WASHINGTON, D.C. — Religious freedom is widely misunderstood, prone to being used only for political purposes and is identified by the public mostly with the Republican politicians. And its enshrinement in law requires constant vigilance on all sides.
Those were some of the conclusions of a Dec. 13 panel sponsored by the Religious Freedom Center at the Newseum in Washington.
The main topic was supposed to be the role of women as heads of religious freedom organizations.
Instead, the discussion moved quickly onto the Religious Freedom Restoration Act, passed by Congress in 1993, and the Masterpiece Cakeshop v. Colorado Human Rights Commission, decided June 4 by the Supreme Court in favor of baker Jack Phillips, who had cited his Christian beliefs on traditional marriage in refusing to make a wedding cake for a same-sex couple.
The court ruled 7-2 in favor of Phillips under the free exercise clause of the First Amendment to the U.S. Constitution. The baker said his religious views also prevented him from making Halloween-themed or satanic-themed items.
Amanda Tyler, executive director of the the Baptist Joint Committee for Religious Liberty, observed that the justices actually “punted” on the larger issue over whether the state’s public accommodations law, which Phillips was challenging, was constitutionally sound.
“Does the First Amendment refuse an accommodation for this business owner that is an exception to this law? The Supreme Court didn’t answer that question.”
Tyler thought the decision “serves as a cautionary tale for all officials to be respectful in these conversations.”
The U.S. Conference of Catholic Bishops had submitted an “amicus curiae,” of friend-of-the-court brief, supporting Phillips. The USCCB later praised the court’s decision, saying, in part, that it “confirms that people of faith should not suffer discrimination on account of their deeply held religious beliefs, but instead should be respected by government officials. This extends to creative professionals, such as Jack Phillips, who seek to serve the Lord in every aspect of their daily lives.”
Kim Colby, director of the Center for Law and Religious Freedom at the Christian Legal Society, observed that RFRA “is what’s protecting all of our rights at the federal level. The free exercise clause has been weakened.”
The RFRA was the basis of the Supreme Court’s landmark Burwell v. Hobby Lobby decision in 2014, which allows certain for-profit businesses, based on their religious objections, to be exempt from the mandate of the Affordable Care Act to provide a range of contraceptives, including drugs considered to be abortifacients, in their employee health insurance plans.
Hobby Lobby officials said the company has always covered contraceptives for employees but that what they objected to was being forced to cover abortifacients.
But calling religious freedom a license to discriminate “is a very dangerous attack,” Colby added. “There is a whiff of intolerance in the air toward religious freedom that’s going to hurt everyone in the long run.”
Rachel Laser, president and CEO of Americans United for Separation of Church and State, said the RFRA was “being weaponized” in South Carolina, where Gov. Henry McMaster intervened, later issuing an executive order, to gain a religious exemption from federal laws for a Christian foster care agency, which had refused to place children with non-Christian families.
“That is not what RFRA was designed to be about. It’s supposed to be a shield, not a sword,” Laser said.
Laser also criticized the Indiana religious freedom law signed in 2015 by then-Gov. Mike Pence. “He imposed his own religious views.”
Criticism from the bill’s opponents was immediate because of fears that LGBTQ citizens would be denied basic legal rights. After several large businesses and the tourism industry pointed out that the law would harm job recruitment and produce boycotts, the Indiana Legislature passed an amendment to prevent the law from superseding local and state civil rights ordinances.
In the face of criticism, Pence asked for the new language in the amendment, which explicitly stated that no “provider … may deny service to anyone on basis of sexual orientation, race, religion or disability.”