<ir="ltr">If you’ve haven’t heard enough of the catch-all term “religious liberty,” check the headlines again. This past week, Alabama’s State Supreme Court Chief Justice, Roy Moore, was suspended from his duties, keeping him off the bench for the remainder of his term. His suspension, delivered by the state’s Court of the Judiciary, came in response to his resistance to adhering to federal law, notably his resistance to implementing the U. S. Supreme Court’s decision in Obergefell v. Hodges, which legalized same-sex marriages nationwide one year ago. I will spare the details of his views on same-sex marriage, which are well-published online. But they have a common thread: Moore asserted that higher laws exist that supersede our own laws, which I suspect he wishes to follow by resisting the Obergefell ruling. We’ve heard this argument before as a prelude to the greater argument for religious liberty (or freedom). In a quieter year for news–enough said about this year–we would have heard a bit more about this development, the next in a long line of cultural flashpoints.
We have seen in recent years the use of “religious liberty” arguments to counter a law or an activity mandated by law, on the grounds that it conflicts with an individual’s (or group’s) religious beliefs. Moore now joins Kim Davis, the Kentucky court clerk who refused to issue marriage licenses to same-sex couples in 2015, and many other individuals who resisted Obergefell to uphold their religious beliefs concerning marriage. “Religious liberty” comes up again in the Supreme Court’s recent decision in Zubik v. Burwell, a consolidated case whose litigants sued the U. S. Department of Health and Human Services over the “contraceptive mandate” of the Affordable Care Act. Sometimes, the law isn’t countered in the courts; rather, it’s reformulated. Several state legislatures proposed bills that sought to ensure protections for businesses and other organizations that deny services based on religious beliefs. Such legislation passed in Mississippi this summer, and prominently in Indiana last year.
Throughout these high-profile situations, the appeal to religious liberty has often been made to defend practices, actions, and the absence or restriction thereof, based on religious doctrine and teaching held as more “traditional” and socially conservative. These appeals to religious liberty have another side of the coin, at the expense of restricting legal rights (such as marriage) or services (such as contraceptives or wedding cake commissions) unduly and unjustly. They also target specific communities in these restrictions: for example, the LGBTQA+ community.
It would seem that religious liberty arguments are used now to defend inexcusable and unjust actions. I have heard enough of it in these debates that the phrase feels like a dirty word, which is a shame given how essential protections of freedom of thought and belief should be. In fairness, the religious liberty argument arose interestingly in unexpected places. Earlier this year, activists in Sacramento worked with the Interfaith Council of Greater Sacramento to sponsor a tent city to house the homeless, against city ordinances restricting encampments. They have claimed the First Amendment’s protection of “free exercise,” making the act of setting up a tent camp an exercise of religion. They also certainly aren’t the first to make this argument; a Methodist church in Seattle successfully claimed this protection fifteen years ago. Many acts of civil disobedience towards more progressive causes, like this one, stemmed from religious convictions. Consider the massive clerical and faith-based involvement in the marches and demonstrations of the civil rights movement. Consider, too, radical acts such as the burning of draft registration records by Catholic anti-war activists in 1968.
That religious beliefs and convictions have been used for causes of resistance to the law should give us pause. Given the plurality of these beliefs, their dogmas and theologies, we should be skeptical as to which beliefs become implicitly accepted or excluded. We should not be too quick to be dismissive of the argument for religious liberty, as much as we understand its consequences. Although I am opposed to the many ways that the argument is used by Moore, Davis, and the litigants of Zubik, it doesn’t suffice to categorize “good” and “bad” ways of using the argument of religious liberty. Sifting through the vitriol in the debates on religious liberty, we arrive to a place where underlying beliefs have different emphases of values, and dissonances, all of which we cannot reach or change top-down. It becomes more addressable at the interpersonal level, idealistic as though it sounds.
Should we read another headline about someone “moved” to resist the law, let us consider carefully where their motivating beliefs may originate. It would be helpful to be aware of how the beliefs of those who invoke the religious liberty argument are informed. Let us also consider the question of whose religious liberty is at question–and whose isn’t. With these questions, we may yet begin having a careful, thoughtful dialogue, navigating an idea that we risk trivializing in these high-profile situations. These rights must not become irrelevant to us at a time when they should be upheld for those whose religious identities continue to lead to their discrimination today–from Jews and Muslims, to Sikhs, indigenous people, and our unaffiliated neighbors. Let us ensure religious liberty truly works for all.