Redefining Religious Liberty

Executive Summary

A highly active, well-funded network of conservative Roman Catholic intellectuals and evangelicals are waging a vigorous challenge to LGBTQ and reproductive rights by charging that both threaten their right-wing definition of “religious liberty.” The Christian Right campaign to redefine “religious liberty” has been limiting women’s reproductive rights for more than a decade and has recently resulted in significant religious exemptions from antidiscrimination laws, same-sex marriage laws, policies regarding contraception and abortion, and educational policies. Religious conservatives have succeeded in reframing the debate, inverting the victim-oppressor dynamic, and broadening support for their agenda.

While the religious liberty debate is a growing front in the ongoing culture wars, it is actually an old argument repurposed for a new context. In the postwar era, the Christian Right defended racial segregation, school prayer, public religious displays, and other religious practices that infringed on the liberties of others by claiming that restrictions on such public acts infringed upon their religious liberty. Then as now, the Christian Right turned antidiscrimination arguments on their heads: instead of African Americans being discriminated against by segregated Christian universities, the universities were being discriminated against by not being allowed to exclude them; instead of public prayers oppressing religious minorities, Christians are being oppressed by not being able to offer them.

In the “religious liberty” framework, the Christian Right attacks access to contraception, access to abortion, same-sex marriage, and antidiscrimination laws—not on moral grounds (e.g., that contraception is morally wrong or that LGBTQ rights violate “family values”) but because they allegedly impinge upon the religious freedoms of others (e.g., by forcing employers to violate their religion by providing contraception coverage).

The nerve center of the conservative “religious liberty” campaign is a small group of conservative Roman Catholic intellectuals and scholars concentrated around the Becket Fund for Religious Liberty, a public interest law firm based in Washington, D.C., and the United States Conference of Catholic Bishops (USCCB). Anthony Picarello, former counsel of the Becket Fund, left in 2007 to serve as USCCB’s general counsel to work against marriage equality. These Roman Catholic organizations are supported by conservative evangelical allies, including organizations such as the Alliance Defending Freedom, Christian Legal Society, and Family Research Council. These alliances were forged in the antichoice movement, which has provided strong turnout of supporters at “religious liberty” events. These alliances were expressed in the Manhattan Declaration, which launched in 2009 when 150 Roman Catholic and evangelical clergy signed a statement to defend “life, marriage and religious liberty.” Examination of these affiliations, history, and current activities makes clear that the campaign to redefine “religious liberty” aims not simply to win religious exemptions to the law, but to contest the authority of secular law itself.

The conservative “religious liberty” campaign’s methods include:

• conducting a PR campaign to convince Americans that religious liberty is under attack and deploying misleading exaggerations to scare voters, for instance, by falsely claiming that churches will be required to sacralize same-sex weddings and employers forced to pay for abortions;
• reframing questions of discrimination (e.g., in the Boy Scouts) as questions of the religious liberty of those who wish to discriminate;
• filing lawsuits to limit LGBTQ rights on religious liberty grounds and exploiting ambiguities in the law to conduct a nationwide litigation campaign;
• exploiting the structural ambiguity in civil rights law that emerges when fundamental rights clash, as that between religious expression and civil rights;
• scaring the public by eliding the differences in legal standards between discrimination against LGBTQ people and discrimination against African Americans and other racial minorities, and suggesting that protections for the latter will be extended to the former;
• influencing legislation to obtain exemptions from antidiscrimination laws, and enabling Christian organizations to discriminate (e.g. student clubs in the Virginia university system);
• limiting access to reproductive health care, first through a series of religious exemptions for abortion and now by attempting to limit insurance coverage for contraceptives under the federal Affordable Care Act;
• attempting to expand existing religious exemptions beyond religious organizations to include private businesses (such as the retailer Hobby Lobby, the plaintiff in a prominent current case); and
• marshaling the support of influential academics such as Douglas Laycock, a distinguished professor at the University of Virginia Law School who successfully argued a key religious liberty case before the U.S. Supreme Court for the Becket Fund, and longtime conservative Catholic campaigner Robert P. George of Princeton University, who was coauthor of the Manhattan Declaration and is a board member of the Becket Fund. They and other scholars provide intellectual leadership for the movement, both within the Christian Right and more broadly.

The “religious liberty” campaign’s influence on contemporary politics and debate is increasingly visible. For example:

• It was a significant topic in the 2012 vice-presidential debate;
• It was the Christian Right’s primary argument opposing same-sex marriage in the North Carolina, Minnesota, and Maine ballot initiatives in the fall 2012;
• The Ethics and Public Policy Center in Washington D.C. is developing religious liberty caucuses in state legislatures to promote the Christian Right public policy agenda opposing LGBTQ and reproductive rights (At least nine states currently have such caucuses);
• The conservative “religious liberty” argument has been instrumental in winning exemptions from same-sex marriage laws and reducing women’s access to contraception coverage;
• While a June 2012 survey by the Public Religion Research Institute found only 39 percent of Americans believe religious freedom is threatened, polls also show the argument is effective when the Right sows confusion among the public; for instance, in suggesting that ministers would be forced to marry LGBTQ couples if a state legalizes same-sex marriage.

Aside from its power in legal arguments, the Right’s “religious liberty” claims appeal to both conservative and moderate Christians by resonating with core martyrdom and persecution narratives. Moreover, among Roman Catholics, it resonates with the memory of Protestant separationists’ anti-Catholicism; among moderates, it resonates with the American civic value of religious freedom. Finally, the Right’s “religious liberty” arguments have won intellectual respectability even among some liberals. Unlike the Christian Right’s usual claims, grounded in religious dogma, the conservative “religious liberty” argument appeals to liberal values enshrined in the Constitution and has the support of respected academics. Liberals may support many of these “religious liberty” causes and key players in the campaign to redefine religious liberty—such as the Becket Fund—have litigated in defense of Muslims as well as Christians. And there is a strong popular appeal to some basic arguments; after all, few want to abridge religious freedom.

Yet there should be no mistake: the Right’s “religious liberty” campaign is a key front in the broader culture war designed to fight the same social battles on new-sounding terms, and is part of a movement with old roots in Christian Dominionism (a form of theocracy) and ties to conservative Catholics who launched the antichoice movement. Its deliberate inversion of victim-oppressor dynamic has led to limits on women’s and LGBTQ people’s real freedoms in the name of defending chimerical ones. Proponents may sincerely believe that they are defending religious freedom, but the campaign’s endgame is a “Christian nation” defined in exclusively conservative terms. And it is thus far inadequately opposed.

To contest the Right’s “religious liberty” argument, social justice forces must publicize the existence of a coordinated campaign to redefine religious liberty, support a faith-based response to it, counter common misinformation, contest the rhetorical frame of “religious liberty,” foster robust academic responses, and take a pro-active rather than reactive political role. Specifically, this report recommends that social justice advocates:

1. Define and Publicize the Coordinated Campaign to Redefine Religious Liberty. While grassroots evangelicals are active in the conservative “religious liberty” campaign against LGBTQ and reproductive rights, it is a coordinated fight led by well-established rightwing institutions like the Becket Fund and Alliance Defending Freedom. The Roman Catholic Church hierarchy and conservative Catholics are important thought leaders for the campaign. The evangelical/Roman Catholic alliance builds on relationships forged in the antichoice movement.
2. Organize A Unified Response There is need for further mapping, coordinating, and building out alliances among advocates countering the Right’s campaign. We need to strengthen the alliance between prochoice and LGBTQ forces, and ally with emerging faith-based responses. Alliances must also be made with liberal business owners and libertarians; this can increase the effectiveness of existing efforts.
3. Counter Misinformation Many conservative “religious liberty” claims rely on falsehoods and scare tactics. Simply put, clergy will never be forced to perform a same-sex marriage. Social justice advocates must learn and be able to counter the Right’s go-to examples of spurious “religious liberty” violations. Understanding and clarifying the Right’s use of the martyr narrative and inversion of the victim-oppressor dynamic is a good start to countering right-wing rhetoric.
4. Reclaim the Religious Liberty Frame The term “religious liberty,” like the phrase “family values,” has become a code for the larger culture wars. While religious belief and expression are valid and protected constitutional claims, religious liberty is not the freedom to discriminate and harm others. It does not allow a boss to tell an employee what health care they can obtain, taking away the employee’s ability to make moral and religious choices. Nor does sexual and gender equality have to be pitted against religious liberty. The clash is not just between secularism and religion, or equality and religion, but of competing religious values. Challenging the conservative frame also means distinguishing between commercial and religious acts, and valuing competing civil rights; an effective response requires sustained intellectual and legal challenges to the Right’s argument.
5. Develop Academic Responses Social justice advocates must take seriously the influence of right-wing academics on policy and public debate. Religious freedom is a complex topic, which can too often become co-opted by the conservative “religious liberty” campaign. That this happens, often unknowingly, to fair-minded academics and legal scholars is something that can be reversed by raising awareness of the issue, including with academic conferences on the topic.
6. Leverage Religious Communities We must build on existing interfaith work to counter the conservative “religious liberty” narrative, informing and organizing more in faith communities. The social justice community must create unity by issuing a common “Call to Conscience” of religious people seeking to maintain their religious liberty against the conservative proposals and policies. LGBTQ faith communities, Jewish and progressive faith organizations, in particular, must be supported in countering the Right’s claims about what religious liberty means.
7. Ongoing Research and Monitoring Social justice advocates and defenders of true religious freedom must become better informed about the right-wing campaign to redefine religious liberty—including its principal players, strategies, and vulnerabilities. Ongoing investigative research into U.S. conservatives’ use of religious liberty legal and rhetorical strategies, both domestically and abroad, is needed to keep advocates and journalists informed about strategically significant developments. Moreover, we must track the influence of conservative academics on policy and public debate.