Although freedom of religion enjoys federal and state constitutional protections, the Christian Right has argued, for some time now and with some success, that religious liberties are under attack by LGBT-rights and reproductive-rights activists. The gist of the argument is that laws and policies favoring same-sex marriage, adoption by gay couples, and access to contraceptives and abortion trespass on the rights of persons who oppose such measures based on their religious beliefs.
But a new report shows that the religious-liberty-under-attack refrain masks an intention to discriminate.
"There is in the U.S. a very well-funded, organized, well-conceived, and well-coordinated campaign to redefine the term 'religious liberty' to include the so-called liberty of individuals who wish to discriminate against LGBT individuals or who wish to restrict access to reproductive health care to make discriminatory decisions," said Jay Michaelson, author of a recently released, 60-page report, "Redefining Religious Liberty: The Covert Campaign Against Civil Rights."
Michaelson was speaking last Monday during a telephone conference call for reporters. An author, activist, and lawyer, Michaelson is a fellow at Political Research Associates (PRA), a Boston-based progressive, social justice think tank. He holds a Ph.D. in Jewish Thought from Hebrew University and a law degree from Yale University.
The idea that civil rights impacts religious liberty is not new, Michaelson explained. It dates back decades to an IRS decision revoking Bob Jones University's tax-exempt status for racially discriminatory policies, a decision upheld by the US Supreme Court.
Bob Jones University "was part of a last ditch effort to maintain racially discriminatory institutions," the report states, adding, "Then, as now, the 'religious liberty' in question was the liberty to discriminate against others."
Right now, "what's essentially happening," said Michaelson "is a coordinated campaign to redefine the term religious liberty and reframe the questions of LGBT equality and reproductive rights."
Take an example from the report of a New Mexico wedding photographer (Willock v. Elane Photography), who was fined $6,000 for refusing to photograph a same-sex couple. In the religious liberty frame, the photographer's rights — her freedom of religion not to sanction a same-sex union — are at stake. In the civil-rights frame, the couples have the right to be free from discrimination.
As Michaelson notes, the religious liberty framing inverts the victim-discriminator dynamic. "It's a 180-degree turn," he said. "In the religious liberty context, prohibiting the discrimination is itself a form of oppressing religious liberty."
The Willock case turned on anti-discrimination law and on the photographer's status operating a public business. Same-sex marriage was not legal when the case was decided. And yet the Christian Right often cites it as a reason to oppose same-sex marriage.
Another tactic of the of the religious liberty campaign is an attempt carve out faith-based exemptions in same-sex marriage and non-discrimination laws of general applicability.
The question arises, however, are these legitimate exemptions for certain religious organizations and individuals, like clergy, or are the exemptions really about eviscerating the laws themselves?
Michaelson is comfortable drawing the line for exemptions at "the church house door," he said, but is wary of extending that line to situations where "religious organizations are operating in more or less secular capacities," such as hospitals and agencies providing social services.
"Even if religiously affiliated, we cannot have a situation where large businesses and huge corporations don't have to obey the same laws as everybody else," said Michaelson. "Americans don't believe in discrimination."
The report identifies key players behind the effort to redefine religious liberty, including conservative Catholic funded organizations that are producing religious liberty documents and rhetoric, which is then replicated by Christian Right evangelical organizations.
"The leading organization is the Becket Fund for Religious Liberty, a public-interest law firm based in Washington, D.C.," said Michaelson who went on to name others behind the effort, including the U.S. Conference of Catholic Bishops, the Alliance Defending Freedom (formerly the Alliance Defense Fund), the Christian Legal Society, Ethics and Public Policy Center, and the Family Research Council. These organizations are funded by private donors and by the Knights of Columbus, a Catholic fraternal organization, he said.
"The same networks and organizations doing the work now on religious liberty were forged in the pro-life movement," said Michaelson. "It is essentially the pro-life movement taking on a new rhetoric, for an old cause."
Unlike the pro-life movement, however, the religious liberty campaign has a significant academic presence, he said, pointing to the recently established Center for Religious Liberty at Stanford University, funded by the Becket Fund. And religious liberty campaign has succeed in marshaling influential academics, namely Douglas Laycock, a distinguished professor at the University of Virginia Law School, and the conservative Catholic Robert P. George of Princeton University.
The report also discusses the tactics of the religious liberty movement, documenting its public relations campaign to convince Americans that religious liberty is indeed under attack.
"So far the strategy has not been very successful," said Michaelson, noting that 39 per cent of Americans believe religious liberty is under attack in general. "However, it has had a significant impact on specific questions."
Michaelson pointed to a recent example, the Minnesota referendum, where voters defeated a ballot measure that would have amended the state's constitution banning same-sex marriage.
"One of the leading arguments by the anti same-sex marriage side [was an assertion that] if same-sex marriage passes, your minister will be compelled to solemnize gay weddings in your church," Michaelson explained.
Such an assertion is patently false. "Not a single gay rights activist anywhere would make such a claim, and no court would uphold it," he said. "No religious institution can be compelled to provide any kind of service that violates the tenets of the religion, whether it's mixed race marriage, or mixed religious marriage, or a same-sex marriage."
But research from robo calls in Minnesota found the anti same-sex marriage assertion "was quite effective," said Michaelson. "The number one concern among those opposed to same-sex marriage was that their church or pastor would be forced to solemnize a same-sex wedding."
There is a take away point for marriage equality advocates. Data from the report suggests that "conservative 'religious liberty' advocates will succeed if they can continue to blur the lines regarding what same-sex marriage legislation would actually do."
Alternatively, the report data suggests "that if progressives state clearly and loudly that no church will ever be compelled to perform a same-sex marriage," then "many opponents will now become supporters."
In all, the religious liberty campaign presents progressives with a more complicated, nuanced landscape to advocate LGBT equality. "No one wants to oppose religious liberty," said Michaelson, explaining the issue is not about "imposing the bible on anyone. The language is civil not theological."
Nonetheless, he said, "Progressives have begun to recognize this is a front in the culture war, that religious liberty is a code word, like family values, not applied everywhere only selectively on reproductive rights and LGBT equality."
Still, "there has yet to be any unified response," said Michaelson. "Among specialists, and in certain areas, there's been a lot of excellent work. Yet in the wider LGBT movement, there is little understanding of the religious liberty campaign, and what it seeks to accomplish."
© Copyright. Chuck Colbert. All rights reserved.
