A few blocks from my apartment, a neighbor has displayed a placard proclaiming “Defend Religious Liberty.” These words could encompass a range of meanings and raise any number of questions. What, exactly, does religious liberty entail? Who claims it? Who attacks it? But no one is left wondering for long, as the graphics define the intent of the sign more explicitly. Behind the capitalized words, an eagle shares space with an American flag and a cross. Defending religious liberty in the United States, the illustration bellows, is patriotic. And it means protecting Christianity.
This sign, I think, signifies the key issue for liberals in the wake of the Supreme Court’s 2014 term major religion decisions—Burwell v. Hobby Lobby, Wheaton College v. Burwell, and Town of Greece v. Galloway. It helps address why, as Winnifred Fallers Sullivan asked in an earlier post, liberals “can both be in favor of religious freedom for all and at the same time deny that freedom to Hobby Lobby and Wheaton College.”
The core concern is not with the mixing of religion and profit, or sexual matters. Instead, it is a gnawing sense of unease about the solicitude granted to the type of religion that has long been powerful, but is presented by its adherents as marginalized; in short, the problem lies in the twin-set of power and privilege.
When conservative Protestant business owners resisted following the provisions of the Affordable Care Act; when an evangelical college resisted completing a bureaucratic form; and when the town of Greece, New York, resisted viewing a recent log of Christian prayers as problematic, they expressed an entitlement to dictate the terms of interaction between themselves and American society. Taken together, these three cases not only defer to the creeds of certain forms of Christianity but also enable these worldviews to penetrate public arenas that affect other people.
This stands in stark contrast to the approach required of members of minority faiths under the same constitutional order in the United States. The religious freedom sought—and acquired—in last term’s religion cases ignores the very real ways in which minority groups adjust their practices or take financial losses to live in a pluralistic, religiously diverse nation.
In fact, when Justice Ruth Bader Ginsburg lauded Justice Elena Kagan’s Town of Greece dissent this summer, she hailed Kagan’s view that “nobody should be an outsider.” This is a “sensitivity” she thinks Kagan possesses—in contrast to the court’s majority—because she has experience as a religious outsider in America and within her own religious tradition. Liberal religious freedom serves as an argument for respecting, rather than resenting, the minority experience of majority religion.
The point is not whether many American believers from a variety of traditions have failed to receive exemptions for their religious needs—in fact, many have. But from the liberal perspective, successful claims for religious freedom should not burden third parties or attempt to force civil structures to conform to religious worldviews.
What does this mean?
In Hobby Lobby, the majority and dissent tussle over the implications of this decision for an array of medical situations that other religious business owners might contest covering through their insurance programs. What would happen, the dissent asks, if Jehovah’s Witnesses wanted to opt out from covering blood transfusions; Christian Scientists from vaccinations; Jews, Muslims, and Hindus from medicine made with gelatin; Scientologists from antidepressants? The majority waves away this concern, remarking that surely those are different—more significant, they imply—and the government’s interest in making sure Americans have access to those other services would lead to a different decision. Hobby Lobby, they wrote, is limited. It merely applied to four forms of birth control.
But this reasoning is problematic for both legal and religious reasons.
First, it makes no sense within the logic the majority uses to extricate the business owners from covering birth control in Hobby Lobby. The Court’s opinion acknowledges that the government has a compelling interest in expanding access to contraception. The legal problem lies in whether it is accomplished by the least restrictive means.
If the government has a compelling interest in ensuring surgeries occur without tussles over the acceptability of blood transfusions, why would a lawsuit contesting an employer contribution to insurance that covers blood transfusions be a problem? Surely, deferring the payment to the government, as permitted by the Hobby Lobby decision, in the pursuit of finding a less restrictive means of accomplishing the state’s compelling interest, would remain the best possible solution.
Second, and more importantly, the wrangling over what other religious business owners might want fundamentally misses the real reasons those lawsuits are unlikely to get off the ground. Minority religions have generally accommodated majority practices, even at financial cost. The majority turns to Braunfeld v. Brown, a 1961 case in which Orthodox Jewish merchants wanted an exemption from Sunday closing laws, to assert that a profit-making enterprise can have religious interests. But the court denied the retailers a pass on such laws. If minorities must make accommodations to the majority, even at significant financial cost, why can’t majority religions do the same?
Indeed, the very existence of such Sunday closing laws (at least through the mid-twentieth century) demonstrates the ways in which Christianity has infused itself into both public culture and the jurisprudential assessment of other religions.
To find a more recent example, we need only to turn to October’s oral arguments in Holt v. Hobbs. The case concerns an Alabama prisoner who, as a Muslim, wanted to grow a beard for religious reasons. While a full beard would have been ideal, the inmate determined that a half-inch beard would be acceptable. Justice Antonin Scalia objected to the petitioner’s willingness to compromise over the length. This bothered Scalia because, he proclaimed, “religious beliefs are not reasonable.” More specifically, “religious beliefs are categorical.”
This may be true of some faiths and denominations, but it is not uncontested. Plenty of theological ink has been spilled over the very nature of religious ideas and beliefs. What counts as eternal truth rather than historical development, or unequivocal doctrine rather than conditional stipulation, varies considerably within and between religions. To assert that religion must be categorical is to impose a very particular view of religion onto all religions.
It is also a willful blindness to the compromises endemic to religious life in a pluralist society. In fact, being reasonable is precisely the space consigned to minority religions in the United States. There have been groups who sustained themselves by seeming unreasonable to many other Americans—note Jehovah’s Witnesses proselytizing, loudly, from boats and on the streets or refusing to say the pledge of allegiance out of principled conviction in the 1940s. But more frequently, religious people compromise quietly. Mormons do not proselytize in the military; Sikh men remove their turbans to acquire state identification; Mennonite conscientious objectors pay taxes that support war; and Muslim prisoners eat vegetarian, rather than halal, food.
Thus, pure (or possibly “unreasonable”) religious devotion often entails economic and social sacrifice. To take a quotidian example, the American calendar affects believers in radically different ways. December 25 is the federal holiday delineating time for the celebration of Christmas. But in 2015, an Orthodox Christian needed to request Wednesday, January 7 off from work to spend Christmas in church and with family. An observant Jew who does not work on Jewish holidays will often need to take off at least 13 additional days of work. A Muslim baseball player will need to either sit out day games, or play while fasting, when Ramadan falls in the summer as it did in 2014, and will do again in 2015.
The most basic organizing principle of daily life—the calendar—can discriminate. But this is most visible to those who feel its inequities, not to those for whom the schedule follows their practice.
Consider how the courts might handle an alternative scenario that mirrors the claims in Hobby Lobby, but lacks the gendered dimension of contraception. Imagine that a Muslim family owned a business and wanted exemptions from interest on business loans on the grounds that Islamic banking laws proscribe charging interest in certain circumstances. It seems unlikely that this would prevail in court. In Braunfeld and United States v. Lee, precedents cited in Hobby Lobby, Orthodox Jewish merchants and an Amish farmer lost their bids for religious accommodation to Sunday closing laws and paying into Social Security, respectively. The court dismissed these requests as too insignificant (the weekly loss of a day’s sales) and too significant (the tax system) to merit intervention.
In contrast, the court has developed a knack for justifying practices familiar to the nation’s Christian majority. Framed as historical artifacts, Sunday closing laws and sectarian prayer at city council meetings simply befit a well-ordered society. In this way, the court naturalizes certain forms of Christianity which in turn codes other religious needs as deviant and dangerous. Hence, the court is likely to greet an argument for an alternative banking system (or an unwillingness to provide health insurance that covered blood transfusions) the same way it handled Braunfeld and Lee: by acknowledging the existence of a conflict between religious belief and government needs but shrugging off the need to reconcile or mitigate that conflict.
Finally, religions vary, and theologies express very different expectations for the relationship between religion and the civil state. Not every faith (or denomination) assumes it should alter civil society to fit its specific doctrines and practices. Seventh-day Adventists are stalwart advocates of separation of church and state. Judaism and Islam both have legal codes that govern all arenas of life, from holiday requirements to inheritance. Still, both Judaism and Islam recognize civil and religious spheres as distinct, if sometimes overlapping. The Talmud, the compendium of rabbinic law, for example, instructs dina d’malchuta dina, “the law of the land is the law.” Thus, in contrast to Christians who seek to build a Kingdom of God, Jews approach civil societies without expecting to mold civil law to Jewish law.
When liberals look askance at conservative religious groups that resist covering certain types of birth control or completing forms, they are not rejecting the religious claim as insufficiently progressive. They’re puzzled by deference to claims about burdens that are less direct and murkier than those experienced by members of minority religious groups who bear the burden of operating within a system that caters to dominant religious commitments.
When a bipartisan Congress passed the Religious Freedom Restoration Act, its intent seemed to be extending the protective veil around free exercise to minority and unfamiliar religious practices. The result, however, has been somewhat different. Hobby Lobby’s owners adhere to a religious faith that is far more mainstream and familiar to most Americans than nineteenth-century Mormonism, mid-twentieth-century Judaism, or the late-twentieth-century Native American Church were when they requested—and failed to receive—constitutional reprieve. Evangelical Christianity lacks neither numbers nor access to power in the contemporary United States.
As with the Amish who prevailed in Wisconsin v. Yoder, earning exemptions from state compulsory education laws, white Protestant Christian businessmen enjoy the privilege of being perceived as “productive and very law abiding members of society.” They can advocate for themselves with little concern for appearing reasonable, precisely because they fall well within historical norms of mainstream American religion.
When liberals object to the use of the profit-making corporation to pursue religious ends, they are recognizing the ways in which doing so reflects privilege and bespeaks power. If, as scholars of religion, we can see how religion infuses daily life far beyond the institutional structure of the church (or synagogue, or mosque, or gurdwara, etc.), we can also recognize the ways in which infusing arenas that are not obviously religious with religion can be exclusionary, discomfiting, and discriminatory—to believers and non-believers alike.
Pluralism sits at the center of the conflict over Hobby Lobby, Wheaton College, and Town of Greece. Does pluralism mean everyone gets exactly what he or she wants, or does pluralism mean giving up a little to be part of a larger whole? Who gives up more? Does pluralism allow religious groups to force people to operate according to their principles, or does pluralism limit such coercion?
There are no easy answers to these questions. But there is no reason to think that liberals betray an intolerance to religion when they question how it is that some religions enjoy privileges and power over people and spaces that others do not.
Thank you to Joshua Block, Maryam Kashani, Rachel Lindsey, and Sivan Zakai for comments on earlier drafts of this essay.
I don’t have any disagreement with the premise that religious freedom claims, in the US at least, don’t occur on a level playing field. As the post notes, many practices and artifacts are now considered as part of tradition (Pledge of Allegiance, legislative prayers, etc.) despite their overtly sectarian origins.
However I do have one major question and a few other more minor quibbles. My main question has to do with the function of the First Amendment: is it to equalize the playing field of religious believers? In my view, it does not. The social and power configurations of religion claims of course are relevant whenever courts are confronted with these cases – but before the court, these are usually taken into account in the various tests developed to assess these kinds of claims. While there is a power imbalance in the Hobby Lobby scenario – between the corporation and the women employees – a similar imbalance also exists between the government and the corporation.
Sure, the uneven playing field is important to consider insofar as they tend to blind judges and justices to certain inclinations and presumptions. But absent those, it should not be an explicit aim of courts to equalize the situation. The fact that other religious communities do not make similar claims is not an argument against accommodations provided by courts to Christian claims, provided these accommodations are justified under law. James Madison envisioned the First Amendment as a guarantee that there will be a marketplace of truth claims – the metaphor implies constant contest. The trajectory of RFRA is an example of that.
Just a minor quibble – compared to Judaism and Islam, Christianity’s “kingdom of God” is actually the example of it not being an earthly religion. It recognizes separation of church and state – at least in theory (“render unto Caesar”). Also, Islamic banking already exists in the United States.
Thank you for your comments, Anna. A few responses:
There are a few Muslim banks–which is wonderful–but when I offered the example of the Muslim business, I meant what would happen if a Muslim business wanted a secular American bank to adhere to Muslim banking standards and practices. I don’t think a bank would accommodate that and I don’t think it’s a lawsuit that would get off the ground. But that is what Hobby Lobby’s owners asked for and received–to adapt national healthcare laws to their beliefs or to be able to extricate themselves from the law without paying a financial penalty.
As for a level playing field, most people analyzing the litany of health care claims other religions could make focus on them as a slippery slope–if Hobby Lobby can avoid paying for contraceptives, then Jehovah’s Witnesses can get out of paying for blood transfusions, etc. etc. But despite the argument by analogy, I don’t think there’s a slippery slope in practice. Theoretically a sincere Jehovah’s Witness business owner should be able to use the logic of Hobby Lobby to avoid paying for blood transfusions. Presumably to pass the least restrictive means test, the insurance coverage would need to move from the employer to the government. But realistically, I find this hard to imagine occurring–even the majority decision intimates as much–and I think it’s important to consider why. It’s certainly not because blood transfusions are less central theologically to Jehovah’s Witnesses, and it’s hard to argue there wouldn’t be a compelling government interest in enabling blood transfusions. But if the court’s majority can’t imagine applying the Hobby Lobby logic to Jehovah’s Witnesses concerned with blood transfusions, then it’s not clear to me why Hobby Lobby should prevail on contraception. After all, the court has clearly decided that a) sometimes there are financial costs for acting in accordance with one’s beliefs (e.g., Braunfield); b) sometimes you pay for things you don’t believe in (e.g., Lee); and c) selective conscientious objection is problematic precisely because it enables systemic inequities (e.g. Gillette).*
The interpretation of the First Amendment should not, in my view, create a fence separating familiar and/or powerful religions from unfamiliar and/or marginal (numerically or theologically) ones, especially since the former are more likely than the latter to succeed in the political/legislative realm (hence, exemptions for contraception were on the policy-making table, but ones for blood transfusions were not). The issue isn’t whether an accommodation can be granted to one group if others don’t request them, but whether the court would act similarly for comparable claims made by less familiar or minority faiths. In other words, is the court equalizing or expanding power differentials? It’s one thing for a marketplace of religion to exist for individuals to choose from, but quite another for the Court to run the market by deciding some truth claims are protected as beneficial to society while others are left to fend for themselves (as, historically, has happened to many minority religions).
*I’ve written about the selective conscientious objection parallel here: http://nursingclio.org/2014/07/04/the-burdens-of-conscience-thoughts-on-burwell-v-hobby-lobby/