The messy reality of religious liberty in America

The wedding cake on display at Masterpiece Cakeshop. AP Photo/Brennan Linsley

On Tuesday, Dec. 5, a visibly divided U.S. Supreme Court tackled the contentious issue of religious freedom when it heard oral arguments in “Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.” The arguments appeared to evenly split the four conservative justices from the four liberals. Justice Anthony Kennedy, who is often a swing vote, seemed to side with the baker.

The case involves a Denver bakery owner who refused to make a wedding cake for a gay couple, citing his religious belief that marriage can be between only a man and woman. The couple sued, and a lower court ruled the baker violated Colorado’s public accommodations law. The statute forbids discrimination by businesses serving the public, including on the basis of sexual orientation.

In their appeal to the Supreme Court, the bakery’s lawyers have emphasized free speech issues by presenting the baker as an artist who has a right to choose how he expresses himself. But religious freedom remains central to the case. A key question is whether a business owner must provide services that conflict with his or her religious beliefs.

This divisive case highlights the vast difference between the reality and the rhetoric of religious freedom, which is often considered to be the ideal that promotes harmony and equality. But, history suggests that it does lead to more conflict.

The rhetoric: Equality and goodwill

It is true that throughout U.S. history, Americans have idealized religious freedom and imagined that it brings harmony.

Text of the First Amendment. Jack Mayer, CC BY-NC-SA

The First Amendment’s clauses guaranteeing religious free exercise and preventing establishment of an official church seemed to promise less discord to the Founding Fathers. In an 1802 letter, Thomas Jefferson, for example, wrote that “religion is a matter which lies solely between Man & his God.” As the nation’s third president, he argued that a “wall of separation between Church & State” would give all people equally the right to free conscience.

Later presidents echoed the view that religious freedom brings equality and unity by preventing government from favoring particular faiths.

Before his election in 1960, John F. Kennedy tried to ease fears about his Catholicism by affirming religious liberty. Kennedy believed this freedom kept one group from oppressing another. It formed the basis of a society, he declared, where people would “refrain from those attitudes of disdain and division which have so often marred their works in the past, and promote instead the American ideal of brotherhood.”

In the early 1990s, George H.W. Bush identified religious liberty as the basis for other rights. He credited it as a major reason for the vibrancy of American society.

The reality: Conflict and debate

But, the promised harmony has proved elusive. Scholars such as Steven K. Green and Tisa Wenger have documented arguments about religious freedom throughout U.S. history.

Minority communities, ranging from Catholics to Mormons, have fought to have their traditions and customs recognized as religious. As I show in my work on pluralism, Americans have debated what constitutes a religious expression rather than a cultural practice. People have also argued whether religious expression can extend into political, social and business interactions.

These debates have required the intervention of the courts and have often ended at the Supreme Court. Thus, a right intended to free Americans from government has instead necessitated frequent involvement of a major government institution.

Further complicating matters, the Supreme Court has changed its position over time. Its evolving interpretations show how religious freedom debates create shifting categories of winners and losers.

To the courts

Like Masterpiece Cakeshop, one of the Supreme Court’s first religious liberty cases involved marriage. In 1878, a Mormon resident of the Utah territory sued the federal government after he was charged with bigamy. He argued that the law violated his religious liberty by criminalizing his polygamous marriage. The Supreme Court disagreed. In Reynolds v. United States, the court ruled that the First Amendment guaranteed only freedom of belief, not freedom of practice.

In the 20th century, the Supreme Court showed greater sympathy to religious liberty claims. In several cases – including one brought by Jehovah’s Witnesses challenging a statute requiring a permit for public evangelizing and another by an Amish community that objected to Wisconsin’s compulsory public school law – justices sided with those who claimed their freedom was violated.

That changed in 1990. The court ruled against two men who lost their jobs after using peyote, the cactus, which has hallucinogenic properties and has long been used in Native American religious practices. Because they were fired for drug use, the men were denied unemployment benefits. They claimed that as members of a Native American church, they used the drug for religious purposes.

United States Supreme Court. Josh, CC BY-NC-ND

Moving away from earlier decisions, justices ruled that religious belief was not a ground for refusing to obey laws “prohibiting conduct that the State is free to regulate.”

New century, new conflicts

The peyote case set the stage for Masterpiece Cakeshop. It was in response to the case that Congress passed the Religious Freedom Restoration Act (RFRA) of 1993. It required that laws restricting religious expression must show that they serve a compelling need.

RFRA was central in the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby. That contentious split ruling allowed small, closely held companies the right to deny contraceptive benefits mandated by the Affordable Care Act on the grounds of protecting their owners’ religious liberty.

Similarly, in October 2017, the Trump administration invoked freedom of religion when it allowed all employers a religious exemption to the contraception coverage requirement in the Affordable Care Act.

Critics saw that policy change as an attack on women’s rights. Reaction to it on both sides again showed that government involvement in debates about religious freedom invariably produces winners and losers.

Given our polarized society and the division among the Supreme Court justices today, this pattern will continue, whatever the verdict is.

This is an updated version of an article first published on Nov. 28, 2017.

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