Contemporary Hostility to the Free Exercise of Religion

Religious liberty is far down the path towards becoming a party-line culture war issue.

By Douglas Laycock|March 3, 2016

Religious liberty is far down the path towards becoming a party-line culture war issue. And that is a disaster for religious liberty.
In extended questions and answers about religious liberty in the Republican presidential debate on February 25, the only issues mentioned were contraception and same-sex marriage. And those two issues get nearly all the publicity, from Hobby Lobby to the state of Indiana to the Little Sisters of the Poor. Conscientious refusals to assist with abortion are well protected by state and federal law and do not get much press, but the low-level conflict over these protections occurs along the same culture war lines.
Americans rarely hear about the far more common range of religious liberty claims that do not present culture war issues—about Sabbath observers, Amish buggies, Jewish and Muslim beards, Native American long hair, new churches zoned out of town, existing churches forbidden to feed the homeless, and similar conflicts between religious faith and stubborn bureaucracies.

Few Americans are aware of the Jehovah’s Witness woman who died for her faith because Kansas Medicaid refused to pay for a bloodless liver transplant—not because it was more expensive (it was actually cheaper), but because it would be performed in Omaha! Kansas does not pay for out-of-state medical care.
For groups committed to gay rights, reproductive freedom, and women’s health care, conservative religions are the enemy. And if conservative religions are the enemy, then it might follow that religious liberty is a bad thing, because it empowers the enemy. Not many people say this straight out. But a few say it in public, and more say it in private. And millions of Americans reflexively oppose any religious liberty claim that would carve out an occasional exception to any other right they care about more.
The gay-rights cases—there are only a handful—all arise in special contexts, mostly involving either counselors or weddings. No sane same-sex couple wants a counselor who thinks their whole relationship violates God’s law. And those few business owners who refuse to assist with same-sex weddings believe that marriage is an inherently religious relationship, and therefore, that a wedding is an inherently religious event. But their lawyers have wholly failed to communicate any difference between helping to make this religious ceremony the best it can be—assisting with a sacrilege, in the objectors’ view—and selling ordinary goods and services to a gay customer.
Hobby Lobby and Little Sisters of the Poor, the two contraception cases, are very different from each other. The owners of Hobby Lobby had to pay in advance for free and unlimited access to what they believe to be abortifacients. The Little Sisters do not have to pay, contract, arrange, or refer for anything they object to. Yet nearly all the activist groups are lined up in the same positions in both cases, refusing to make any distinctions. The courts have mostly seen the difference, and I expect the Supreme Court will too.
Conscience rights for medical providers are controversial in the pro-choice community. People on the pro-choice side want choice for pregnant women, but they do not want choice for doctors, nurses, or hospitals.
Their solution to the problem of conscience is that there should be no pro-life obstetricians or gynecologists, no pro-life nurses on the obstetrics ward, no medical provider anywhere who might have to step aside and let someone else treat a patient who wants an abortion. As one of them summarizes: ”Qualms about abortion, sterilization, and birth control? Do not practice women’s health.”
Each of these conflicts is a bitter battle between deeply held moral commitments. The level of hostility is one way in which these fights are unlike most religious liberty conflicts. Another difference is the reciprocal nature of the conflict: each side wants to regulate much that the other side considers private, personal, and essential to identity. What each side considers a grave evil, the other side considers a fundamental human right.
The pro-life groups want to eliminate abortions. The traditional marriage groups want to eliminate same-sex marriages. The pro-choice and marriage-equality groups want conservative believers not just to leave them alone, but to affirmatively assist with abortions and weddings—or else leave any occupation that might ever be relevant.
Neither side is going to change its mind about abortion. You cannot compromise with what you think is murder, and you cannot compromise with what you think is the physical invasion and commandeering of your body and your life.
The marriage fight is different. Unlike abortion, marriage equality has no victims. The polling data clearly suggests that we will not be fighting about marriage forty years from now the way we fight about abortion forty years after Roe v. Wade.
It is one thing if religious believers change their minds about a moral issue, or if those who cannot change their minds eventually die of natural causes and a new generation holds a different view. It is a very different thing if those who cannot change their mind are sued, fined, forced to violate their conscience, and excluded from occupations if they refuse.
The first path is consistent with liberty for all. The second path causes the very kinds of human suffering that religious liberty is designed to avoid. And the increasing public perception that religious liberty is just a front for opposition to abortion, contraception, and marriage equality endangers religious liberty across the board.
Barnes, Robert. “At the Supreme Court, ‘Little Sisters of the Poor’ has a ring to it.” Washington Post, October 18, 2015, Courts & Law.

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).
Cantor, Julia D. “Conscientious Objection Gone Awry—Restoring Selfless Professionalism in Medicine.” New England Journal of Medicine 360 (2009):1484-1485.
Cooper, Brad. “Jehovah’s Witness Woman Who Needed Bloodless Liver Transplant Dies.” Kansas City Star, October 25, 2012.

Lund, Christopher C. “Keeping Hobby Lobby in Perspective.” In The Rise of Corporate Religious Libert, edited by Micah Schwartzman et al. Oxford: Oxford University Press, 2015.

For examples of open hostility to religious liberty, see Douglas Laycock, “Religious Liberty and the Culture Wars,” University of Illinois Law Review 2014 (June 2014), 839-880. See also Douglas Laycock, “The Campaign Against Religious Liberty,” in The Rise of Corporate Religious Liberty, edited by Micah Schwartzman et al., 1st edition (Oxford: Oxford University Press, 2016).
Federal protections for refusal to assist with abortions are reviewed in Dep’t of Health and Human Services, Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws. 76 Fed. Reg. 9968, 9968-70 (Feb., 23, 2011). Both state and federal protections are summarized in Robin Fretwell Wilson, Essay: The Limits of Conscience: Moral Clashes over Deeply Divisive Healthcare Procedures, 34 Am. J.L. & Med. 41, 47-52 (2008).

Author, Douglas Laycock, (J.D., University of Chicago Law School, 1973) is Robert E. Scott Distinguished Professor of Law at the University of Virginia and Alice McKean Young Regents Chair in Law Emeritus at the University of Texas. A leading authority on the law of remedies and on the law of religious liberty, Prof. Laycock has testified before Congress and argued cases before the U.S. Supreme Court. He has published two volumes of a four-volume collection of his writings on religious liberty. He is vice president of the American Law Institute.