In the not-too-distant future, it’s entirely possible that religious freedom will be the only freedom we have left—a condition for which we can blame the Religious Freedom Restoration Act of 1993. Passed practically unanimously, with support from Ted Kennedy to Orrin Hatch, the ACLU to Concerned Women for America, the bill was a response to the Supreme Court’s decision in Employment Division v. Smith. This case involved two Oregon members of the Native American Church who were denied unemployment compensation after being fired for using peyote, an illegal drug, in a religious ceremony. Justice Antonin Scalia’s majority opinion, which held that a law that applied to everyone and was not directed at religion specifically was not a violation of religious freedom, made a lot of sense to me, then and now. Why should I have to obey a law and my religious neighbor not?
RFRA, which required laws infringing on religious convictions to meet the “strict scrutiny” test, was overkill. There were other ways to protect Native Americans’ right to use peyote in religious ceremonies. The church could have asked the State Legislature for an exemption; after all, during Prohibition, the Catholic Church was allowed to use wine in the Mass. Or—but now I’m really dreaming—workers could have been given legal protection from losing their jobs for minor lawbreaking outside the workplace. I mean, peyote! Come on. But no, for some reason, there had to be a sweeping, feel-good, come-to-Jesus moment uniting left and right. “The power of God is such,” said President Clinton, “that even in the legislative process, miracles can happen.” Gag me with a spoon.
What were progressives thinking? Maybe in 1993, religion looked like a stronger progressive force than it turned out to be, or maybe freedom of religion looked like a politically neutral good thing. Two decades later, it’s clear that the main beneficiaries of RFRA are the Christian right and other religious conservatives. RFRA has given us the Hobby Lobby decision permitting religious employers to decide what kind of birth control, if any, their insurance plans will provide. It’s given us “conscience clauses,” in which medical personnel can refuse to provide women with legal medical services—culminating in the truly absurd case of Sara Hellwege, an anti-choice nurse-midwife who is suing a federally funded family planning clinic in Tampa for religious discrimination because it declined to hire her after she said she would refuse to prescribe “abortifacient contraceptives,” i.e., birth control pills. (That the pill does not cause abortion is irrelevant—this is religion we’re talking about; facts don’t matter.)
For some, RFRA doesn’t go far enough because it doesn’t apply to state law. In April, Mississippi became the nineteenth state to enact its own RFRA, which essentially legalizes discrimination against LGBT people by individuals as well as businesses, as long as the haters remember to attribute their views to God. Instead of protecting LGBT people from discrimination—a business refusing to serve them, for example—Mississippi will be siding with the bigots, just like old times. Last year, the state passed the Student Religious Liberties Act, which gives pupils the right to express themselves freely on matters of faith without consequences. Johnny can tell his classmate Jane that she’ll burn in hell because she’s a lesbian and write all his biology papers on Adam and Eve and their dinosaur pets, and the school can’t say a word about it. That would be intolerant.
In theory, everyone can play this game. In Oklahoma, Satanists are demanding a religious exemption from compulsory abortion counseling on the grounds that the false claims in the government-mandated scripts—abortion causes suicide and so on—violate their religious belief in science. In North Carolina, the United Church of Christ is suing the state, claiming that its constitutional amendment banning same-sex marriage violates the right of its clergy to the free exercise of religion. “By preventing our same-sex congregants from forming their own families, the North Carolina ban on same-sex marriage burdens my ability and the ability of my congregation to form a faith community of our choosing consistent with the principles of our faith,” the Rev. Nancy Petty told Religion News Service.
But even if these cases are successful, they take us down the wrong road. People with religious objections shouldn’t have to listen to government speech. Imagine an anti-vaxxer a few years hence claiming the right not to be informed of the dangers of measles. Same-sex marriage should be legal because a clergyperson wants to perform them? What happens when a Mormon elder or a Muslim imam claims the right to express his faith by performing polygamous marriages? Even if religion were not the basically conservative social force it is in American life, expanding the religious freedom of individuals or corporations is simply not a good way to make public policy.
It’s great, though, when you don’t have an actual argument to support your position. The right uses religion because that’s all it’s got: the secular arguments against LGBT rights are in history’s dustbin. And if the notion that the pill causes abortion wasn’t a religious tenet, it would have no traction, since it is false and known to be so. Religious freedom functions like a giant get-out-of-reality-free card: your belief cannot be judged, because it’s a belief. There are still states where parents can legally let their children die of curable diseases—as long as they have a religious reason to shun medical care. The difference between criminal child neglect and tragedy? Jesus.
The Religious Freedom Restoration Act needs to be repealed, but it is hard to see where the political will is going to come from. Somehow the separation of church and state has come to mean blocking the state from protecting the civil rights of citizens and forcing it to support—and pay for—sectarianism, bigotry, superstition and bullying. I really doubt this is what Thomas Jefferson had in mind.