Happy Religious Freedom Day! January 16 commemorates the adoption in 1786 of Thomas Jefferson’s Virginia Statute of Religious Freedom, a pioneering law protecting religious faith and practice. Since then, the contours of and limits to religious liberty in our country have, like all other constitutional rights, evolved.
Since the at least the 1960s, state laws often have allowed people to claim an exemption from some secular laws in some circumstances based on their personal religious objection. Conscience clauses are common in education (opt-outs for vaccinations and sex education), health care (refusing to participate in abortions), and in other areas.
I had us discuss this topic in 2013 because conservatives had begun a political campaign to expand the scope of what they term ‘religious freedom” laws into new areas, like marriage equality and LGBT rights. I timed our meeting to coincide with oral arguments in the Burwell vs. Hobby Lobby” Supreme Court case. In that case, the owners of a big craft chain store argued that their first amendment religious liberty included the right to disobey the Obamacare mandate to cover all effective forms of contraception in its employee health insurance plan.
A few months after we met, SCOTUS ruled in Hobby Lobby’s favor. The Court’s reasoning was…innovative, to say the least. It said that the religious freedom of the companies’ owners extends through the corporate veil, all the way to the earned benefits of its employees. Hobby Lobby had the first amendment right, the Court said, to dictate which forms of contraception its health care plan would pay for, solely on the basis of its owners’ personal religious beliefs. Progressives immediately grew suspicious that SCOTUS had opened the door to new corporate abuses of power and/or new ways for conservatives to ignore law they didn’t like.
Don’t worry, said the Court. This ruling really is a narrow one. It applies only to “closely-held” companies and only to the specific forms of birth control that Hobby Lobby’s owners believed were immoral. If in the future other claimants tried to use this decision to make more outlandish religious claims – outlandish in the Court’s eyes, I guess – SCOTUS would not be receptive.
Well, guess what? In March 2016, SCOTUS will hear a new case in which a religious non-profit employer wants out of the Obamacare contraception mandate, too. The Court might use its ruling to open the religious conscience exemption door even wider – perhaps much wider. And it’s not just the Supreme Court. Since Hobby Lobby, congressional conservatives have introduced the First Amendment Defense Act and the Marriage and Religious Freedom Act, both designed to protect conscientious religious objectors to federal LGBT laws. Ted Cruz and Marco Rubio cosponsored both these bills and Donald Trump just said he would sign the latter. On the state level, GOP-controlled governments have tried to enact similar laws.
You see my motive for this topic revisit. Maybe all of these efforts to expand religious conscience laws to protect lost culture war battles will fade away or be contained by ether the courts or public opinion. (Maybe some are even sensible – we shouldn’t dismiss the whole idea of expanding conscience clauses out of hand, IMO). But, I doubt it. I think conservatives’ conscience clause/ religious freedom movement is major a new frontier of our 21st century culture wars.
On Monday, I’ll open our meeting with a little more info on what conservatives have planned in this area and a bit of the reasoning supporters and opponents use.
Discussion Questions –
- What is a religious conscience clause and what is its moral and constitutional justification? Historically, what were their limits?
- How did (or, did) the Hobby Lobby ruling change the limits of religious conscience?
- How do conservatives want to expand this part of the law? Do their ideas have merit?
- Is DavidG wrong: Are conservatives not going to keep the pedal to the metal on this issue?
- Are there other ways to split the baby on these tough moral questions; e.g., more federalism, or defining the limits to religious exemptions in a single, federal law?
SUGGESTED BACKGROUND READING –
- A short history of use of these types of laws in the USA. Recommended
- What’s coming in 2016:
- What progressives fear/want:
- Religious conscience movement is our new culture war battlefield. The article that prompted this topic idea.
- GOP-run states are passing laws that allow people to claim exemptions from a wide range of laws they don’t like on the basis of their religious beliefs. Recommended.
- What conservatives fear/want:
Next Week: Solutions to California’s Water Woes (yeah, yeah, it’s raining).