networks? I would think they would fall under the same umbrella.”²⁴

Mormon Elder Dallin H. Oaks, a member of the Quorum of the Twelve Apostles of the church, said he found “comfort” in Hosanna-Tabor, against the “threat” of governmental actions that he believes “are overshadowing the free exercise of religion by making it subordinate to other newly found ‘civil rights.’”²⁵

Cardinal Timothy Dolan of New York came to a similar conclusion when he discussed the core issue in the landmark case of Burwell v. Hobby Lobby Stores, Inc. (discussed below) a few years later. The so-called contraception mandate, he declared, was primarily about “the raw presumption of a bureau of the federal government to define a church’s minister, ministry, message and meaning.”²⁶

This year, Jeff Mateer of the Liberty Institute, a Texas-based legal advocacy group, began preparing manuals for what the Institute suggested is an inevitable wave of anti-religious legal attacks against everything from churches to frat houses to for-profit corporations.²⁷ They called for organizations to “religify” their organizational documents, from bylaws to employee job descriptions, to specifically reflect doctrine so that they may fall under the definition of ministry. This, they suggested, would be part of an inoculation against civil lawsuits and government regulation.²⁸

We have become familiar with how, when the goals of the Christian Right conflict with the rights of others, the conflict is framed as an attack on Christianity or, more broadly, religion. Seen from their perspective, there’s logic to this argument. Conservative Christians have long understood that the origins and trajectory of religious freedom in America run against the hegemony of conservative Christian churches that enjoy a close relationship with the state and its leaders.

Turning Phrases

Many of the contemporary legal struggles rest on the definition of particular terms and phrases originating in federal legislation or Supreme Court decisions. In addition to ministry, one of the key terms on which religious exemptions to state and federal laws now turn is the phrase “sincerely held religious belief.” The current use of the phrase is rooted in the federal 1993 Religious Freedom Restoration Act (RFRA),²⁹ which enjoyed overwhelming support in Congress and was signed into law by President Bill Clinton. RFRA was an answer to the Supreme Court’s 1990 decision in Employment Division v. Smith, which had upheld the right of the State of Oregon to deny unemployment benefits to Native American employees fired for using peyote in a religious ritual. Here Congress sought to restore the rights of Native Americans for whom peyote was part of their religious practice. More broadly, Congress wanted to reaffirm that a person’s sincerely held religious belief may not be substantially burdened unless the government can justify the law with a compelling state interest, and show that the law is narrowly crafted to protect that interest via the “least restrictive means” possible.³⁰

A later Supreme Court decision limited the scope of the law to the federal government, leading some states to pass state-level versions of RFRA.³¹ Most of these laws were simply intended to replace the loss of the federal RFRA, but in the past few years, modified state RFRAs have been introduced with the obvious intention of justifying discrimination against same-sex couples by businesses and even government agencies.

Concepts that meant one thing in the federal RFRA have come to take on new meanings when applied at the state level in the wake of the 2014 Hobby Lobby case (and the related Conestoga Wood Specialties Corp. vs. Burwell). That Supreme Court decision extended, for the first time, religious rights to a “closely held” private corporation, stating that the company—not a church, or school, but a chain of craft stores—did not have to offer certain contraceptives via the company health plan because the owners of the company believed these contraceptives to be abortifacients (a position contradicted by every major medical organization in the country). The Court held that Hobby Lobby was exempt from the Affordable Care Act’s requirement that insurance packages cover these contraceptive options because, as Justice Samuel Alito put it in the majority opinion, requiring the corporation to provide this contraceptive coverage imposed a “substantial burden” on companies’ sincerely held religious beliefs.

The four dissenting justices said the majority opinion expanded the federal RFRA to protect companies in ways unintended by Congress. Justice Ruth Bader Ginsburg wrote, “The court’s expansive notion of corporate personhood invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faiths.” She said, for example, that a company could decide that covering vaccinations or paying the minimum wage violates their religious beliefs. She also noted a past religious freedom challenge from a restaurant chain that didn’t want to serve African-Americans, and that of a photography studio that didn’t want to take pictures at a lesbian couple’s commitment ceremony.

Ginsberg’s concerns are being realized in the efforts to insert “Hobby Lobbyized” provisions into state RFRAs. Conservative supporters of these bills have claimed that the state and federal RFRAs are all the same. This is not only false, but transparently so. The shorthand in the Indiana legislature for the state RFRA was “the Hobby Lobby bill.”³² The fact is that the federal RFRA—and until recently, most state RFRAs—applies only to government actions. The Hobby Lobbyized state RFRAs added language—at the behest of Alliance Defending Freedom, The Becket Fund, the Mormon Church, and allies at the United States Conference of Catholic Bishops—that sought to extend exemptions to third parties, such as corporations and individuals, on the grounds that providing services to LGBTQ people violates their consciences. In some cases the language may be broad enough to claim religious exemptions from standing civil rights laws in the manner that concerned Justice Ginsberg.

Indiana conservatives were open about their goals: they intended the state’s new Religious Freedom Restoration Act to provide a faith-based defense against discrimination claims, should a business decline to provide services on account of their beliefs.³³ But, faced with widespread public outcry, the state’s governor and legislature were compelled to amend the law to explicitly state that their RFRA did not provide a license to discriminate against LGBTQ people. This in turn led to loud objections from Christian Right leaders, who correctly understood that the original bill would do just that. Tony Perkins of the Family Research Council said the clarification made matters worse by forcing “religious businesses and even nonprofits deemed ‘not religious enough’ to participate in wedding ceremonies contrary to their owners’ beliefs. If the government punishes people for living their faith, there are no limits to what government can control.”³⁴

A New Era for Religious Exemptions

As this article was going to press, the Supreme Court recognized marriage equality as a “fundamental right” in the case of Obergefell v. Hodges. The court was silent on the matter of exemptions, but Justice Anthony Kennedy, writing for the 5-4 majority, emphasized that religious institutions and individuals “may continue to advocate” in opposition.

“The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths,” he wrote, “and to their own deep aspirations to continue the family structure they have long revered.”³⁵ The question of what constitutes “proper protection” may well lead to a continuation of the Christian Right’s approach to advocacy for many kinds of religious exemptions, albeit on a vastly altered playing field.

Perkins shed light on this strategy in a column in The Patriot Post:

The clash between religious liberty and same-sex “marriage” continues to explode in businesses across America, where shop owners, B&Bs, and other vendors try to come to grips with the government’s twisted definition of “tolerance.” Faced with losing their jobs, businesses, and life savings, most Christians want to know: isn’t there anything we can do?

There is. In at least 10 states, conservatives are fighting back with a string of Religious Freedom Restoration Acts (RFRAs), [which] give men and women of all faiths a powerful tool to stop the government from walking all over their beliefs on issues like marriage and sexuality.³⁶

There will always be tensions in reconciling religious beliefs with the rights of others, but there will also always be people who will exploit the normal strains of a religiously plural society for their own political ends. The issues of the so-called culture wars have been recast as a battle over the definition of religious liberty. There is a deep, dominionist agenda in play here, with the battle over religious liberty at its cutting edge, and it is not limited to matters before the courts.

We live in theocratic times. Not in the sense that the United States has become a theocracy, but in that the uneasy theocratic coalition we refer to as the Christian Right remains one of the most powerful and dynamic religious and political movements in American history. Like any other large coalition, the interests of the main players are sometimes in conflict. But they remain bound together by a shared opposition to religious pluralism, the rights of individual conscience, and the separation of church and state.Historian and Christian Right theorist Gary North argues that the ratification of the Constitution signified a clean “judicial break from Christian America.” He was referring to the proscription of “religious tests for public office” in Article VI, which he correctly observed erected a “legal barrier to Christian theocracy” that led “directly to the rise of religious pluralism.”³⁷ Article VI is, of course, not the only codified barrier to Christian theocracy. But the theocratic activists of modern America are patient revolutionaries. For the rest of us, learning how to recognize, anticipate, and respond to the Christian Right’s theocratic agenda remains one of the central tasks of our time.