“There is a war against religion!” “Exemptions on religious groups undermine civil rights!” “Pluralism and tolerance are in jeopardy!” “Freedom for some ends up trumping freedom and equality for others!” Whether any of these individual statements is true, the rising claims of catastrophe by opposing groups across the United States prompted an intense and engaging conference, “Religious Accommodation in the Age of Civil Rights,” held at Harvard Law School on April 3–5, 2014, sponsored by Harvard Law School, the Williams Institute at the University of California in Los Angeles, the American Civil Liberties Union, and the University of Southern California Center for Law, History and Culture. Engaging and intense discussions among forty panelists and over 120 participants generated the articles presented in this issue as well as others filling special issues of two other journals. The focus on accommodations for religion reflects both increasing challenges to traditional denials of rights and protections for lesbian, gay, bisexual, and transgender individuals and religious objections to contraception and abortion. Clashes increase with political and legal advances in legal treatment of marriage equality for same-sex couples and expanding recognition of legal claims of businesses for freedom of speech and religion. Ongoing disagreements over the scope of existing and potential federal, state, and local antidiscrimination laws, health insurance requirements, and other general rules trigger political and social debates but also produce legal questions requiring answers.
For the better part of a decade, a number of well-intentioned scholars of religious liberty have insisted that, as Douglas Laycock put it, “conflicts . . . between religious conservatives and the gay rights movement have live-and-let-live solutions in the tradition of American liberty.” More recently, some have tried to concretize this general claim in more-or-less specific proposals for accommodation of religious objectors in the context of state laws recognizing same-sex marriage. In no small part because of continuing religious conscientious objection to abortion and newly vigorous religious objection to contraception, including but not limited to demands for exemptions from the contraception mandate of the Patient Protection and Affordable Care Act (“ACA”) such as those recently considered by the Supreme Court in cases like Burwell v. Hobby Lobby, some of these scholars have now expanded the reach of their proposals for religious accommodation from the narrow issue of same-sex marriage to more broad “disagreements over sexual morality.” In this broader context, they renew their claims, first, that to arrive at a live-and-let-live solution is not only desirable but possible “if we have the will to do so,” and second, that to do otherwise than accommodate would be untrue to this nation’s tradition of religious liberty.
Americans recently marked and celebrated the fiftieth anniversary of the passage of the Civil Rights Act of 1964. During the past half-century, a wide variety of antidiscrimination laws, civil rights protections, and equal access rules have been enacted by the full range of authorities and jurisdictions, from small towns to the United Nations. These measures, in addition to a broad array of policies and programs having to do with education, voting rights, social welfare, and economic opportunity, have in many ways helped to make more real what might otherwise have remained only an ideal of “equal citizenship.” As President Barack Obama remarked on the anniversary of the Act, it “brought us closer to making real the declaration at the heart of our founding—that we are all created equal.” We continue to disagree, reasonably even if strongly, about the precise content of this ideal, the best ways to implement it, and its coherence. Even if the “idea of equality” is not entirely “empty,” it is certainly more easily and more often admired than understood. This is not surprising and does not detract from its being a shared ideal. In any event, and in the President’s words, the “journey continues.”
Dating back to the revolutionary era, France and the United States have vied, sometimes directly, in a longstanding contest for leadership status in the area of human rights. Where gay marriage is concerned, however, it would be more accurate to describe both nations as followers rather than leaders. In late April 2013, about twelve years after the Netherlands became the world’s first nation to legalize same-sex marriage, and on the heels of large and passionate protests by social conservatives, France became the fourteenth such country, eliminating the French Civil Code’s gender-specific language barring equal marriage. Not to be outdone, the United States, acting through judicial rather than legislative channels, followed suit in June 2013 with United States v. Windsor, striking down the federal Defense of Marriage Act (“DOMA”).
Increasingly, clashes between the demands of law and aspirations of religion center on the legal status and treatment of religious institutions. Much of the rising tensions revolving around religious institutions stem from conflicts between the religious objectives of those institutions and their impact on third parties who do not necessarily share those same objectives. Indeed, these persisting tensions have pressed two fundamental questions to the forefront of legal debate: what institutions count as religious institutions and to what extent should these institutions be excused from complying with otherwise valid laws?
In February 2014, the Kansas House of Representatives proposed a bill that would have permitted business owners with religious objections to deny some customers services and accommodations. Sixty years after Brown v. Board of Education, Kansas legislators would have allowed citizens of Topeka to refuse restrooms, restaurants, and water fountains to other citizens.
Across the state of California today, conservative religious student groups are no longer welcome on public school campuses like Hastings College of the Law. And it’s not just the West Coast. Vanderbilt University, Bowdoin College, and a number of other schools have also kicked out conservative religious groups. These schools rely on “all-comers” policies that require student groups to accept any student who wants to join, irrespective of a student’s beliefs or actions. Conservative religious groups with creedal membership or leadership requirements are unable to comply.
In 2006, an Albuquerque photographer declined to photograph a same-sex wedding, citing religious objections. The couple sued her for discrimination and won. Cases like this one present a conflict between gay rights and religious liberty. Religious conservatives feel that it would be sinful for them to personally facilitate same-sex marriages, and they have sought to amend the laws to accommodate their objections. These efforts have met fierce resistance. In Arizona, the only state where a legislature has passed a religious accommodation law, the governor vetoed it in response to enormous national public pressure.
The resistance is largely unnecessary. Gay rights advocates have misconceived the tort of discrimination as a particularized injury to the person, rather than the artifact of social engineering that it really is. Religious conservatives likewise have failed to grasp the purposes of antidiscrimination law, and so have demanded accommodations that would be massively overbroad.
When Vanessa Willock emailed Elane Photography seeking information about photography services for her upcoming commitment ceremony, she was likely expecting a run-of-the-mill response—pricing information, samples of prior work, a discussion of the photographer’s availability for the date in question. She was not expecting Elaine Huguenin, a co-owner of Elane Photography, to refuse the commission outright on the ground that she “[did] not photograph same-sex weddings.” Likewise, when Charlie Craig and David Mullins entered Masterpiece Cakeshop in Lakewood, Colorado to order a cake for a party celebrating their Massachusetts marriage, they probably were not expecting the owner, Jack Phillips, to refuse their business because his religious convictions prevented him from making cakes for same-sex weddings.
The increasingly apt term “culture wars” refers to a polarizing tendency in which Americans are coming to coalesce around opposing political agendas that themselves murkily reflect divergent conceptions and evaluations of individualism, community, equality, authority, tradition, sexuality, Christianity, and the meaning and mission (if any) of America. At the moment, the controversy over same-sex marriage is the most fiercely contested political and cultural battle, but the intensity of that particular battle is likely due in part to the fact that same-sex marriage is only one salient issue within a larger struggle.
In late November, shortly after the Supreme Court granted certiorari in Burwell v. Hobby Lobby, Linda Greenhouse published a perceptive op-ed arguing that the contraceptive mandate cases “aren’t about the day-in, day-out stuff of jurisprudence under the First Amendment’s Free Exercise Clause,” and they aren’t about the rights of corporations either. Instead, she said, “They are about sex.”
In response to which I want to say yes, they’re about sex. And they’re about religion. But they’re also about money. They’re about sex, God, and money. Since sex and God have both gotten a lot of attention already, I’m going to focus on the money.