The Tragedy of Religious Freedom

Rev. Mark Lawrence, bishop of the Episcopal Diocese of South Carolina testifies in 2014.

There has been a lot of talk lately about religious exemptions—legal arrangements that excuse individuals and groups on faith-based grounds from laws and regulations that would otherwise apply to them. One law professor, Marc DeGirolami, has claimed these disputes highlight the “tragedy of religious freedom”: that is, the realization that “decision making in this area… will be forever burdened by tragic outcomes, results that sacrifice important values whose loss cannot be compensated by the triumph of others.”

Consider these stories from the past few weeks alone:

  • Wheaton College received a permanent injunction permitting it to not comply with the Affordable Care Act’s requirement that it simply submit a form declaring its religiously based opposition to covering contraception for its employees;
  • Duquesne, a Catholic University in Pennsylvania, asked a federal court to review the National Labor Relations Board’s decision that Duquesne does not qualify for a religious exemption to laws concerning the unionization of some of its faculty;
  • The breakaway Protestant Episcopal Church in the Diocese of South Carolina, which split from the national Episcopal Church over issues of sexual diversity, asked the Supreme Court to review a state high court ruling. The South Carolina Supreme Court had resolved a property dispute between the groups by waiving the requirements of South Carolina’s trust laws in favor of the national church’s internal rules concerning church property;

These may be tragedies, at least in DeGirolami’s sense, but they’re also conflicts about religious groups’ right to self-determination. Let me explain why.

Legal exemptions for religious individuals and congregations have long been a part of the U.S. landscape. The Continental Congress waived compulsory military service for pacifists; churches have been exempted from paying federal income taxes as long as the IRS has existed; and Catholic and many mainline Protestant churches administer communion wine containing alcohol to those who are underage.

But in other circumstances, religious people and groups have not been allowed exemptions. Thoroughgoing pacifists may be freed from military service, but those who disagree with a particular war (say, on the basis of Christian “just war” theory) are not. The IRS suspended evangelical Bob Jones University’s tax exemption when the institution refused to change its policies forbidding interracial dating. And while small doses of alcohol are permitted in communion, users of the hallucinogenic substance peyote, which is employed by some Native American groups in their rituals, have been sanctioned criminally for their conduct.

So where to draw the line? It’s important to understand that disputes about religious exemptions have taken on a different tone in recent years. In more than a few instances, as with Sen. Mike Lee’s recently reintroduced First Amendment Defense Act, the state of Mississippi’s Religious Liberty Accommodations Act, and various states’ Religious Freedom Restoration Acts, lawmakers appear to be acting with the intent of waiving the legal consequences that would normally befall those who engage in discrimination against LGBTQ+ individuals and families. This is both a relatively novel interpretation of the time-honored concept of religious freedom and one that, in other contexts, has legally been unsuccessful.

Although it’s an imperfect analogy, consider the claim of the Southern restauranteur who in the 1960s denied service to African Americans on the ground that his religion mandated the separation of the races. (A unanimous Supreme Court called the restauranteur’s defense “patently frivolous.”) Today, there is a similar but not identical logic in some of the controversies on which I have previously reported, especially those of the baker who wouldn’t create a custom cake for a gay wedding and the foster care agency that refused to place children with a lesbian couple.

The challenge today is how to distinguish between, on the one hand, attempts to license discrimination that come cloaked in the language of religious freedom and, on the other hand, genuine disagreements about how people and institutions of vastly different convictions can live together in a pluralistic society. Simply to deny (or, for that matter, to grant) every claim for a religious exemption would produce unjust results incompatible with longstanding U.S. commitments and principles of law.

One complication is that the cases that have come forward do not follow a single pattern. In many of them, to be sure, an individual or group with more conservative religious views has sought constitutional protections against what they perceive to be the encroachments of an increasingly liberal culture. But this is not always true: the current Episcopal Church case, for instance, features a progressive national church that has secured an exemption from state trust laws against a breakaway conservative group.

Another complication occurs in cases where the legal or political claims at issue have some special status internal to a religious tradition but, at the same time, are implicated in questions of public policy. The three disputes I mentioned at the beginning of this article all fall into this category, even if they differ substantially in other respects.

In the Wheaton case (as in related cases brought by other religious entities, including the Little Sisters of the Poor and Notre Dame), the college’s belief is that filing a form with the government indicating its opposition to contraceptive coverage makes it complicit in the provision of that coverage. Not every Christian group, and not even every theologian or ethicist within Wheaton’s own tradition, would agree—there is an extensive literature within Christian ethics about how closely involved one has to be with the commission of a sin in order to be complicit in it. Yet, thanks to a policy shift by the Trump administration, Wheaton was able to have its claims vindicated in the form of a permanent injunction.

The Duquesne case presents a variant on this theme. There, the university is charging that the National Labor Relations Board erred in attempting to decide whether or not Duquesne is sufficiently religious to merit an exemption to the rules governing the unionization of some of its faculty. Previous federal court decisions criticized the NLRB for “intrusively,” and unconstitutionally, inquiring into the religious character of educational institutions, but the NLRB’s most recent procedural test for determining whether or not a university is exempt has yet to undergo judicial review. The underlying question is similar to Wheaton’s: is it the university’s identification of itself as “a Catholic and Spiritan university” that determines whether it qualifies for an exemption, or is some level of government review of that self-identification also called for?

And finally, in the Episcopal Church dispute, the central question is whether the state should defer to the church’s internal regulations governing its property—which requires parishes to hold their property in trust for the national church and the local diocese—or should it treat the church as it would any other party to a dispute of this sort? The South Carolina diocese, which broke away from the national church in 2012, alleges that since it no longer accepts the authority of its former denomination, it would be unfair for civil courts to allow the Episcopal Church’s rules to trump state law. The breakaway diocese has appealed to the Supreme Court, which recently asked the national church to reply.

In a word, all these cases are about self-determination—the capacity of a religious institution to decide for itself what it means to be complicit in what it views as sin, to legally identify as a religious institution, or to retain property once it separates itself from its parent. Of course they don’t exist in a vacuum; these cases involve the self-determination of entities who benefit (say, via tax-exempt status or federal financial aid dollars) from a society within which they sit that does not necessarily recognize their authority or values. Courts have traditionally been reluctant to intervene in churches’ internal affairs and have tended to take churchly assertions of belief and identification at face value, lest judges find themselves in the uncomfortable (and likely unconstitutional) predicament of assessing the sincerity of an individual’s or institution’s convictions.

It’s clear that for at least the foreseeable future, religious exemptions will remain the subject of hotly contested battles in courts and legislatures. There is no easy solution, since as legal scholar Kent Greenawalt has noted, the two Religion Clauses of the First Amendment often stand in tension with each other and, as a result, “a good bit of the prevailing law is genuinely confusing.” The question I have been raising here—who, if anyone, should be the arbiter of whether a behavior is sufficiently grounded in religious conviction to qualify for an exemption that might be available—is just a starting point.