Religious Freedom in a New Age

by | Aug 5, 2015

 Photo - Man in Stone Church

On July 25th, AJC columnist Jay Bookman dismissed Georgia House Speaker David Ralston’s “Pastor Protection Bill” as an essentially meaningless symbolic gesture. I’m uncharacteristically inclined to agree with him.

In its current form the bill simply states that “[n]o minister of the gospel or cleric or religious practitioner ordained or authorized to solemnize marriages according to the usages of the denomination, when acting in his or her official religious capacity, shall be required to solemnize any marriage in violation of his or her right to free exercise of religion.” This would seem to follow pretty directly from the First Amendment Free Exercise Clause, as University of Maryland law professor Mark Graber has observed.

While I’m not averse to symbolism and, indeed, regard it as an important teaching function of the law, the prospect that pastors will actually be compelled to perform same-sex marriages is a remote one. To be sure, in our current circumstances anything is possible, but that’s not one of the pressing concerns keeping me up at night.

Here are the things that, to my mind, are causes of concern:

  • The tax-exempt status of churches and other faith-based institutions that remain faithful to the traditional understanding of marriage
  • The eligibility of faith-based institutions (above all, schools, universities, and social service agencies) to compete on a level playing field for government funding if they continue to act in accordance with their long-held belief that marriage is between a man and a woman
  • The ability of churches and other faith-based institutions—if they so choose—to demand doctrinal and behavioral conformity, not just of ministers, but of all employees

In a nutshell, I’m concerned that we’re facing a significant challenge to the ability of churches and other faith-based institutions to remain theologically and morally faithful while fully and equally participating in civil society.

And before I discuss these substantive concerns in a bit more detail, let me add a procedural worry. I fear that Speaker Ralston and many other Republicans, having been chastened by the religious freedom contretemps earlier this year in Indiana, Georgia, and elsewhere, will regard this pastor protection legislation as all they need to do. If true friends of religious liberty accept this down payment on a robust commitment to our first freedom as the full price, they will have left our religious institutions vulnerable to all sorts of threats. I recognize that some of my concerns will have to be addressed at the federal level by something like the First Amendment Defense Act, but there is no reason why Georgia could not provide similar protections at the state level. And I also recognize that laws are mere parchment barriers, weaker than constitutional provisions (which may themselves be no more than papier-mâché); neither will protect religious liberty from a public (or an elite) that has grown indifferent or hostile to it.

I turn now to the challenges, beginning with tax-exempt status. During the oral arguments for Obergefell v. Hodges, Solicitor General Donald Verrilli conceded to Justice Samuel Alito that the tax-exempt status of religious institutions that uphold the traditional understanding of marriage is “certainly going to be an issue.” The dissenters took note of this exchange. Chief Justice John Roberts said this:

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.… There is little doubt that these and similar questions will soon be before this Court.

Justice Clarence Thomas seconded this concern:

Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” … In our society, marriage is not simply a governmental institution; it is a religious institution as well…. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.

Justice Samuel Alito spoke of the larger consequences of the Court’s decision:

Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.

It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women …   The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected.…   We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

Let me emphasize this last point, for it is a clear allusion to the context of Justice Alito’s exchange with the Solicitor General, which involved the Supreme Court’s affirmation of the IRS’s revocation of the tax-exempt status of Bob Jones University over its policy forbidding interracial dating. If the analogy—insisted upon by the Court’s majority—between opposition to same-sex marriage and opposition to interracial marriage holds, then the former amounts to the same sort of bigotry as the latter and, perhaps, deserves the same legal treatment.

In the Bob Jones case, the Supreme Court held that the First Amendment Free Exercise Clause does not protect the University from the IRS’s revocation of its tax exempt status. The Court’s reasoning was that, in the first place, tax exempt status is granted under the Internal Revenue Code only to institutions and organizations that “serve a public purpose” and are not “contrary to established public policy.” While the University might well serve a public purpose, augmenting or supplanting public efforts at higher education, its practice of racial discrimination was certainly contrary to established public policy. And if free exercise claims, in the best instance, require strict scrutiny, overcoming racial discrimination is surely the kind of compelling state interest that justifies an abridgement of that right.

It doesn’t require much imagination or legal expertise to see how this line of reasoning could be applied to churches and other faith-based institutions that act “contrary to established public policy” in upholding the traditional understanding of marriage.

This doesn’t mean that the IRS must or will revoke their tax exempt status, only that it can, and that the First Amendment provides no sure defense against that action. If countering discrimination based on sexual orientation comes to be regarded as a compelling state interest, then the free exercise rights of religious institutions will likely have to give way if the IRS bows to the pressure that will surely be brought to bear on it to use its powers for that end.

I think that a case can be made on behalf of continuing to extend those exemptions, both in terms of the manifold human needs all churches address and in terms of preserving the pluralism that is the essential ground of free institutions and a free people, but we have to make that case over and over again, in the face of a faction that isn’t particularly interested in listening to it. I take some solace from the fact, that, at the moment, public opinion seems to favor religious freedom, but that delicate flower needs to be carefully cultivated.

Now, if tax exemptions are a problem, then you know eligibility for government grants will be. To be sure, this isn’t an issue for houses of worship as houses of worship (which, generally speaking are not and should not be eligible for government grants), but it is one for schools and colleges, as well as for social service agencies. While the Supreme Court has frequently upheld the channeling of government aid to religious institutions under certain circumstances (see, for example, Mitchell v. Helms, Zelman v. Simmons-Harris, and the Arizona Christian School Tuition Organization case), it has also held that governments are perfectly within their rights to deny otherwise generally available aid and facilities to religious organizations (see, for example, Locke v. Davey and CLS v. Martinez).

Governments can attach any number of conditions to the aid they provide. Adoption agencies may be required to place children with couples without regard to the gender of the partners. Universities may be required to provide housing—if they provide it at all—to couples that are married in the eyes of the state, regardless of whether those marriages have the sanction of the sponsoring religious body. And if you put the recent EEOC ruling on sexual orientation together with the way in which the Department of Education is interpreting Title IX of the Education Amendments of 1972, it’s pretty easy to see how a lot of government money could be riding on conformity with what appears to be the new normal in regard to sexual orientation and marriage.

For higher education institutions, access to government money is a big deal. According to the U.S. Department of the Treasury, 55% of spending on undergraduate education in 2009-10 came from federal aid (which amounted to $124 billion that year). While there are a few colleges (Hillsdale and Grove City, for example) that take pride in not accepting a dime of federal money, most would at the moment not be able to survive without it.

Again, this doesn’t have to happen. Congress could pass legislation that protects religious freedom, or agencies could voluntarily refrain from impinging on it. But pressure will be brought to bear on behalf of those who, as they would put it, don’t want to subsidize discrimination.

This brings me to my next concern, the religious hiring rights of churches and faith-based organizations. Title VII of the 1964 Civil Rights Act permits them to take religion into account when hiring. And the “ministerial exception” based in the First Amendment—recently vindicated in the Hosanna-Tabor case—means that a number of federal laws granting employees enforceable rights cannot be applied to those a church holds out as ministers. But these provisions do not provide comprehensive protection of religious hiring rights. There is certainly a gap between the legislatively-acknowledged right to hire coreligionists and the constitutionally-grounded ministerial exception. What if someone who signs a statement of faith as a condition of employment comes out as gay and/or enters into a same-sex marriage? Unlike the Employment Non-Discrimination Act, the recent EEOC ruling about sexual orientation discrimination does not contain exceptions for religious organizations. It isn’t at all clear that Courts will find that the Free Exercise Clause will protect them from EEOC complaints, in the event that these organizations choose to enforce doctrinal or behavioral requirements on their employees.

Now, this parade of horribles does not have to march into our sanctuaries. The threats that loom on the horizon do not have to materialize. Those who currently hold the upper hand in government may practice forbearance, either out of a genuine commitment to pluralism and religious freedom or out a fear of overplaying their hand and alienating public opinion.

We on our part must be both vigilant and winsome, vigorously defending and advocating for our rights when they are threatened and offering a model of the charity and forbearance that we hope others will also display. Our society is pluralistic, reflecting deep disagreements about how we ought to live. History teaches us that faith doesn’t require hegemony to prosper. But it does require that those who have it live it, loving their neighbors as themselves. There is room both for political and legal action, and for the building and maintenance of personal relationships. If we forgo the former, there may be no room for the latter. If we focus on the former, we run the risk that those parchment barriers will be swept away by the animosity we have done nothing to disarm and dispel.

The Religious Liberty Endgame

by | Mar 25, 2015

800px-Georgia_State_Capitol_Atlanta_Georgia

I have been following the legislative peregrinations of Georgia’s religious liberty (notice that, unlike the Atlanta newspaper, I don’t use “scare quotes” to describe it) legislation with a great deal of interest and concern. There are just a few days left in this year’s session, and I’d love to see the legislature do the right thing and provide additional sensible protection to what we have for a long time called our “first freedom.” I wish I were more confident.

To get you up to speed, let me give you, dear readers, a brief recap of what has happened so far. Different versions of the proposal were filed in the House and in the Senate. The Senate version passed overwhelmingly on March 5th. It now sits before the House, where it will be the subject of a subcommittee hearing on Tuesday, March 24th. Proponents and opponents of the legislation have turned up the heat, with RedState/WSB pundit Erick Erickson becoming very vocal in favor of the bill and opponents continuing to claim—wrongly, I would argue—that it is a license to discriminate.

My biggest fear is that some legislators—especially those with the most influence—will simply choose to keep their heads down, seeking to propitiate the noisiest constituency. In this, they will follow the risk- and bad publicity-averse business community. In this connection, the latest straw in the wind is a speech delivered by House Speaker David Ralston to the Atlanta Press Club. Here’s what the Speaker had to say:

That gets the bill title of the year award in my book. And I want to say a few things about that bill today. I have said before: I am talking with and listening to people on both sides of this important issue.

And I will continue to do so. I do not take lightly the importance of protecting a person’s right to worship and express their faith. The framers of both the United States and Georgia constitutions saw this right as paramount. And that’s why we find this protection in our most basic and important and even sacred legal documents.

As with any issue of this magnitude, there’s a lot of misinformation swirling out there through the modern rumor mill that we refer to as social media. Despite what you have heard, I haven’t made my mind up. I am still seeking the right way forward, and I don’t apologize for that.

Some things in our legislative process, unfortunately, do take time to work out. Before we move forward, we have to understand what the impact of this legislation will be on the rule of law in this state. We need to know if this legislation opens the door to unintended consequences of any type, that some may try to exploit.

I take proponents of this measure at their word that discrimination toward anyone is not part of this effort. At the same time, I appreciate the concerns of those who have strong opposition to this legislation.

The good news is that Georgia is a global destination for people from all over the world who want to come visit and for businesses that want to come create jobs. And that is not going to change.

But closing the door to anyone is closing the door to all.”

A few things are worth noting here, beginning with his ironic reference to the bill’s title, which I take to mean that he’s of a mind to adopt the “scare quotes” approach taken by the AJC. Second, I’m certainly willing at the moment to take him at his word when he affirms the importance of religious liberty. Third, his concerns about unintended consequences and the rule of law are certainly appropriate, but, I think, rather easily allayed. We have more than twenty years of experience with a federal RFRA, and I don’t think that any honest observer could assert that that piece of legislation amounts to the greatest threat to the rule of law in America today. (I have other nominees for that prize, but that’s a subject for another day.) Of greatest concern is his final comment: “closing the door to anyone is closing the door to all,” offered in the context of a reference to Georgia’s global business ties. As I said earlier, there are noisy constituencies that insist—loudly and at every turn—that the bill offers a license to discriminate, that it is anti-gay, and that it will, in effect, send a signal to gays and others that Georgia is hostile to them. Under those circumstances, they will simply take their business elsewhere. That line of argument seems greatly to concern the Speaker and his allies in the business community. The easy way out is let the bill die this session, sending a signal that Georgia is still open for business. This is easy because the bill’s proponents are, generally speaking, business-friendly and not given to the kind of “bad behavior”—economic boycotts, threatening people’s jobs, and demonstrating at people’s homes—that folks on the other side have displayed. They’ll still shop at Home Depot and book their tickets on Delta.

There’s bit more to the speech that gives me a little hope and more than a little concern:

In this and other passionate debates, however, there always seems to be a few for whom honest, reasonable, and civil discussion is an alien concept that they are simply not acquainted with. These pundits-for-hire and self-professed thought leaders are not looking to protect anything, or anyone. They seek profit, relevance, and attention by preying on people’s worst fears through loud volume, lies and distortions.

I have no interest in rushing to act on this or any other issue merely to coddle over-inflated egos or help grow someone’s bank account.

Here’s what I propose we do: Let’s all take a deep breath and look at this thing in a reasonable way – and we’ll find the right way that really does what both sides hope to accomplish. Because I believe that at the end of the day, Georgians don’t have time for the politics of personal destruction. They don’t expect us to waste the limited time we have here playing these kinds of games.

As an American, and Georgian, and born-again Christian, I value inclusive discussion. I believe the Old Testament prophet got it right when he said, in the Book of Isiah, ‘Come, let us reason together.’

I don’t expect or demand that the members of the House agree on everything. What I do ask, and what we have done, is debate the issues constructively…

The AJC reporter believes that the Speaker’s remarks are largely directed at Erick Erickson, who (as I noted earlier) has turned up the volume in favor of the bill. Erickson may well have hit a nerve, but he’s hardly the only participant in the debate who may have crossed a line or two in promoting a favored position. I wish that the commentary here were more even-handedly directed at transgressors on both sides, rather than focusing much of the ire against a perhaps overzealous supporter of the legislation. Then I’d be more confident in the Speaker’s willingness to “reason together.”

I’ll close by noting an argument proffered by AJC columnist Kyle Wingfield: if the bill is killed this year, it will surely come back next year, after a Supreme Court decision that will likely create a constitutional right to same-sex marriage, with even more heat and less light surrounding it. Genuine friends of religious liberty don’t want it tied too intimately to the hot button social issue of the day. If David Ralston is a genuine friend of religious liberty, he could do much worse than take Wingfield’s advice. Bring it to a vote this year, for next year the acrimony and vitriol will only be worse.

Update: After yesterday’s hearing, some are speculating that the House will approve an alternative to the Senate version that narrowly tailors protections to faith-based non-profits, specifically excluding for-profit businesses like Hobby Lobby, whose owners have religious scruples about contraceptives or abortifacients, for example. I would rather see a robust protection of religious liberty, even in the marketplace. And I would prefer, even more, that people display enough respect for the religious scruples of their fellow citizens that they wouldn’t demand that a business owner act against his or her conscience. But I, personally, would prefer some legislative protection to none at all. I remain persuaded by Kyle Wingfield’s argument that, in the next legialtive session, after a likely Supreme Court decision, getting even a narrow religious liberty bill will be exceedingly difficult. And I am acutely aware how hard it is to persuade the Georgia legislature—even when it’s controlled by people who identify themselves as conservatives—to pass sensible legislation that takes reasonable account of the role of religion in our culture and civilization.