The Scandalous Religious Liberty Project of this Era: Rights to Discriminate, Harass, and Harm at Will

The religious liberty movement of this era will go down in infamy as a drive to discriminate against the LGBTQ community and to put women and children in their “places”: subservient to men. It is time to become more realistic and authentic about the moves being taken by conservative religious lobbyists and the so-called “religious liberty” they demand.

Before turning to contemporary examples it is worthwhile to review the basics of church/state relationships. First, religious liberty in the United States has never been absolute, but rather is hemmed in by the moral imperative to not harm others. Second, anyone who blindly trusts either the state or religion is asking for an autocracy or a theocracy, respectively. Both church and state must be effectively limited to direct them away from tyranny and toward the public good. The Framers’ most valuable gift to this young nation was a hearty distrust of humans in general and an expectation that those with power will abuse it. Therefore, they reasoned during that stiflingly hot Philadelphia summer (not unlike this one), there must be limits on all grants of government power; the same reasoning logically applies to religious actors as well, because they are human as well. This realistic expectation that humans will take advantage of the power granted to them means that limits must be placed on government actors to protect citizens and on citizens to protect one from the other, whether religious or not.

The Framers understood the phenomenon of too much religious liberty and even had a name for it: licentiousness. In sum, a healthy distrust of religious actors and a no-harm principle were wisely built into the United States’ religious liberty from the beginning.

Today, in this era of demands for extreme religious liberty, those seeking extreme protections have made it difficult for elected representatives to protect the potential victims of religious actors, because the religious lobbyists have kept their agendas close to the vest while furiously waving the religious liberty flag. Civil rights organizations fell for the rhetoric in the early 1990s but since then have recoiled from the discriminatory agendas as they have surfaced.

The battle to keep religiously-motivated discriminatory agendas secret while demanding “religious liberty” to discriminate continues. Two recent examples provide further evidence of the contemporary drive by religious entities to discriminate and to do so under the radar, without concern or regard for those they will harm.

California SB-1146: Disclosure, Discrimination, and Shame

Mandated Disclosure. California Sen. Ricardo Lara introduced SB-1146 this year, which contained two primary elements. First, the current version requires religious postsecondary schools that have asserted a religious exemption to the Equity in Higher Education Act or Title IX (which ban discrimination in various categories) to disclose the reason they claimed the exemption. In other words, a religious college would not be able to simply say: “This is a religious institution and, therefore, it is not bound by the anti-discrimination laws.” Instead, it would be required to say: “This is a religious institution is seeking an exemption from the anti-discrimination laws because of its belief in ________.” This is akin to the Catholic Church seeking an exemption to the ban on alcohol during Prohibition. It was not enough to say, “We are Catholic and, therefore, cannot be bound by Prohibition”; the Church instead needed to explain that Catholic services required wine as part of the communion ritual and, therefore, an exemption would be required for that use of wine (and not for all other alcoholic beverages). It is also along the lines of the exemption for the religious use of peyote by the Native American Church. The exemptions afforded have been for the religious use of peyote, not for recreational use; the accommodation has not been a right to avoid the state and federal Controlled Substances Act generally.

The bottom line is that the religious organization is simply being required to state the basis for its claimed need to avoid the law that applies to every other school. If it is not motivated by a religious belief, the exemption is illegitimate anyway.

The purpose behind the disclosure requirement is to protect those who would be harmed by the exemption. That aim is made clear by the list of those who are to be notified: The school must disclose its discriminatory policy and the reasons for it “to the institution’s current and prospective students, faculty members, and employees, and to the Student Aid Commission, concerning the institution’s claim for the exemption.”

In addition, the Commission must post the information online, and the institution would be required to generate a quarterly report for the commission with “a detailed explanation of the reason for each student suspension or expulsion that occurred during the preceding quarter . . . .” This way, students could make informed judgments (1) about which schools are the best fit when applying in the first instance; (2) about why the school they chose is an uncomfortable fit, and (3) regarding where else to attend if the school becomes untenable. The disclosure is required for the purpose of preventing and reducing harm to the state’s college students.

Some conservatives have objected to the disclosure requirement on the ground that it “shames” the schools. This is an odd argument against a disclosure requirement for religious actors. Doesn’t their faith, not the larger culture, dictate to them what is shameful? Or perhaps the shaming point is intended to point out that in this era the religious schools engaged in discrimination are likely to be criticized by outsiders. True, but First Amendment 101 stands for the proposition that there is no right against criticism in the public square. Or, finally, maybe religious entities have become so lost in the relentless pursuit of public relations, which is tied to their political ambitions, that they now see public criticism as somehow the deprivation of a right? In short, no persuasive arguments have been mounted against the disclosure requirement.

The non-disclosure advocates strangely echo the Little Sisters of the Poor (in the Zubik v. Burwell line of cases) who at one point were arguing that they couldn’t be required to tell the government they needed an exemption from the Affordable Care Act’s contraception mandate for employees in order to get an exemption. In other words, they should have rights without disclosure. This is, at base, an argument for absolute autonomy, theocracy, and/or anarchy. It is indefensible in a diverse democratic society.

Anti-Discrimination. Second, SB-1146 would have banned discrimination on the basis of “race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability” by postsecondary religious schools that receive state funds or who have students who receive federal funds. To put it another way: if a religious school received government funds directly or indirectly through student aid, it could not discriminate in the categories listed. Conservative colleges objected, arguing that they should be able to discriminate in order to preserve religious communities.

Professor Alan Noble of the Oklahoma Baptist University has argued that SB1146 went too far by banning discrimination, and suggests instead such colleges should simply be more “empathetic” to LGBT students. In response, Brandan Robertson at patheos.com argues that such “empathy” is unrealistic:

“[T]hese institutions will never be safe places for sexual and gender minorities. They will always be places that not only perpetuate discrimination, but abuse. And that is the reason that I believe religious colleges and universities should not receive state or federal funding. Because their teachings and practices do not promote human flourishing, but perpetuate deeply rooted discrimination, which is fundamentally against our interest as Americans.”

Robertson is, of course, correct as a fact matter; this reality shines a harsh light on the religious schools’ preference for secrecy, unchecked discrimination, and government financial support, making it appear to be simple self-preservation in the college marketplace. Yet, the government has no obligation to perpetuate any religious entity, and indeed I would argue that the Establishment Clause forbids the government from taking sides to preserve a religious institution. A religious entity must prove its bona fides to believers and the public in the private marketplace in religion or shrivel away. After all, religious institutions are live entities in a dynamic relationship with the culture.

Under pressure from the religious colleges, Sen. Lara removed the anti-discrimination provision from S-1146, leaving the disclosure and reporting requirements in the bill. For the LGBTQ community the elimination of the non-discrimination requirement is painful, but if California were to enact SB-1146 with only the disclosure requirement, it would still be a major step forward in reducing harm to students and in educating the public about what their taxes are supporting. This latter aspect—public education—is a necessary prerequisite to obtain the momentum needed to enact the anti-discrimination provisions. Sen. Lara has promised to re-visit the discrimination provisions at a later time.

The American Bar Association: Disclosure, Discrimination, and Harassment

The American Bar Association has proposed a rule for states to adopt that would prohibit lawyers from engaging in discrimination or harassment on the “basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” The rule was debated and originally opposed by some, but the ABA now stands behind it after hearing stories of a female attorney groped by an opposing lawyer at a holiday party and a gay man who was not hired by a firm because he was gay. The latter story reminded me of Justice Sandra Day O’Connor’s early career when she could not find a job as a lawyer at first because she was a woman.

So who thinks lawyers should be able to engage in discrimination or harassment in the practice of law? Well, conservative religious lobbyists again. This time, it was in a letter from former Attorney General Edwin Meese and Kelley Schackelford. This letter is most remarkable in its high-flying constitutional arguments that lack examples of exactly how a lawyer’s religion will require him or her to discriminate or harass someone in the practice of law. Until they provide concrete details, they deserve no hearing.

The bottom line is that religious liberty in the interest of the greater good requires evidence-based accommodation, not blind exemptions. The questions that need to be asked and answered (at a minimum) for all religious exemptions are as follows:

• First, which law or laws in particular would be affected by this accommodation?
• Second, who seeks to overcome these laws and for what practices?
• Third, who will be harmed if the accommodation is permitted?
• Fourth, what do experts in the field and the public think about the exemption?

Sen. Lara and the ABA are carving out innovative paths to protect others from harm. It is not enough for religious colleges and lawyers to wave the “religious liberty” flag in response. Instead, they must answer the first three questions honestly, and the experts and public need to weigh in. Then and only then will lawmakers have enough information to make the right decision about exemptions in the interest of the public good.