Why We Must Reclaim “Religious Freedom” from Christian Conservatives

“Most people did not see the storm clouds on the horizon as the Christian Right mounted a major effort to redefine religious freedom.” Image courtesy Flickr user pato garza via Creative Commons
“Most people did not see the storm clouds on the horizon as the Christian Right mounted a major effort to redefine religious freedom.” Image courtesy Flickr user pato garza via Creative Commons

When Frederick Clarkson was a young activist and journalist living and working in Washington, D.C. Jerry Falwell’s Moral Majority was getting started and Ronald Reagan became president. Those were heady days for religious conservatives, who had long felt marginalized.

As the political and social landscape has shifted over the years, the Christian Right, along with conservative politicians seeking their votes, has successfully rebooted the culture wars by redefining “religious freedom” and adding it to its anti-abortion and anti-gay arsenal.

In honor of National Religious Freedom Day (celebrated on January 16th) I spoke to Clarkson about his thoroughgoing recent report—When Exemption is the Rule: The Religious Freedom Strategy of the Christian Right (via Political Research Associates)in which he names the religious freedom strategy one of the “central issues of our time.”

Bill Berkowitz: Why did you write When Exemption is the Rule?

Frederick Clarkson: Most everyone to the left of the religious right is behind the curve on one of the central issues of our time: religious freedom. Six years ago, most people did not see the storm clouds on the horizon as the Christian Right mounted a major effort to redefine religious freedom.

Conservative evangelical leaders working in close—and I think underappreciated—alliance with leaders of the United States Conference of Catholic Bishops have reconfigured the Christian Right to wage the culture wars of the 21st century. Religious freedom is central to their strategy. I would go so far as to say that no understanding of the Christian Right is complete or even accurate without a profound grasp of their interrelated three-part formula of life, marriage, and religious freedom.RDinboxThis report describes the implications of some of the major decisions of the U.S. Supreme Court, and the growth in the political and especially the legal capacity of the Christian Right to conceive, litigate, and win cases, and to inform politics with their vision of a more theocratic society.

I think to take this conversation forward, we need a practical definition of religious freedom that embraces our country’s history and best intentions for religious equality going back to Jefferson and Madison, while providing a better understanding of the way the Christian Right usually uses it.  So I have offered one.

Some may differ with my definition, but the stakes are high. We must not risk ceding one of the most significant advances in human liberation in the history of Western civilization—and certainly one of the foundational building blocks of a democratic society.

What is your definition?

In the report, I write:  “…religious freedom is the right of individual conscience; to believe as we will and to change our minds freely, without undue influence from government or from powerful religious institutions. It also means the right to practice our beliefs free from the same constraints. The right to believe differently from the rich and the powerful is a prerequisite for free speech and a free press, the other two elements of the First Amendment of the US Constitution.” 

How does your report fit into today’s political landscape?

Over the years, the Christian Right has evolved, shaping events and not merely reacting to them. Conservatives have consistently responded to changing social roles and increasing efforts at equality for the historically oppressed, including women, racial and ethnic minorities and LGBTQ people.

But the Christian Right also has a theocratic vision that is not merely reactive. It is proactive, and has deep roots in history and, in my view, it is gathering strength and momentum. While many people across a wide swath of public life—including journalists, scholars, and political activists—have delighted in repeatedly writing the Christian Right’s obituary, the theocratic coalition and the way it carries out its politics has dynamically evolved.

“A number of Christian right legal agencies have produced manuals for churches and related institutions, to rewrite such things as job descriptions to extend the legal definition of ‘ministry’ in order to seek exemption from labor standards and civil rights laws, and to inoculate themselves against discrimination lawsuits.”

Thus, assumptions most of us have about the nature of religious pluralism, the rights of individual conscience and separation of church and state—and arguably democracy itself—cannot be considered as givens in public life. The Christian Right has developed profound legal, political and electoral capacities (the misguided beliefs of some otherwise sensible people that it is dead or dying notwithstanding). Christian Right presidential candidates remain prominent and the movement has increased its numbers in the Congress and in state governments and functions as a major and sometimes the dominant faction in the Republican Party in many states. The Christian Right remains one of the most powerful movements in American history.

I should add that the implications of these things are broader than may meet the eye. Donald Trump’s calls for restricting Muslims from traveling, emigrating, or enjoying refugee status in the United States is an affront to our country’s best traditions and aspirations for religious freedom and equality under the law. President Obama rightly said there should be no “religious test” in our policies on these matters. But Senator Ted Cruz, among others, has said in response to the Syrian refugee crisis that the U.S. could limit refugees to Christians.

I am reminded of the Spanish Inquisition in which Jews and Muslims were first expelled, and later those who remained were told they had to convert or be killed. When the Constitution was written, these events and other religious persecutions in Europe were still relatively recent history. Some of those who came here were refugees from such horrors.

The Framers of the Constitution hoped to inoculate us against such things. And yet, the politics of religious exemptions and exclusions are increasingly part of our public life. And the inquisitional and persecutory spirits that inevitably follow from them are beginning to show as well.

One of the most significant Supreme Court cases was the Hobby Lobby decision. Could you briefly explain that case and its overarching significance?

I think the 2014 Burwell v. Hobby Lobby Stores Inc., is a turning point in American politics and jurisprudence, the effects of which will be felt for a long time. The case stemmed from a claim by the conservative evangelical owners of the Hobby Lobby chain of craft stores that the Obama administration’s implementation of the Affordable Care Act included four kinds of contraceptives that they considered to be abortifacients, and that therefore the inclusion of these drugs in their company health plan violated their religious freedom under the 1992 federal Religious Freedom Restoration Act (RFRA).

Even though the drugs are not considered to be abortifacients by the American College of Obstetrics and Gynecology, a divided Supreme Court agreed that requiring the company to comply with this aspect of the implementation of the Affordable Care Act was a violation of the religious freedom of the evangelical owners of the company. The Court broke new ground in asserting that closely-held private corporations such as Hobby Lobby held certain religious rights under the First Amendment. The Court also broke new ground by interpreting RFRA to mean that third parties could fall under the scope of the Act, and not merely individuals harmed by government overreach.

“The Christian Right has systematically transformed itself into a formidable 21st century theocratic political movement, developing an electoral capacity that is broad and deep, even as organizations and leaders come and go.”

Allowing a religious exemption made it a transformational, conservative civil rights case regarding the meaning and scope of religious freedom. One result was that the religious beliefs of the owners trumped the beliefs and health interests of their employees. The scope of the decision is being tested in further litigation. How far the religious rights of companies like Hobby Lobby and, for that matter, non-profit organizations can go in restricting the availability of contraception and perhaps other medical care of which they do not approve, remains to be seen.

The most visible implication has been the way that the Right then used the third party principle to try to allow conservative Christian business owners to deny service to married same-sex couples, or those intending to be married. The argument (which is disturbingly similar to arguments against recognition of interracial marriage and relationships in the last century) is that a business discriminating against same-sex couples is exercising a reasonable extension of their religious opposition to marriage equality.

State legislation that included the Hobby Lobby principle in this way has been attempted in several states, but has so far only been enacted in Mississippi. A Hobby Lobby-type bill that passed in Indiana was later amended to explicitly ban discrimination, following a national outcry.

Are there other cases of note driving this trend?

Yes, one underappreciated aspect of the wider trend is something called “religification.” A number of Christian right legal agencies have produced manuals for churches and related institutions, to rewrite such things as job descriptions to extend the legal definition of “ministry” in order to seek exemption from labor standards and civil rights laws, and to inoculate themselves against discrimination lawsuits.

Much of this is based on the 2012 U.S. Supreme Court ruling in Equal Employment Opportunity Commission (EEOC) v. Hosanna-Tabor Evangelical Lutheran Church and School. The court ruled that the religious duties of a teacher fired in a discriminatory way insulated the mainline church school from antidiscrimination laws under the longstanding ministerial exemption of the Civil Rights Act.

We have seen this manifested in some Catholic school systems, where Church officials are trying to extend ministerial functions and enforcement of church doctrine on employees, whether or not they are Catholic. This is all part of the strategy of religious exemption from laws and regulations with which they disagree.

This is not limited to efforts by Christian Right groups to seek religious exemptions for businesses from providing services such as cakes and flowers for same-sex weddings.

For example, the conservative Christian Legal Society encouraged and assisted a number of conservative evangelical and Catholic colleges to seek exemption from title IX of the Civil Rights Act, which prohibits sex discrimination. About two dozen schools have been granted such exemptions by the civil rights office of the Department of Education.

How has the religious right evolved over the years?

Conservative Christianity has systematically transformed itself into a formidable 21st century theocratic political movement, developing an electoral capacity that is broad and deep, even as organizations and leaders come and go.

Perhaps most significantly, conservative Catholics and evangelicals have sufficiently set aside their historic animosities to cobble together one of the most formidable political movements our country has seen. Although making political prognostications is always dicey, it seems likely that this elections season will demonstrate this in ways that will make most of us wonder what went wrong. The other dimension of the success of the Christian Right is the failure of every sector to its left, including moderate Republicans, to adequately address these changes and the challenges they bring to constitutional democracy and our best aspirations for a more just society.

Why issue this report now? 

Religious freedom and equality is something that most of us have taken for granted. But the Christian Right is hell-bent on redefining it to the point where it no longer means what most reasonable people think it means.

A more comprehensive and integrated discussion of the religious freedom strategy of the Christian Right is urgently needed. These things are often viewed from the heat-of-the-moment concerns about such matters as anti-LGBTQ discrimination and erosion of access to reproductive health services.

I have never liked the term “culture war,” but if we can use that metaphor, we need to see these serious concerns as battles in a much larger struggle over the vision of what kind of society we will have.