Opinions differ, to put it mildly, on the meaning of religious liberty today. A book on Hinduism by Wendy Doniger of the University of Chicago has been pulped or is being pulped right now by Penguin India following a lawsuit against the publisher by a conservative Hindu nationalist, on grounds of “offending religious feelings of Hindus,” according to stories in the Guardian. In Kansas, it seems some Republicans in the Kansas Senate are backing away from support for a so-called “protecting religious freedom regarding marriage” bill just passed by the Kansas House (which a Slate blogger rightly called an abomination reminiscent of the Jim Crow era). Politicians from President Obama to Bobby Jindal to your local legislator are busy presenting their versions of what religious liberty means. Everyone says they want to uphold religious liberty.
Is there a formula to help navigate the competing claims of Hobby Lobby, the Freedom From Religion Foundation, and all the rest? The First Amendment is our canonical American text on freedom, and it may seem to some too broad and vague. But Douglas Laycock of the University of Virginia has presented decisive evidence that what the Founders intended is not consistent with the right-wing claims that “the government can openly support religion so long as it doesn’t prefer one religion over others.” The legislative record, Laycock notes, “tells a very different tale. A lawyer drafting the right-wing view might write: ‘Congress shall make no law establishing any particular denomination of religion in preference to another.’ In fact that is exactly how it was written in 1789 by members of the first Senate. But the Senate rejected that version and two similar versions that explicitly stated the right-wing view….A conference committee produced the version ultimately ratified as the First Amendment: ‘Congress shall make no law respecting an establishment of religion.’ This is the broadest version considered by either house [in 1789]. It speaks generically of ‘religion,’ not ‘a religion,’ ‘a national religion,’ or ‘any particular denomination of religion.’ It forbids any law…that relates to an establishment in any way. In light of the alternatives Congress considered and rejected, it is best understood as requiring the government to be entirely neutral towards religion….Here, the intent of the framers is as clear as it ever gets; the right wing distorts that intent to suit its own preferences.”
Those not happy with Laycock’s exposition of the original meaning of the First Amendment (written for a USA Today column in 1985 but fresh as a daisy, and reprinted in Religious Liberty: Overviews and History, 2010, pp. 529-30) might say very well, but times have changed and we are now faced with a horrifying war on religious freedom as well as moral values. I might wonder “so what’s new,” but let me say instead that invidious (if not hateful) discrimination against whole classes of people is not the way to defend religious freedom, and is increasingly indefensible–as the Kansas Senate, for example, is apparently grasping, and as judges and legislators in Kentucky, Virginia, and Indiana have decided this week as the case against same-sex marriage collapses.
Should I give an appearance of evenhandedness and acknowledge that President Obama has a major blind spot regarding religious liberty, as columnist Kathleen Parker of the Washington Post claimed recently? The President may have blind spots, but Parker does not seem to be familiar enough with the facts on the ground re the Little Sisters of the Poor case to do anything other than throw rhetorical bricks at the President. No one is going to compel the Little Sisters to provide abortifacients, or even birth control, to their employees. The somewhat more challenging issues come in the Hobby Lobby and Conestoga Wood cases, where the latest government brief (Feb. 10, as respondent to Conestoga) has crystallized a hard-to-impeach version of the questions presented: “1. Whether the Religious Freedom Restoration Act of 1993…allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners. 2. Whether the requirement that non-exempted, non-grandfathered group health plans include coverage of contraceptives violates the Free Exercise Clause of the First Amendment.”
The government brief has it just right. The real issue here, and in so many other putative “religious liberty” cases and controversies, is whose freedom counts, and who bears the burden when some complain that their consciences are violated by a generally applicable public law. I would say it is clear that a for-profit corporation is an inanimate creature brought into being by state charter, and has no tender conscience to offend. A religiously-based nonprofit is quite different, and accommodations should often be made so long as the Little Sisters, the Vedanta Society, the Presbyterian Youth group, the synagogue, or similar groups attest to their conscientious objections–which may indeed involve writing some kind of “permission slip,” if you want to put it that way. Such cases can be tricky; however the Hobby Lobby, Conestoga Wood, and for that matter Town of Greece v. Galloway cases ought to be disposed of easily.
Does the Supreme Court relish sorting all this out? They do face some vexing, difficult cases, but if five or more justices can tune out the faux-outrage ginned up by the political right over supposed violations of religious liberty, and focus on upholding “neutral laws of general applicability” with the usual exceptions and accommodations where warranted, their yoke will be easy and their burden quite light.