Redefining Religious Liberty: The Covert Campaign Against Civil Rights

MARCH 2013 Challenging the Right, Advancing Social Justice REDEFINING RELIGIOUS LIBERTY The Covert Campaign Against Civil Rights by jay michaelson WWW.POLITICALRESEARCH.ORG Political Research Associates (PRA) is a progressive think tank devoted to supporting movements that are building a more just and inclusive democratic society. We expose movements, institutions, and ideologies that undermine human rights. Copyright ©2013, Political Research Associates Political Research Associates 1310 Broadway, Suite 201 Somerville, MA 02144-1837 www.politicalresearch.org cover photos • crankyT for iStockphoto • dra_scwartz for iStockphoto • American Life League design by rachelle galloway-popotas, owl in a tree MARCH 2013 REDEFINING RELIGIOUS LIBERTY The Covert Campaign Against Civil Rights by jay michaelson PREFACE ALMOST AS SOON AS THE U.S. SUPREME COURT made women’s access to abortion a constitutional right in Roe v. Wade, the Senate passed the first “conscience clause” allowing private (largely Roman Catholic) hospitals receiving federal funds to refuse to provide abortions or sterilizations on “the basis of religious beliefs or moral convictions.” Over the years, antichoice forces have won more “conscience clauses,” allowing health care professionals like pharmacists and physicians to refuse care based on their own religious or other beliefs. These same struggles reverberate through the effort to expand health care coverage in the Affordable Care Act (ACA). To try to secure votes from antichoice Democrats, President Obama issued an executive order that reinforced and expanded the legal reach of the 1977 Hyde Amendment, barring federal funding of abortions except in the case of rape, incest, or when the life of the woman would be endangered. It outlined new legal protections for health care facilities and providers who are unwilling to provide, pay for, provide coverage of, or refer people to abortion care. Finally, the executive order prohibits tax credits and cost-sharing reduction payments to pay for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered) in the health insurance exchanges beginning in 2014. In the end, the ACA passed with only Democratic votes in favor of the law and zero support by Republicans. Although most reproductive justice advocates agree that the landmark Patient Protection and Affordable Care Act provides unprecedented gains for women’s health by ending discrimination based on pre-existing conditions, expanding Medicaid eligibility, and requiring contraceptive coverage, the antichoice Right’s long term work to dismantle abortion remains effectively intact. And as reproductive justice advocates also argue, if reproductive healthcare is compromised for low-income women, often women of color, by encroaching funding restrictions, we cannot even begin to claim we’ve achieved comprehensive healthcare coverage for women. As researcher and activist Jay Michaelson shows in this report, a coalition largely made up of Roman Catholic elites and right-wing evangelicals continues its battle to undermine the promise of the Affordable Care Act by pushing for an even broader realm of religious exemptions in the name of defending religious liberty. Michaelson names the key intellectuals, Religious Right organizations, such as the U.S. Conference of Catholic Bishops, and legal groups, like the Becket Fund, that are working together to advance a discriminatory agenda that would allow employers to put contraception coverage out of reach of their employees. The Religious Right, writes Michaelson, is working to redefine existing constitutional protections of freedom to (and from) religion to mean the right of conservative Christian individuals and businesses to practice discrimination otherwise prohibited by law. That means, for instance, expanding exemptions to allow major companies, like the craft-store giant Hobby Lobby, to refuse contraceptive coverage in its employee healthcare plans. With 525 stores in 42 states, Hobby Lobby’s founder David Green is a substantial employer; the Becket Fund is representing the company in court. To date, according to this report, there are 49 pending cases, many represented by the Becket Fund, of companies and nonprofits—including universities—claiming that observing the contraceptive coverage requirement is a violation of their religious liberty. REDEFINING RELIGIOUS LIBERTY <<< PAGE 4 >>> WWW.POLITICALRESEARCH.ORG Finally, the right-wing campaign peddles propaganda rich with misinformation about the health care law, scaring small business owners and attempting to create public sympathy for multimillion dollar companies like Hobby Lobby. In unpacking the Right’s sophisticated campaign to redefine religious liberty, Michaelson shows how reproductive justice and the LGBTQ community are just the Right’s latest targets of old fashioned discrimination—excused on religious grounds. As in the age-old debate about prayer in schools or the display of crèches on public land, the Right inverts who is the oppressor and who is the victim. “The Christian Right turned antidiscrimination arguments on their heads,” he writes. “Instead of public prayer oppressing religious minorities, Christians are being oppressed by not being able to offer them.” We should not be fooled when women’s and LGBTQ rights are at stake. Malika Redmond, M.A. Lead Gender Justice Researcher Political Research Associates Somerville, Massachusetts REDEFINING RELIGIOUS LIBERTY <<< PAGE 5 >>> WWW.POLITICALRESEARCH.ORG FOREWORD POLITICAL CONSERVATIVES SEEM TO HAVE FOUND A POTENT ARGUMENT in current debates about LGBTQ equality and reproductive health when they claim that their religious liberty is threatened. The potency comes not from the truth or validity of this claim, but from the fact that such a claim puts progressives into a quandary. Religious liberty is one of the most cherished values of American society, and progressives esteem this principle no less than conservatives do. As a result, progressives often tread too delicately in this area, for fear that they will be forced to choose between falsely competing values of liberty and equality. This dilemma becomes exacerbated if, like me, you are a progressive person who strongly identifies with a faith tradition. As a Catholic who works for LGBTQ equality, my loyalties to faith and justice sometimes pull me in opposite directions when the argument for religious liberty is raised. As a practicing Catholic, I want to be sure that the government is not going to interfere with my church’s ability to govern itself. As an advocate for LGBTQ issues, I want to make sure that equality is served. Added to this dilemma is the uncomfortable knowledge that my church’s bishops are often the ones sounding the alarm for religious liberty, and often in spurious ways. With the appearance of Jay Michaelson’s report, “Redefining Religious Liberty: The Covert Campaign Against Civil Rights,” these tense internal tugs of war between liberty and equality and between faith and justice have been greatly ameliorated. With fairness and precision, Michaelson documents how arguments for religious liberty have been manipulated to play on the fears and values of both conservatives and progressives, as well as people of faith and secularists. His analysis clears a path through the morass of contradictory allegiances that many people experience when the question of religious liberty is raised. This report serves as a primer for all interested in the many intricacies surrounding the religious liberty debates. Legal, political, and religious observers alike will benefit from the succinct history, the objective reliance on facts and data, and the analysis of how arguments are constructed, and how they can be refuted. Advocates will learn strategies to engage in debate in intelligent, compassionate, and effective ways. Michaelson is uniquely positioned to report on this matter. With a Ph.D. in Jewish Thought from Hebrew University and a J.D. from Yale Law School, he offers a perfect bridge between the worlds of religion, politics, and jurisprudence that impact the religious liberty debate. As the founder of the Tibet Oral History Project, which records the testimonies of Tibetan victims of the Chinese Occupation, Michaelson is certainly not a stranger to the personal and political realities of religious and governmental entanglement and oppression. His dual background in law and religion brings a depth to this report which is missing from many other discussions of the topic. Most refreshing and inspiring in Michaelson’s report is that he maintains a balance of a deep respect for religious leaders and tradition—and, indeed, their liberty— while also deeply valuing the civil liberties tradition of American history and culture. His analysis is a reminder that the goal of this debate is not to have a victor and vanquished, but to build an American society where honesty, fairness, and equality reign. Michaelson throws out the traditional binaries in this debate—religious vs. secular, conservative REDEFINING RELIGIOUS LIBERTY <<< PAGE 6 >>> WWW.POLITICALRESEARCH.ORG vs. progressive. The realities are much more complex than these categories can express. For example, not all religious people feel that their faith is threatened by policies which promote LGBTQ equality and reproductive health for women. In fact, for many religious people, it is indeed their faith which motivates their advocacy for these principles. So framing the debate as a war between church and state is not only inaccurate, but it also plays into the hands of proponents of the religious liberty argument who want to claim victim status. Similarly, those who espouse religious liberty arguments against progressive measures often fail to recognize that in doing so they are in fact trampling on the liberty of religious people who support such measures. Political conservatives are not the only ones whose religious liberty needs protection. No single religious leader speaks for all religious people. No single Christian leader speaks for all Christians. Not even does any single Catholic leader speak for all Catholics. Religious liberties of various faiths can sometimes conflict—one reason why this issue needs to be mediated by neutral parties. Because of these complexities, Michaelson wisely advises supporters not to fall into the trap of demonizing religious people, many of whom, in fact, agree that religious liberty is not under attack by progressives. Demonizing serves no productive purpose and only feeds the opposition’s paranoia that they are being attacked. The religious liberty debate must be won on its merits, on the fairness inherent in the American value system, and not on alarmist rhetoric about secret and manipulative enemies. Both sides court peril when they seek to demonize. Indeed, one of Michaelson’s most important recommendations from this report is that a faithbased response to the religious liberty argument is strongly needed to be part of this conversation. Such a response would not only prove invaluable strategically, but it would help to save religious groups from the worst elements within their ranks. For example, while Catholic leaders have been among the most vociferous proponents of the religious liberty argument, there are many Catholic thinkers who oppose this strategy because they uphold the lesser-known Catholic principle that an individual must ultimately be ruled by one’s conscience, not by the dictates of doctrine or authorities. A faith-based response to religious liberty would help to unearth the hidden gems within faith traditions which value conscience, equality, and justice. Such resources are needed to arrive at faith-based answers to the question of religious liberty, which will coincide with our American political tradition. The evident power and strength of the advocates of the religious liberty argument indicate that this debate will continue to be part of our national conversation for a long while to come. Michaelson’s contribution can reshape the landscape of the debate so that the civil rights of individuals and our heritage of religious liberty do not have to be opposed, but can live in harmony and mutual support of each of these important traditions. Both religious and secular leaders will find his report an important tool in their work to build a nation where liberty, equality, and justice interact to protect all people and institutions. Francis DeBernardo Executive Director, New Ways Ministry March 2013 REDEFINING RELIGIOUS LIBERTY <<< PAGE 7 >>> WWW.POLITICALRESEARCH.ORG ACKNOWLEDGEMENTS I WOULD LIKE TO THANK ALL THOSE who read and shared their thoughts on this report. Particular thanks to the team at Political Research Associates: Tarso Luís Ramos, Abby Scher, Malika Redmond, Maria Planansky and Alex DiBranco—and to interns Alexandra Zadel and Michael Juhasz. Also deep thanks to Jeremy Adam Smith, Frederick Clarkson, Francis DeBernardo, Sally Steenland, Pam Spees, Loretta Ross, David Nolan, and Gretchen Borchelt. -Jay Michaelson REDEFINING RELIGIOUS LIBERTY <<< PAGE 8 >>> WWW.POLITICALRESEARCH.ORG TABLE OF CONTENTS PREFACE ................................................................................................................... 4 FOREWORD .............................................................................................................. 6 ACKNOWLEDGEMENTS ....................................................................................... 8 TABLE OF CONTENTS............................................................................................. 9 EXECUTIVE SUMMARY .......................................................................................... 10 INTRODUCTION....................................................................................................... 13 HISTORY .................................................................................................................. 18 Early History ..................................................................................................................18 Current State of the Law .............................................................................................21 Current State of the Conservative “Religious Liberty” Meme .............................22 MAJOR THEMES ..................................................................................................... 25 Fact and Fiction ............................................................................................................25 The War on Religion ....................................................................................................25 Martyr Narrative ..........................................................................................................26 Inversion of the Victim-Oppressor Dynamic .........................................................................................................................27 Stages of Dominion......................................................................................................28 ISSUES AND EFFECTIVENESS ............................................................................. 29 LGBTQ Issues: Same-Sex Marriage as Flashpoint ................................................29 Reproductive Rights: The HHS Provision as Flashpoint ........................................33 RECOMMENDATIONS ............................................................................................ 38 APPENDIX: ORGANIZATIONS AND FUNDERS .................................................. 40 BIBLIOGRAPHY ....................................................................................................... 41 ENDNOTES ............................................................................................................... 43 ABOUT THE AUTHOR ............................................................................................. 49 EXECUTIVE SUMMARY A HIGHLY ACTIVE, WELL-FUNDED network of conserva- tive Roman Catholic intellectuals and evangelicals are waging a vigorous challenge to LGBTQ and reproductive rights by charging that both threaten their right-wing definition of “religious liberty.” The Christian Right campaign to redefine “religious liberty” has been limiting women’s reproductive rights for more than a decade and has recently resulted in significant religious exemptions from antidiscrimination laws, same-sex marriage laws, policies regarding contraception and abortion, and educational policies. Religious conservatives have succeeded in reframing the debate, inverting the victim-oppressor dynamic, and broadening support for their agenda. While the religious liberty debate is a growing front in the ongoing culture wars, it is actually an old argument repurposed for a new context. In the postwar era, the Christian Right defended racial segregation, school prayer, public religious displays, and other religious practices that infringed on the liberties of others by claiming that restrictions on such public acts infringed upon their religious liberty. Then as now, the Christian Right turned antidiscrimination arguments on their heads: instead of African Americans being discriminated against by segregated Christian universities, the universities were being discriminated against by not being allowed to exclude them; instead of public prayers oppressing religious minorities, Christians are being oppressed by not being able to offer them. In the “religious liberty” framework, the Christian Right attacks access to contraception, access to abortion, same-sex marriage, and antidiscrimination laws—not on moral grounds (e.g., that contraception is morally wrong or that LGBTQ rights violate “family values”) but because they allegedly impinge upon the religious freedoms of others (e.g., by forcing employers to violate their religion by providing contraception coverage). The nerve center of the conservative “religious liberty” campaign is a small group of conservative Roman Catholic intellectuals and scholars concentrated around the Becket Fund for Religious Liberty, a public interest law firm based in Washington, D.C., and the United States Conference of Catholic Bishops (USCCB). Anthony Picarello, former counsel of the Becket Fund, left in 2007 to serve as USCCB’s general counsel to work against REDEFINING RELIGIOUS LIBERTY marriage equality. These Roman Catholic organizations are supported by conservative evangelical allies, including organizations such as the Alliance Defending Freedom, Christian Legal Society, and Family Research Council. These alliances were forged in the antichoice movement, which has provided strong turnout of supporters at “religious liberty” events. These alliances were expressed in the Manhattan Declaration, which launched in 2009 when 150 Roman Catholic and evangelical clergy signed a statement to defend “life, marriage and religious liberty.” Examination of these affiliations, history, and current activities makes clear that the campaign to redefine “religious liberty” aims not simply to win religious exemptions to the law, but to contest the authority of secular law itself. The conservative “religious liberty” campaign’s methods include: • conducting a PR campaign to convince Americans that religious liberty is under attack and deploying misleading exaggerations to scare voters, for instance, by falsely claiming that churches will be required to sacralize same-sex weddings and employers forced to pay for abortions; • reframing questions of discrimination (e.g., in the Boy Scouts) as questions of the religious liberty of those who wish to discriminate; • iling lawsuits to limit LGBTQ rights on religious liberty grounds and exploiting ambiguities in the law to conduct a nationwide litigation campaign; • exploiting the structural ambiguity in civil rights law that emerges when fundamental rights clash, as that between religious expression and civil rights; • scaring the public by eliding the differences in legal standards between discrimination against LGBTQ people and discrimination against African Americans and other racial minorities, and suggesting that protections for the latter will be extended to the former; • inluencing legislation to obtain exemptions from antidiscrimination laws, and enabling Christian organizations to discriminate (e.g. student clubs in the Virginia university system); • limiting access to reproductive health <<< PAGE 10 >>> WWW.POLITICALRESEARCH.ORG care, first through a series of religious exemptions for abortion and now by attempting to limit insurance coverage for contraceptives under the federal Affordable Care Act; • attempting to expand existing religious exemptions beyond religious organizations to include private businesses (such as the retailer Hobby Lobby, the plaintiff in a prominent current case); and • marshaling the support of inluential academics such as Douglas Laycock, a distinguished professor at the University of Virginia Law School who successfully argued a key religious liberty case before the U.S. Supreme Court for the Becket Fund, and longtime conservative Catholic campaigner Robert P. George of Princeton University, who was coauthor of the Manhattan Declaration and is a board member of the Becket Fund. They and other scholars provide intellectual leadership for the movement, both within the Christian Right and more broadly. The “religious liberty” campaign’s influence on contemporary politics and debate is increasingly visible. For example: • It was a signiicant topic in the 2012 vicepresidential debate; • It was the Christian Right’s primary argument opposing same-sex marriage in the North Carolina, Minnesota, and Maine ballot initiatives in the fall 2012; • The Ethics and Public Policy Center in Washington D.C. is developing religious liberty caucuses in state legislatures to promote the Christian Right public policy agenda opposing LGBTQ and reproductive rights (At least nine states currently have such caucuses); • The conservative “religious liberty” argument has been instrumental in winning exemptions from same-sex marriage laws and reducing women’s access to contraception coverage; REDEFINING RELIGIOUS LIBERTY • While a June 2012 survey by the Public Religion Research Institute found only 39 percent of Americans believe religious freedom is threatened, polls also show the argument is effective when the Right sows confusion among the public; for instance, in suggesting that ministers would be forced to marry LGBTQ couples if a state legalizes same-sex marriage. Aside from its power in legal arguments, the Right’s “religious liberty” claims appeal to both conservative and moderate Christians by resonating with core martyrdom and persecution narratives. Moreover, among Roman Catholics, it resonates with the memory of Protestant separationists’ anti-Catholicism; among moderates, it resonates with the American civic value of religious freedom. Finally, the Right’s “religious liberty” arguments have won intellectual respectability even among some liberals. Unlike the Christian Right’s usual claims, grounded in religious dogma, the conservative “religious liberty” argument appeals to liberal values enshrined in the Constitution and has the support of respected academics. Liberals may support many of these “religious liberty” causes and key players in the campaign to redefine religious liberty—such as the Becket Fund—have litigated in defense of Muslims as well as Christians. And there is a strong popular appeal to some basic arguments; after all, few want to abridge religious freedom. Yet there should be no mistake: the Right’s “religious liberty” campaign is a key front in the broader culture war designed to fight the same social battles on new-sounding terms, and is part of a movement with old roots in Christian Dominionism (a form of theocracy) and ties to conservative Catholics who launched the antichoice movement. Its deliberate inversion of victim-oppressor dynamic has led to limits on women’s and LGBTQ people’s real freedoms in the name of defending chimerical ones. Proponents may sincerely believe that they are defending religious freedom, but the campaign’s endgame is a “Christian nation” defined in exclusively conservative terms. And it is thus far inadequately opposed. <<< PAGE 11 >>> WWW.POLITICALRESEARCH.ORG To contest the Right’s “religious liberty” argument, social justice forces must publicize the existence of a coordinated campaign to redefine religious liberty, support a faith-based response to it, counter common misinformation, contest the rhetorical frame of “religious liberty,” foster robust academic responses, and take a pro-active rather than reactive political role. Specifically, this report recommends that social justice advocates: 1. Define and Publicize the Coordinated Campaign to Redefine Religious Liberty. While grassroots evangelicals are active in the conservative “religious liberty” campaign against LGBTQ and reproductive rights, it is a coordinated fight led by well-established rightwing institutions like the Becket Fund and Alliance Defending Freedom. The Roman Catholic Church hierarchy and conservative Catholics are important thought leaders for the campaign. The evangelical/Roman Catholic alliance builds on relationships forged in the antichoice movement. 2. Organize A Unified Response There is need for further mapping, coordinating, and building out alliances among advocates countering the Right’s campaign. We need to strengthen the alliance between prochoice and LGBTQ forces, and ally with emerging faithbased responses. Alliances must also be made with liberal business owners and libertarians; this can increase the effectiveness of existing efforts. 3. Counter Misinformation Many conservative “religious liberty” claims rely on falsehoods and scare tactics. Simply put, clergy will never be forced to perform a same-sex marriage. Social justice advocates must learn and be able to counter the Right’s go-to examples of spurious “religious liberty” violations. Understanding and clarifying the Right’s use of the martyr narrative and inversion of the victimoppressor dynamic is a good start to countering right-wing rhetoric. 4. Reclaim the Religious Liberty Frame The term “religious liberty,” like the phrase “family values,” has become a code for the larger culture wars. While religious belief and expression are valid and protected constitutional claims, religious liberty is not the freedom to discriminate and harm others. It does not allow a boss to tell an employee what health care they can obtain, taking away the employee’s ability to make REDEFINING RELIGIOUS LIBERTY moral and religious choices. Nor does sexual and gender equality have to be pitted against religious liberty. The clash is not just between secularism and religion, or equality and religion, but of competing religious values. Challenging the conservative frame also means distinguishing between commercial and religious acts, and valuing competing civil rights; an effective response requires sustained intellectual and legal challenges to the Right’s argument. 5. Develop Academic Responses Social justice advocates must take seriously the influence of right-wing academics on policy and public debate. Religious freedom is a complex topic, which can too often become co-opted by the conservative “religious liberty” campaign. That this happens, often unknowingly, to fairminded academics and legal scholars is something that can be reversed by raising awareness of the issue, including with academic conferences on the topic. 6. Leverage Religious Communities We must build on existing interfaith work to counter the conservative “religious liberty” narrative, informing and organizing more in faith communities. The social justice community must create unity by issuing a common “Call to Conscience” of religious people seeking to maintain their religious liberty against the conservative proposals and policies. LGBTQ faith communities, Jewish and progressive faith organizations, in particular, must be supported in countering the Right’s claims about what religious liberty means. 7. Ongoing Research and Monitoring Social justice advocates and defenders of true religious freedom must become better informed about the right-wing campaign to redefine religious liberty—including its principal players, strategies, and vulnerabilities. Ongoing investigative research into U.S. conservatives’ use of religious liberty legal and rhetorical strategies, both domestically and abroad, is needed to keep advocates and journalists informed about strategically significant developments. Moreover, we must track the influence of conservativec academics on policy and public debate. <<< PAGE 12 >>> WWW.POLITICALRESEARCH.ORG INTRODUCTION the separation of church and state and that of a “Christian nation.” This tension exists right in the First Amendment, which on the one hand pro“GAY MARRIAGE IS THE TIP OF THE spear, the weapon hibits the government from favoring or establishthat will be and is being used to marginalize ing religion, and on the other guarantees the free and repress Christianity and the Church,” said a exercise of it. When a student offers a graduation confidential 2009 strategy document from the prayer, is she exercising her individual religion, National Organization for Marriage (NOM).1 That or impermissibly establishing it collectively? same year, the Manhattan Declaration—a maniWhen a government funds parochial schools, is festo signed by Roman Catholic, evangelical, and it properly nondiscriminatory, or improperly suborthodox Christian leaders—publicly promised sidizing religion? When a court finds religious to resist “any rule purporting to force us to bless values insufficient grounds for the government’s immoral sexual partnerships,” though no samerestricting a woman’s reproductive freedom, does sex marriage law has ever been contemplated to violate the First Amendment? These questions do so.2 And in the summer of 2012, the United have never been definitively answered, because States Conference of Catholic Bishops organized such conflicts are intrinsic to the American conthe “Fortnight for Freedom,” which took on both ception of civil rights. reproductive health care and same-sex marriage as It is thus no surprise that the notion of religious threats to “religious liberty.”3 liberty has been contested since the founding. At This rhetoric is not new: it has been used by refirst, it was largely invoked both by members of ligious conservatives to warn against the dangers marginal and oppressed religious communities— of birth control, abortion, women’s liberation, legalMormons in the 19th century, Jehovah’s Witized gambling, the abandonnesses in the 20th century, ment of the gold standard, Muslims in the 21st cenand even the Protestant tury—seeking protection for Since the rise of the Christian Reformation itself. Yet what their minority practices. Yet Right in the 1970s, conservais new is that it is no longer since the rise of the contive Roman Catholics and confined to the Christian temporary Christian Right evangelicals have insisted that Right. For example, in the in the 1970s, organizations Christianity is under attack. vice presidential debate representing conservaof October 11, 2012, Paul tive Roman Catholics and Ryan accused the Obama conservative evangelicals administration of “assaulting the religious liberties have insisted that Christianity itself is under attack of Catholic charities, Catholic churches, Catholic by forces of secularism, and that notwithstandhospitals. Our church should not have to sue our ing Christianity’s dominant position in American federal government to maintain their religious culture, Christians’ religious liberty is threatened. liberties.”4 In January, 2013, Stanford Law School This position often manifests itself when there inaugurated the first “Religious Liberty Clinic,” have been blocks on imposing the Christian faith thanks to a $1.6 million grant from the Becket on others—such as a stopping a city from displayFund, a leading ultra-conservative, Roman Cathoing a crèche on Christmas, or—as in the latest “relic-affiliated “religious liberty” organization. And ligious liberty” campaign—limiting others’ health conservative “religious liberty” advocates have care choices, and discriminating against racial won religious exemptions from same-sex marriage and sexual minorities under the guise of religion. laws, limited access to contraception and abortion, More broadly, abortion, the lack of school prayer, and inverted the terms of civil rights debates. changes in end-of-life care, even popular culture’s How has this situation come to pass, where supposed “War on Christmas,” are all signs, in this mainstream organizations and politicians are parnarrative, of threats to the “Christian nation” and roting Christian Right rhetoric? Where did this to the very practice of Christianity. narrative come from? And how has it so succeeded Now, there is some basis to these claims, for in limiting the rights of women and sexual minorithere are times when the interests and values ties, where other tactics have failed? of secular society trump the value of religious Ever since the founding of the United States, freedom. The most important example, historia tension has existed between the conception of cally, was the federal government’s challenge to REDEFINING RELIGIOUS LIBERTY <<< PAGE 13 >>> WWW.POLITICALRESEARCH.ORG 18,222 people.9 Notably, however, over half of the religiously justified racial segregation at Bob participating organizations were antichoice orgaJones University. At the end of a long legal battle, nizations, and the national rallies were coordinated the Supreme Court in 1982 allowed the governby leaders from the Prolife Action League and Citiment to strip tax-exempt status from the evanzens for a Prolife Society. Despite the antichoice gelical university because of its policies banning composition of the coalition, the rhetoric of the acinterracial dating.5 This decision did prioritize tion, from its name through the propaganda on its a secular American value (desegregation) over website, was entirely phrased in terms of “religious self-described religious values. Scholar Randall freedom.”10 11 Balmer even argues the contemporary Christian 6 Right was constituted in the ruling’s aftermath. As the Stanford Law School’s “Religious Liberty Clinic” makes clear, however, the conservative Prefiguring contemporary battles, the Right’s “religious liberty” campaign is distinguished from characterization inverted the sense of who is other fronts in the culture war by a significant the victim and who the oppressor: instead of the mainstream academic presence. Professor Douglas African-American students being stigmatized and Laycock of the University of Virginia Law School, discriminated against, the Christian Right argued for example, has for decades that the university was the true been a champion of religious victim, the latest in a long line freedom in alliance with of Christian martyrs. Yet all This coalition of religious liberals; recently, he served the government actually did conservatives and academas the lead attorney for the was strip a tax benefit from ics focuses on two major Becket Fund, a Romanan institution discriminating issues: reproductive health Catholic dominated public against minorities. and LGBTQ rights. interest law firm steeped in The rhetoric of victimthe conservative “religious hood notwithstanding, the liberty” campaign, in arguing an important “reliconservative “religious liberty” campaign is today gious liberty” court case and has written numera well-financed strategy that has successfully ous religious exemption provisions that have limited the civil rights of others. In the last decade, been ratified into law. Laycock is not known as an groups have successfully deployed religious liberty ideologue; indeed, his letters to state lawmakers— arguments in the culture war politically, seeking signed by many other academics—go out of their legislation exempting religious acts from civil way to support same-sex marriage in some form. rights laws and opposing various political actions; Judging by the invitation lists at conservative rhetorically/culturally, recasting antidiscrimina“religious liberty” conferences, there is a regular tion and reproductive health rights as oppressive consortium of these scholars, including Laycock, of religion, creating a sense that the dominant reMarc Stern (counsel at the American Jewish Conligion in America is, in fact, being persecuted; and gress)24, Mary Ann Glendon (a leading antichoice legally, challenging laws supporting lesbian, gay, bisexual, transgender, and queer (LGBTQ) people, theorist and former U.S. ambassador to the Vatican defending antigay plaintiffs, and carving out reliwho is the Learned Hand Professor at Harvard Law gious exemptions on constitutional grounds. School), Carl Esbeck (a distinguished professor at A small network of conservative Roman the University of Missouri School of Law), Edward Catholic intellectuals leads the “religious liberty” Gaffney, Richard Garnett, and Robin Fretwell Wilcampaign, supported by a much wider base of son. Many of these academics make highly conconservative, evangelical Christian Right orgaservative political arguments, send letters to state nizations. Aside from the slight involvement of legislators, and take direct roles in the drafting of the Cato Institute and Heritage Foundation, the legislation. These academics may well believe that latest campaign is made up entirely of religious religious liberty is threatened, but their work has organizations.7 This alliance—Catholic intellectual been enlisted by a mass movement of seeking to end access to reproductive health care and restrict leadership, evangelical base—is drawn from the the civil rights of sexual and gender minorities. antichoice movement. For example, on October Jews also play a small role in the conservative 20, 2012, a coalition of over 60 local and national “religious liberty” campaign. Orthodox organizaorganizations—the Stand Up for Religious Freetions such as the Orthodox Union (represented by dom coalition8 —held a series of national rallies Nathan Diamant), Yeshiva University (represented around the country that, by its own count, drew REDEFINING RELIGIOUS LIBERTY <<< PAGE 14 >>> WWW.POLITICALRESEARCH.ORG PROFILE MANHATTAN DECLARATION PROJECT The Manhattan Declaration12 was co-authored in 2009 by Dean Timothy George of Beeson Divinity School, Samford University; Roman Catholic scholar Robert P. George of Princeton; and the late evangelical Chuck Colson to protest Christianity’s (alleged) growing marginalization in American society. The Manhattan Declaration is available online with a list of its key signers13 and discusses the sanctity of human life, the preservation of traditional marriage, and religious liberty.14 More recently, the Project has attacked insurance coverage for contraceptives under the federal Affordable Care Act. In the section on Religious Liberty, the writers describe efforts to weaken conscience clauses (religious exemptions for doctors wishing not to perform abortions), and complain that: We see this, for example, in the effort to weaken or eliminate conscience clauses, and therefore to compel pro-life institutions (including religiously afiliated hospitals and clinics), and pro-life physicians, surgeons, nurses, and other health care professionals, to refer for abortions and, in certain cases, even to perform or participate in abortions. We see it in the use of antidiscrimination statutes to force religious institutions, businesses, and service providers of various sorts to comply with activities they judge to be deeply immoral or go out of business.15 It states that the signers will not respect any law that compels their institutions to participate in any “anti-life” act. The Declaration garnered significant media exposure at first, attracting most of its current signatories in the two weeks following its release, and gaining coverage from the New York Times16 and the Los Angeles Times17 as well as right-wing18 and Christian19 news sources20 emphasizing its popularity.21 It surfaced again in 2010, when Apple refused to approve a homophobic app that would mobilize supporters to sign.22 Yet while the Declaration is touted on the Right as a significant achievement and rallying point for a powerful social movement, it has apparently lost steam and will likely not meet its original goal of one million signatures, which backers initially claimed it could reach in one month.23 Still, the Declaration has no doubt deepened the Roman Catholic/evangelical coalition and helped popularize conservative religious liberty arguments. by Meir Soloveitchik), Agudath Israel, and Young Israel25 have long provided a multireligious figleaf for Christian Right theocratizing. Recently, however, these Jewish organizations have been joined by more mainstream groups, like the American Jewish Congress, mainly through its general counsel Marc Stern, and the Union for Reform Judaism.26 This coalition of religious conservatives and academics allied with, or perhaps unknowingly co-opted by them, focus on two major issues: reproductive health and LGBTQ rights. Regarding the former, Christian Right organizations have for decades pushed for ever more exemptions (“conscience clauses”) for doctors, pharmacists, religiously affiliated hospitals, and other organizations to opt out of providing abortion services; now, the battle has shifted to employers wishing not to provide coverage for contraception in Affordable Care Act (“Obamacare”) compliant health REDEFINING RELIGIOUS LIBERTY plans. Regarding the latter, conservative “religious liberty” activists have successfully persuaded several state legislatures to grant religious exemptions to organizations and individuals wishing not to recognize an otherwise legal same-sex marriage, in effect creating two classes of legal marriage. They have also successfully exempted many employers from antidiscrimination law. They have won one Supreme Court case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which held that “ministers” are not covered by employment discrimination law (as discussed below, this case may be less significant than conservative “religious liberty” activists suggest). They have depicted bullies as victims, and hegemonic Christianity as an oppressed, minority religion. And antigay activists have also challenged California’s recent ban of “reparative therapy,” aimed at curing gays, on free speech and freedom of religion <<< PAGE 15 >>> WWW.POLITICALRESEARCH.ORG PROFILE THE BECKET FUND Revenue 2010: $2,692,006 Named for the martyred Archbishop of Canterbury, the Becket Fund was founded in 1994 by attorney Kevin ‘Seamus’ Hasson. Originally nonpartisan and an advocate on behalf of many religious interests, the Becket Fund has become more conservative under the leadership of William Mumma. It is the intellectual leader of the right-wing “religious liberty” campaign—it recently litigated and won the landmark Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC case in 2012, allowing religious groups to hire and fire clergy without regard to employment discrimination law. Notwithstanding Becket’s intellectual orientation, it has advanced the specious claim that marriage equality laws will force Roman Catholic churches to perform marriage for gay or lesbian couples. Becket is also at the forefront of the spate of adoption cases in Massachusetts and Illinois, where Catholic Charities pulled out of adoption networks rather than place children with gay or lesbian couples.27 The Becket Fund names the Affordable Care Act as one of the top religious freedom issues facing the United States, and has filed seven suits against it. Not all its projects, however, are culture-war related. For example, the Becket Fund has prosecuted cases in international fora, including representing Muslims before the European Court of Human Rights.28 Organizationally, the Becket Fund is a public interest law firm that represents states, municipalities, and members of many different religious faiths with the goal of defending the constitutional right to free expression of religion. The Becket Fund is at the center of a small, Roman Catholic-dominated group of “religious liberty” activists. Its entire leadership and funder base is made up of conservative Roman Catholics: current executive director William Mumma, founder Kevin Hasson, general counsel Anthony Picarello (who joined the the Knights of Columbus and USCCB29 in 2007 as its general counsel to work against marriage equality, and who recently led the bishops’ campaign regarding “religious liberty”), board members Robert P. George (coauthor of the Manhattan Declaration) and Mary Ann Glendon (former U.S. ambassador to the Holy See and a leading antichoice theorist). Despite its nonsectarian presumptions, the Becket Fund can be viewed as a virtual arm of the Roman Catholic Church. Financially, the ties are clear and deep, as are the personal religious affiliations of key Becket leaders. And philosophically, the Becket Fund is continuing a Roman Catholic campaign that is at least 150 years old to create separate domains for religious people and organizations that are removed from public scrutiny and laws—even as they receive public funds and subsidies. This goes beyond religious freedom; it is about creating a separate religious magisterium beyond the rule of law. Together with Becket’s overlap with neoconservative Roman Catholic thinkers and theological orientations (fights between relativism and objective truth, for example), not to mention the organization’s very name, this situates the Becket Fund within a clear and conservative Catholic context. Given the Catholic-heavy nature of the organization, it is no surprise that the Becket Fund is the second largest recipient of political funding from the Knights of Columbus, according to a report released by the Roman Catholic progressive coalition Equally Blessed in October 2012.30 The report also found the Knights disbursed $15.8 million to anti-marriage-equality groups between 2005-2012, $6.25 million directly to oppose marriage equality and $9.6 million to “build a conservative religious and political culture to oppose marriage equality.” The Equally Blessed report determined that the leadership of the Becket Fund, the USCCB, and NOM are “closely intertwined.” During this period, according to the report, NOM received $1.9 million from the Knights, the USCCB $1.2 million, and the Becket Fund $1.5 million. Today, the Becket Fund’s lead donors are the Lynde and Harry Bradley Foundation and the John M. Templeton Foundation. REDEFINING RELIGIOUS LIBERTY <<< PAGE 16 >>> WWW.POLITICALRESEARCH.ORG grounds, with at least one court success. What is the history of the religious liberty movement, and who is behind it? When has the movement succeeded—and when has it failed? And what can progressives do to combat it? This report proceeds as follows: • An explanation of the history of the conservative “religious liberty” movement as a sociological and legal phenomenon, situating this latest campaign as part of the culture war. • An analysis of the campaign’s major themes, including victim narratives, the war on religion, and others, situating them in the context of the Christian Right. REDEFINING RELIGIOUS LIBERTY • A discussion of the application of rightwing “religious liberty” rhetoric to issues of LGBTQ equality and reproductive rights, and offers an assessment of the movement’s current success and future prospects. • The report concludes with a number of recommendations for those activists seeking to counter this attack on civil rights in the name of religious freedom. • Appendices at the end provide a list of leading religious liberty organizations. <<< PAGE 17 >>> WWW.POLITICALRESEARCH.ORG HISTORY power” to punish religious dissent (blasphemers, experimental religious groups, etc.) and neither the Supreme Court nor the federal government ALTHOUGH THE CURRENT APPLICATION of right-wing did much to protect religious minorities—the “religious liberty” arguments to questions of instiprimary case in point being the Mormons, who tutionally provided health care and antidiscrimiwere persecuted in several states as they traveled nation laws is relatively recent, the deployment of across the country. The 1879 Supreme Court decithe value by conservative Christians is not. This sion in Reynolds v. United States is instructive: section describes the early history of religious lib“While laws cannot interfere with mere religious erty in American culture, and addresses the legal belief and opinions, they may with practices.”34 history of conservative “religious liberty” claims This dictum shows how distant the historical from then until now. reality was from religious liberty rhetoric. Evangelicals, too, had their freedoms curtailed during this period. Forgotten today, the Salvation Army’s EARLY HISTORY original mission was indeed salvation; in a period In conservative rhetoric, the fight for religious of declining church attendance, they held huge liberty dates all the way back to the Pilgrims’ flight outdoor parades, revivals, and rallies in the late from England. To an extent, of course, this is true: 19th century. These ran afoul of local nuisance not only were the Pilgrims religious refugees, but laws, and Salvation Army figures were often jailed they were quite conservative as well, aiming to set and beaten. Unlike the Mormons, they had some up not a pluralistic society where all could worship success in obtaining judicial relief, and were as they wished, but a specific theocratic society, arguably the first conservative religious group to apart from the England that prevail on the grounds oppressed them. In both popthat their religious libular and scholarly texts today, The notion that the U.S. Conerty was being impaired conservatives see themselves stitution protects all religious by secular governmental as heirs to these religious disaction. Overall, however, liberty came about in the last senters and seek to restore an constitutional protection 80 years, and is the result of older, better, more religious of religious liberty was work done by marginal religious United States that, in their limited to mainstream groups, not mainstream ones. view, the founders intended.31 religious activities until The sense in books such as the 1930s. Donald Wildmon’s Speechless Because the subsequent seven decades of this and David Limbaugh’s Persecution is that “Chrishistory has been shaped by crucial Supreme Court tians”—by which is meant conservative Roman cases, we will now examine three of those cases as a Catholics and evangelical Protestants—are now the lens through which to view the history as a whole. persecuted minority. The actual history is somewhat different. As BARNETTE told by Sarah Barringer Gordon in The Spirit of The notion that the U.S. Constitution protects the Law,32 from the 1770s through the 1840s, the all religious liberty is really a creation of the last establishment and free exercise clauses of the First 80 years, and the result of the work of marginal Amendment did not apply to the states, and the religious groups, not mainstream ones. Chief exercise of minority religious practice was sharply among these were the Jehovah’s Witnesses, who curtailed by state and local governments. In 1787, refused to salute the flag or recite the Pledge of six of the original thirteen states had official, estabAllegiance, a controversy that reached fever pitch lished churches, though all had disestablished them in the 1930s and 1940s. Initially, in 1940, the by 1833.323 Religious liberty was simply not a matter Jehovah’s Witnesses lost in the Supreme Court, of federal protection or concern, and as a result, which held (8-1) that the state’s interest in teachminority religious practices were often suppressed. ing patriotism trumped the Witnesses’ religious From the 1840s until the 1930s, a middle pefreedom interests.36 This opinion was overturned riod reigned. While mainstream religious praconly three years later, in 1943’s West Virginia State tices would be protected by courts and the federal Board of Education v. Barnette opinion,37 now seen government, it was clear that states had the “police as a landmark case for religious liberty, though in REDEFINING RELIGIOUS LIBERTY <<< PAGE 18 >>> WWW.POLITICALRESEARCH.ORG PROFILE CHRISTIAN RECONSTRUCTIONISM A more far-reaching and militant version of the culture war in the context of right-wing “religious liberty” claims is waged by the movement of Christian Reconstructionism/Dominionism, which holds that biblical law is the only valid basis for American law. As developed in the writings of Rousas John Rushdoony, Gary North, and others, this claim goes beyond commonly-held views that the United States is a “Christian nation” and argues clearly for theocracy, including the civil implementation of biblical capital punishment laws. This movement, though less active in today’s “religious liberty” campaigns, was ahead of the curve in articulating “religious liberty” beliefs. As early as 1979, the Rutherford Institute (profiled in the next section) successfully defended the firing of a gay church organist,35 a case which prefigures the recent Hosanna-Tabor case. Conceptually, while Reconstructionists would obviously object to incursions upon religious institutions, and might well adopt conservative “religious liberty” rhetoric in doing so, their arguments are distinct from today’s campaigns, and their institutions (such as the Chalcedon Foundation and the Rutherford Institute) have not taken a leading role in conservative “religious liberty” activism. Indeed, the views of conservative “religious liberty” campaigners and Reconstructionists are often opposed. Reconstructionists vehemently oppose public schooling, for example, opting for home schooling or Christian academies; “religious liberty” activists have been heavily involved in fighting for “religious liberty” within public schools by, for example, defending prayer in schools. Reconstructionism is also harder right than the conservative “religious liberty” campaign; Reconstructionists oppose women’s suffrage, for example. Thus while Reconstructionism may be an influence on key “religious liberty” figures, and while Reconstructionists may adopt the rhetoric, evidence has not shown that Reconstructionists are behind the current “religious liberty” campaign. reality it rested on free speech grounds (i.e. that no one could be compelled to recite the pledge). Barnette ushered in protections against compulsory secular expression. Yet it was followed by cases which ushered in protections against potentially coercive compulsory expression of religious views. For example, the bête noire of the Christian Right is Engel v. Vitale, the 1962 case that ushered in the contemporary period of separationist jurisprudence378 and outlawed state-sponsored prayer in public schools, even nonsectarian and noncompulsory prayer. Subsequent cases such as Wallace v. Jaffree (1985), banning moments of silence,39 and especially Lee v. Weisman (1992), banning clergy-given prayers at graduation,40 convinced many traditionalists that there is a secularist war against Christianity. Really, however, they are but the complement to Barnette: religious acts may not (usually) be restrained, yet they may not be compelled either. Indeed, the irony of today’s conservative “religious liberty” campaign is that the same logic of these much-loathed cases is now being REDEFINING RELIGIOUS LIBERTY applied to Christian religious “dissenters.” BOB JONES The most important case for contemporary “religious liberty” claims and the Christian Right itself is the Bob Jones University v. United States case, decided in 1983.41 This was a controversial case at the time, inspiring countless legal and academic articles,42 and, according to some accounts, was the most formative event in the creation of the Christian Right and the politicization of American evangelicals.43 Notably, Bob Jones University was part of a last ditch effort to maintain racially discriminatory institutions; then as now, the “religious liberty” in question was the liberty to discriminate against others. The evangelical Bob Jones University had originally barred African Americans from admission. By the late 1970s, these restrictions had been relaxed, but the university still banned interracial dating on religious grounds. The United States Internal Revenue Service (first under President <<< PAGE 19 >>> WWW.POLITICALRESEARCH.ORG Nixon, though President Carter—an evangelical—is usually blamed by the Christian Right) revoked the school’s tax-exempt status, stating that a nondiscrimination policy was required for tax exemption. The Supreme Court agreed, stating that since the exemption was a privilege, it could only be obtained if one comported with law and public policy.44 Though the decision neither shut down Bob Jones University nor compelled it to change its policies, this perceived infringement on religious liberty fueled the contemporary Christian Right, and was hotly debated in the press.45 The parallels to contemporary “religious liberty” cases are obvious, and the questions asked are the same: may the government compel religious institutions to adhere to the rule of law, or are religious institutions exempt from doing so? The school itself has now become a symbol: When George W. Bush sought to burnish his conservative credentials in 2000, he did so by giving a speech at Bob Jones University.46 Interestingly, this incident thrust the university back into the limelight, and it ultimately removed its discriminatory policy. And to this day, conservative legal theorists and Christian Right writers decry Bob Jones as a wrong decision.47 Moreover, the creation of such enclaves has only increased since, with the increase in home-schooling, Christian academies, and paraacademic institutions such as Liberty University (associated with televangelist Jerry Falwell) and Regent University (associated with Pat Robertson). Bob Jones also prefigures the inversion of the victim-oppressor dynamic that marks contemporary “religious liberty” rhetoric. The real victims PROFILE RELIGIOUS FREEDOM RESTORATION ACT (1993) The Religious Freedom Restoration Act (RFRA) was enacted by Congress in 1993 in response to Employment Division v. Smith,478 which upheld that while states have the power to accommodate otherwise illegal acts done for religious purposes, they are not required to do so. RFRA applies standards that are more protective of the exercise of religion than the constitutional standard. It prohibits government from “substantially burdening” a person’s free exercise of religion, even if the burden is the result of a generally applied rule, unless the government demonstrates that the burden is the least restrictive means of furthering a compelling government interest.49 In 1997, however, RFRA was held unconstitutional as applied to the states.50 It found that Congress could not decree “the substance of the [First] Amendment’s restrictions on states.”501 RFRA does still apply, however, to the federal government. RFRA demonstrates the pattern of protections for minority religions being subsequently used by majorities: though RFRA was passed at least nominally to address unfairness regarding Native American peyote use, this bill and others similar to it have become a way for the Christian Right’s “religious liberty” campaign to proceed. State-level RFRAs began to be enacted shortly after Boerne v. Flores512 (Florida’s RFRA523 is an example of this state-level legislation.), and the American Religious Freedom Program of the Ethics and Public Policy Center (EPPC-discussed in the next section) lists state RFRAs as a suggested type of legislation to be enacted by state-level religious freedom caucuses. Finally, arguments that the HHS contraceptive provision violates the 1993 RFRA were formed shortly after the announcement of the benefit in early 201254 and have persisted since then.55 EPPC’s Ed Whelan has been particularly vocal.56 Lately, HHS benefit opponents have found some initial legal success under RFRA, though only in winning such measures as preliminary injunctions, not in rulings on the merits.57 Florida Senator Marco Rubio58 failed to win passage of his effort to expand the religious exemption clause of the HHS benefit, with the Religious Freedom Reformation Act of 2012.59 Similarly, the Blunt Amendment, which attempted to allow any employer or insurer to refuse to provide any health care service required under the ACAm was defeated in the Senate in 2012. REDEFINING RELIGIOUS LIBERTY <<< PAGE 20 >>> WWW.POLITICALRESEARCH.ORG were Black students at Bob Jones—not the university. Today, the conservative “religious liberty” frame claims that the real victims are not gay students being bullied, women denied accessible health care, and nonreligious students coerced into participating in a religious ceremony. Conservative “religious liberty” rhetoric says that true victims are the university, the bully, the woman’s employer, and the graduation speaker who is not able to recite a prayer. Instead of a conflict between civil rights, this rhetoric focuses only on the rights of the person doing harm to another. ment claims or criminal investigations. HosannaTabor is important, but it is likely not as expansive as conservative sources say it is. It simply holds that churches decide who serves as a minister, and can hire and fire ministers without regard to employment nondiscrimination law. The [First Amendment’s] Establishment Clause prevents the government from appointing ministers,” wrote Chief Justice Roberts, “and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.63 HOSANNA-TABOR However, several additional factors raise the An important “religious liberty” case was decided importance of the case. First, Chief Justice Robin 2012: Hosanna-Tabor Evangelical Lutheran erts spent several pages of his opinion discussing Church and School v. Equal Employment Opportuthe history of religious freedom in America from nity Commission.60 This case was argued by Douga conservative perspective, fulfilling the fondest las Laycock for the Becket Fund, and, in a 9-0 decihopes of conservative “religious liberty” advocates. sion, the U.S. Supreme Court Second, even liberal justices expanded the First Amendrebuffed the government’s ment’s “ministerial exemption” Today, the conservative argument that churches should to employment discrimination “religious liberty” frame be treated like other employers, laws, holding that churches and claims that the real vicholding that the First Amendother religious groups must be ment clearly states that they tims are not gay students free to choose and dismiss their should not be; although the being bullied, women deleaders without government actual significance of this holdinterference.61 It allows churches nied accessible healthcare, ing is to undermine “religious and nonreligious students and some religious institutions liberty” hyperbole that churchcoerced into participating to apply religious precepts in es might be compelled to hiring and firing of ministers in a religious ceremony. solemnize same-sex weddings broadly conceived as includ(a scare tactic used in recent ing religion teachers—includmarriage equality battles). But the most important ing, presumably, allowing employers fire LGBTQ aspect of Hosanna-Tabor may be an issue never people. The Wall Street Journal called it “one of discussed in the case: its application to sexual and [the] most important religious liberty cases in a gender minorities. Surely, though, it is obvious that half century.”62 churches may dismiss ministers for any violation It is not clear that this is so, however. The facts of religious law, including church doctrine on of the case were strange and limited: the employee homosexuality or gender identity—as the liberal in question was dismissed because she opted to justices in Hosanna-Tabor agreed. And Hosannapursue an employment discrimination claim for Tabor is about ministers, not church employees her narcolepsy rather than work out the dispute uninvolved in religious teaching or affiliates. So within the church hierarchy, as required by church while the Religious Right may celebrate Hosannadoctrine. These unusual facts render the exact Tabor, it was a 9-0 decision precisely because it is ambit of Hosanna-Tabor unclear, and though the hard to see it going the other way. decision was 9-0, the justices split among multiple opinions. Most importantly, it is limited to ministers and others who perform minister-like funcCURRENT STATE OF THE LAW tions. Who falls under this category is unclear; LayThe current state of law and public policy is, by all cock has opined a theology teacher would, but an accounts, mixed and inconsistent. As commentaEnglish teacher would not. Chief Justice Roberts tors have noted, the multiple sources of religion specifically limited Hosanna-Tabor to employment cases—some in antidiscrimination law, some in discrimination—it does not preclude sexual harass- REDEFINING RELIGIOUS LIBERTY <<< PAGE 21 >>> WWW.POLITICALRESEARCH.ORG benefits,65 pension law requirements, collective health care policy, some in free speech contexts— has led to a confusing mishmash not only of law bargaining, and day-care licensing requirements.”66 but also of perception and public policy. These exemptions are not available to secular nonNaturally, conservative “religious liberty” profit organizations.67 advocates exploit this situation, selectively choosMinow helpfully points out that the conflict being the most outrageous cases for their purposes. tween the free exercise of religion and civil rights For example, many books in the genre described is as old as the Republic, and is better understood cases that were filed, even though they were as a conflict between one set of civil rights and anlater dismissed. Or, regardother.68 As she puts it, “‘Civil ing discrimination law, in rights’ include rights that are The conflict between the scholar Martha Minow’s potentially at odds with one words, “religious groups another. The term refers to free exercise of religion largely receive no exemptions not only the hard-won bans and civil rights is as old as from laws prohibiting race against racial subordination the Republic, and is better discrimination, some exempand gender-based and sexual understood as a conflict tions from laws forbidding orientation-based discriminabetween one set of civil gender discrimination, and tion; it also safeguards the rights and another. explicit and implicit exempfree exercise of religion.”69 tions from rules forbidding The free exercise of religion sexual orientation discrimiis, itself, a civil right. So it is nation.”64 Many “religious liberty” texts omit this not that it is being sacrificed (or not) as against “civil rights;” rather it is one civil right that occadistinction, stating that the same level of scrutiny sionally comes into conflict with others. applied to race cases would be applied to those involving sexual orientation, which is flatly incorrect. Third, religious organizations already receive CURRENT STATE OF THE CONSERVATIVE a large assortment of exemptions—hardly evidence “RELIGIOUS LIBERTY” MEME of a war against religion. Minow again: “The state and local governments have expanded exemptions As first described by Richard Dawkins, a “meme” for religious groups when their activities bump up is a unit of culture that replicates and perpetuates against property and sales taxes, unemployment itself in different contexts. The conservative “reliPROFIILE UNITED STATES CONFERENCE OF CATHOLIC BISHOPS www.usccb.org • www.marriageuniqueforareason.org The United States Conference of Catholic Bishops (USCCB) has been at the leadership of the conservative “religious liberty” campaign as applied both to health care and LGBTQ issues. In November 2011, the USCCB created an initiative called Marriage: Unique for a Reason, which emphasizes sexual difference between partners as crucial to marriage and conservative “religious liberty” concerns: the legal definition of marriage as between one man and one woman not only protects marriage as an institution, but also protects the religious freedom of those who adhere to that definition. In 2012, the USCCB has provided the organizational and PR muscle to complement the Becket Fund’s intellectual leadership on the HHS provision. Their “Fortnight for Freedom” (June 21-July 4) was a national series of events about religious liberty issues, chiefly the HHS provision and same-sex marriage (including the non-placement of children with same-sex couples). While it won attention in the conservative press, it was largely ignored by the mainstream press. There is a second Fortnight for Freedom scheduled for summer 2013. While the USCCB is an organization established by church law, it has limited powers: any decree of binding legislation must be reviewed by the Vatican before it takes effect, and the USCCB is not permitted to speak on behalf of all the bishops in the United States unless each and every bishop has given his consent. REDEFINING RELIGIOUS LIBERTY <<< PAGE 22 >>> WWW.POLITICALRESEARCH.ORG have been tactical: faced with changing attitudes gious liberty” meme has had just such a life. Henry on LGBTQ rights and a decline in traditional Ford preached about a “war on Christmas and 70 homophobia, such organizations turned to “reliEaster” in 1921 ; Bill O’Reilly picked up the theme gious liberty” as a fallback. However, this rein 2005. In the mid-twentieth century, Roman search did not find hard evidence to support this Catholics described the separation of church and theory. On the contrary, these arguments predate state as a Protestant war against Catholicism; in the successes of the contemporary LGBTQ rights the twenty-first, Protestants and Catholics describe movement in the last five years. In 2003, Alan it as a secular war against Christianity. Sears of the Christian Right legal group Alliance The contemporary use of this latest contemDefending Freedom named the so-called homoporary “religious liberty” meme evolved in the sexual agenda “the principal threat to religious 1990s in crafting “conscience clause” exemptions freedom,” well before that agenda enjoyed its to abortion access, and in response to the LGBTQ recent successes.73 rights movement. The Acton Institute for the Study of ReliBy now, conservative “region and Liberty, for example, ligious liberty” arguments The current “religious was founded in 1990, and began liberty” campaign gained are standard fodder on Fox publishing Religion and Liberty steam when a small group News and among the rightmagazine in 1991. The earliest wing punditry. Phyllis Schlafly, of conservative Roman prominent use of the conservafor example, writes that “the Catholic-affiliated scholtive “religious liberty” argument policies of the Obama adminars and think tanks inject- istration represent the greatest in the gay rights context aped an old argument into pears to be the 1992-1996 fight government-directed assault on new contexts: health care over Colorado’s Amendment religious freedom in American 2, which would have prevented history.”74 Rush Limbaugh, too, and same-sex marriage. any locality from enacting a has alleged that the president is gay rights ordinance. In the assaulting religious liberty75— subsequent court battle, which ended with the and recall that Limbaugh’s comments disparagamendment being found unconstitutional by the ing Sandra Fluke, the Georgetown law student Supreme Court, Colorado argued that one of the advocating for women’s health rights, came in the state’s interests in the amendment was protecting context of a key “religious liberty” battle, the HHS the freedom of religion.71 This appears to be the provision debate.76 first time in which this argument, familiar from the The conservative “religious liberty” claim is contexts described above, was applied to questions firmly embedded in American political culture of gay rights. It was also apparently the first time as well. In the 2012 presidential debates, Repubwhen religious exemptions to gay rights laws were lican standard bearer Gov. Mitt Romney briefly mentioned in a court opinion, when the Colorado mentioned it, saying “in that line that says we are Supreme Court suggested they would be a better endowed by our creator with our rights, I believe remedy for religious freedom concerns.72 Outside we must maintain our commitment to religious tolerance and freedom in this country.”77 It became of these contexts, one does not find such arguments made in the contexts in which we find them an important topic in the vice-presidential debate today until the last decade. For example, it is strikof October 11, 2012. During the debate, Rep. Paul ing that “religious liberty” arguments are almost Ryan (R-WI) said: absent in Didi Herman’s comprehensive 1998 What troubles me more is how this adstudy of the Christian Right’s antigay rhetoric, The ministration has handled all of these isAntigay Agenda. sues. Look at what they’re doing through This conservative “religious liberty” campaign Obamacare with respect to assaulting gained steam beginning in the 2000s, when a the religious liberties of…Catholic charismall group of conservative Roman Catholicties, Catholic churches, Catholic hospiaffiliated scholars and think tanks, who had been tals. Our church should not have to sue making various religious liberty arguments for our federal government to maintain their decades, injected the argument into the new religious liberties. 78 contexts of health care and LGBTQ issues. It is reasonable to wonder whether some of this must REDEFINING RELIGIOUS LIBERTY <<< PAGE 23 >>> WWW.POLITICALRESEARCH.ORG This was a clear reference to the HHS debate and a high-profile replication of the standard conservative “religious liberty” argument on the issue. Note how the generalizations of “religious liberty” rhetoric misstate the issue: No church has had to fight to maintain its religious freedoms; at issue is whether church-affiliated businesses (not churches) must provide the same health coverage (not violate their conscience) as required for all businesses. Vice President Biden’s response was emphatic and accurate, but seemed less persuasive than Ryan’s victim narrative: With regard to the assault on the Catholic church, let me make it absolutely clear, no religious institution, Catholic or otherwise, including Catholic Social Services, Georgetown Hospital, Mercy Hospital, any hospi- tal, none has to either refer contraception, none has to pay for contraception, none has to be a vehicle to get contraception in any insurance policy they provide. That is a fact.79 This response was true on the surface due to Biden’s precise language: no institution has to refer contraception, or directly pay for it, or “be a vehicle to get contraception.” But, as right-wing blogs quickly pointed out, institutions (including some hospitals) do have to include contraception in their insurance plans.80 In any case, the vice presidential debate represented a high water mark for the visibility of the right-wing “religious liberty” argument. We now turn to the major themes of that argument, and their application to issues of women’s and LGBTQ rights. PROFILE ETHICS AND PUBLIC POLICY CENTER (EPPC)’S AMERICAN RELIGIOUS FREEDOM PROGRAM (ARFP) http://www.religiousfreedom.org/ • EPPC Revenue 2011: $2,906,363 Founded in 1976 by Ernest Lefever, a conservative American political theorist, the Ethics and Public Policy Center describes itself as “Washington, D.C.’s premier institute dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy.” It is primarily a think tank that organizes conferences and publishes materials on issues relating to public policy. Its nine program areas include “American Religious Freedom” as well as issues such as “Evangelicals in Civic Life,” “Bioethics,” and “Catholic Studies.” It styles itself as a multi-faith organization. Rick Santorum was a senior fellow at EPPC from 2006 to 2012, and directed EPPC’s Program to Protect America’s Freedom. The Board of Advisors is about half Roman Catholic, with a few Protestants and one Orthodox Jew. (Of its 23 fellows and scholars, all 23 are white, and 21 are male.) Its funders include the Lynde and Harry Bradley Foundation ($3 million between 2001 and 2010), Koch family foundations, Scaife family foundations, Castle Rock Foundation, and the Pew Charitable Trusts. The EPPC has an impressive record of influencing public policy on issues such as abortion, stem-cell research, foreign policy, and now religious freedom. ARFP’s most interesting strategy is to develop “religious freedom caucuses” in nine state legislatures. These caucuses came to fruition in October of 2012, where they were formed in the legislatures of Arizona, Colorado, Florida, Idaho, Kansas, Missouri, New Hampshire, Oklahoma, and Tennessee.105 Modeled on the International Religious Freedom Caucus established in the U.S. Congress in 2006, these new caucuses pursue both state-specific conservative “religious liberty” strategies and “educational materials.” At its National Religious Freedom Conference in May 2012,106 the EPPC announced a goal of forming these religious freedom caucuses in all 50 states by the end of 2013.107 The ARFP has worked closely with the Becket Fund on this initiative.108 This strategy marks a shift, however, from the Becket Fund’s previous focus on litigation. Rather than waiting for lawsuits to be filed, legislators are urged to go beyond the courts in providing religious liberty “protections.” They seek the state equivalents of the federal Religious Freedom Restoration Act.109 REDEFINING RELIGIOUS LIBERTY <<< PAGE 24 >>> WWW.POLITICALRESEARCH.ORG MAJOR THEMES This issue is not simply culturally based, but can be a complex legal predicament. FACT AND FICTION THE WAR ON RELIGION There is a confusing mixture of fact and fiction in Since the 1970s, conservative evangelical Chrisright-wing “religious liberty” rhetoric. For example, tians have adopted the earlier Catholic narrative in North Carolina, equality opponents warned that that there is a determined secularist campaign religious leaders who preached against homo81 to destroy religion and replace it with “humansexuality could be arrested for hate crimes. This ism.”83 Francis Schaeffer, Tim and Beverly LaHaye, is absolutely not the case; the First Amendment’s Jerry Falwell, and Adrian Rogers (the leader of existing “ministerial exemption” would obviously the Southern Baptist Convention following the protect this speech. In marriage equality battles, conservative ‘coup’ of 1979), and many others Christian Right advocates continue to claim that drew on what historian Richard Hofstadter would pastors will be required to officiate at same-sex call “paranoid” themes in right-wing American weddings, which is also not the case. anticommunism, dislocations in traditional life Yet there is some factual basis for conservabrought on by post-1960s flights to the suburbs,84 tive “religious liberty” claims, depending on and changes wrought by the civil rights, women’s, how they are phrased. Some organizations and and gay liberation movements to depict an overall individuals must recognize same-sex weddings war on religion itself. Secularism has become the but only if they operate “public accommodanew socialism85—though in the racist way Presitions.” Some employers must pay dent Obama is depicted in some of for insurance plans that include this literature, it seems the themes contraception but not directly There is a confusing are reunited. for contraception itself. Unfortumix of fact and fiction To some, this battle is liternately, these are subtleties, and in right-wing “religious ally the battle between God and “religious liberty” rhetoric often liberty” rhetoric. Satan. Tim LaHaye, for example, is painted in broad strokes. demands that Christians “resist There is a confusing mixture the devil and… put on the whole of motives as well. Clearly, much armor of God.”86 Beverly LaHaye wrote in 1984 oaf the motivation in this discourse is political, that secularists are “priests of religious humaneither in a naked partisan sense or in the broader ism and are evangelizing our children for Satan.”87 sense of fighting the culture war. This is yet Donald Wildmon’s outrageous tome Speechless is another line of attack against women, LGBTQ of the same ilk. These formulations seem unlikely people, et cetera. There is ample evidence for to appeal to more moderate Christians, and on this: the organizational alliances, the inconsistent the contrary are likely to turn them off. Yet they rhetoric, the peculiar focus on precisely those have a strong appeal among evangelicals. In a areas of sexuality and gender that have been at 1990 survey reported by Sarah Barringer Gordon, issue in the culture wars, the funding from the more than 90 percent of those who self-identified Roman Catholic Church, the antichoice alliances, as evangelicals (not just conservative evangeliand the ease with which “religious liberty” is cals but evangelicals in general) agreed with the simply appended onto existing culture war narrastatement that “Christian values are under serious tives. At the same time, many conservative Chrisattack in the United States today.”88 tians sincerely believe their religious freedom is This rhetoric, even in its extreme form, is not threatened, and they are correct to the extent that simply propaganda but reflects a sincere sense, their religious hegemony is eroding over time, justified by opinion polls, that show the country though of course they are incorrect that this is a moving away from traditional religion89—that an Manichean war waged by secularists. Moreover, old Christian order is waning. Rather than ascribe as has been noted, thoughtful academics have this trend to socioeconomic, scientific, psychologitaken “religious liberty” positions. Once again, cal, or other factors, the Christian Right narrative90 this makes responding to “religious liberty” argulooks for an enemy: Satan, socialism, communism, ments more difficult. It is simply inaccurate to liberals, the War on Christmas, secularists, Barack claim that this is merely the latest front for the 82 Hussein Obama, feminists, homosexuals, evoluculture war, like intelligent design, for example. REDEFINING RELIGIOUS LIBERTY <<< PAGE 25 >>> WWW.POLITICALRESEARCH.ORG become a trope in conservative “religious liberty” tion, abortionists, socialists, humanists—or, best, a discourse: that the “war on Christianity” in part hodgepodge of all of the above. “Religious liberty” results from an improper circumscription of relirhetoric is part of this narrative. Christianity is not gious liberty to simply what one believes in prilosing its power in this narrative; someone is takvate, or within the church walls on Sunday, rather ing it away. than what one practices in all aspects of life.94 It Christianity is still the dominant religion in America, but its power is changing. One recuris this theory that allows conservative “religious ring theme in the right-wing literature is the liberty” advocates to insist that their employsense of a “coming storm,” to quote from an antiment decisions and commercial life are also the marriage equality commercial by the National “free exercise of religion,” and to project a straw Organization for Marriage.91 Like the red menace, man secularist who believes that religion should only happen on Sundays. Of course, this “misconthe secularist danger is imminently looming. The ception” is not actually present in progressive metaphors are appropriately biblical: soon there thought on this subject; rather, the claim is that will be a flood of litigation, a firestorm of controone’s free exercise of religion is one of many civil versy. Indeed, these apocalyptic pronouncements rights, and that it may not necessarily trample on resonate closely with the millennialism that one the rights of another. finds in conservative evangelicalism generally and Christian Reconstructionism/pre-millennialism specifically. The “coming storm” and the End MARTYR NARRATIVE Times are not distant from one another. The theme of the “war on religion” also interIn describing the war on religious freedom, consects with the conservatives’ blend of fact and servative “religious liberty” discourse may seem falsehood in their “religious liberty” arguments paranoid, but to traditionalists, it resonates with as discussed in the previous section. For instance, significant moments in Christian history, such as Roman Catholic legal theorist the early Christian martyrs in Thomas Berg writes that “if the Roman period. The “marIn describing the war on reli- tyr narrative” is best undersexual-orientation discriminagion, conservative “religious stood as theological, rather tion should be treated in all respects like racial discrimithan political, speech. Indeed, liberty” discourse taps into nation—as many gay-rights while many progressives of the martyr narrative found advocates argue—then the all faiths see themselves as in Christian history. precedent of withdrawing resisting an overbearing, federal tax-exempt status from conservative Christian domiall racially discriminatory nance in public life, many charities, upheld in Bob Jones University v. United Christian conservatives see themselves as resistStates, would call for withdrawal from all schools ing a secular, anti-Christian hegemony, a percepand social service organizations that disfavor tion that taps directly into narratives of Christian same-sex relationships.”92 Note the elisions here: martyrdom, including that of Christ himself. from “many gay-rights advocates argue” to a posiMany conservative “religious liberty” camtion that no court has ever taken, from withdrawpaigners have analogized the “persecution” in the ing tax-exempt status to overall “withdrawal,” from United States to that in Nazi Germany. Recently, a racist policy to “disfavor.” The “coming storm,” for example, the pastoral outreach director for is highly unlikely to come in this way. Minnesota for Marriage said that the way HitIn more intellectual circles, the “war on reliler persecuted Jews was that he “removed their gion” is attributed to a false distinction liberals voices in the public square and removed their supposedly make between freedom of conscience, control of their own businesses. So, he stopped worship, or belief on the one hand and the free Jewish people from speaking out in public and exercise of religion on the other.93 According he silenced them.”95 This, of course, is not new to this narrative, as described in such books as rhetoric either: the American Family AssociaStephen Carter’s The Culture of Disbelief, libertion’s Bryan Fischer once attributed the idea of als misunderstand religion and are seeking to church-state separation to Hitler.96 In similarly circumscribe how religion can be exercised. What offensive fashion, Pastor Rick Warren and others Carter called the privatization of religion has now have called the Hobby Lobby case the “equivalent REDEFINING RELIGIOUS LIBERTY <<< PAGE 26 >>> WWW.POLITICALRESEARCH.ORG ficient.” Would she be barred by Roman Catholic doctrine from taking pictures of a Jewish couple? What about taking a photograph of an interfaith INVERSION OF THE VICTIM-OPPRESSOR couple? Or an interracial one? Is taking a photoDYNAMIC graph, as a professional who advertises doing so as a business, a religious act at all? Relatedly, the conservative “religious liberty” arguThird, note Berg’s vague language of “facilitatment has more to do with framing than with facts. ing.” This suggests that the photographer enabled On the question of whether an employer must proor perhaps solemnized the marriage, which is vide contraception coverage in health insurance incorrect; she was merely a photographer. plans, whose rights are at stake? In the “religious Fourth, Berg’s claim elides the difference liberty” frame, the employer’s religious liberty between commercial and personal acts. No one rights are threatened. In the civil rights frame, the is asking the photographer to personally approve employee’s reproductive rights are threatened. of a same-sex wedding; rather, as a business Same facts, but different frames lead to different hanging out a shingle, her studio must adhere to potential “victims,” likewise in LGBTQ cases. In non-discrimination laws, just as it must adhere to one case frequently cited by conservative activenvironmental laws (even if she disagrees with ists (and discussed below), a New Mexico wedthem), labor laws (even if she disagrees with them), ding photographer was fined roughly $6,000 for and truth-in-advertising laws. Likewise with large refusing to photograph a same-sex couple. Whose corporations whose officers object to providing rights are at stake? In the conservative “religious comprehensive insurance coverage. Businesses liberty” frame, it is the photographer’s religious are commercial actors. When interest in not sanctioning a one enters the marketplace same-sex union. In the civil as a business, one agrees to rights frame, it is the couple’s Conservative “religious liba whole host of rules. Perright to be free from gender erty” arguments often have haps one’s religion teaches discrimination. more to do with framing that it is acceptable or even There are several common than with facts. required to defraud unbelievmoves that conservative “reliers; nonetheless, doing so is gious liberty” advocates make illegal. Perhaps one’s religion in such cases. To illustrate, we teaches that women’s hair must always be covered; will focus on one case that is cited many times, nonetheless, one may not require such observance that of a New Mexico wedding photographer who among one’s customers. In all cases, believers are faced legal liability for refusing to photograph a rendering unto Caesar what is Caesar’s by obeying same-sex couple. About this case, Thomas Berg the secular civil law. writes that “It is likely in the future that religious As Professor Chai Feldblum has discussed in dissenters, organizations, and individuals, will several articles,99 religious liberty claims are not more frequently face a Hobson’s choice between absolute. When they bump up against other civil facilitating same-sex marriages against their conrights, they may prevail, or may fall. Yet conservascience and giving up their charitable activities or tive “religious liberty” rhetoric is asymmetrical and small businesses.”98 Let us examine this claim. unclear. What is abridged in cases such as the New First, there is no mention here that refusing to Mexico one is the ability to act in a nonreligious, “facilitate same-sex marriages” is an act of disdiscriminatory way on the basis of a professed crimination against other people, and comes at the religious conviction. Taking a photograph is not expense of their rights. In fact, there is not a single facilitating a marriage, or blessing it, or solemniz“religious liberty” claim that does not involve ing it. It is not a religious act at all but a commerabridging someone else’s rights. cial one, subject to a host of laws, and affecting Second, conservative arguments generally other parties’ rights. invent religious practices where none had existed before. There is no Christian teaching forbidding one from photographing something they may find STAGES OF DOMINION objectionable. Suppose the photographer were a Finally, who may abridge those rights is constantly conservative Catholic who agreed with Pope Beneat play in “religious liberty” discourse. Typically dict XVI’s statement that other religions are “deof the Birmingham bus boycott.”97 REDEFINING RELIGIOUS LIBERTY <<< PAGE 27 >>> WWW.POLITICALRESEARCH.ORG there are five tiers of actors: 1. Churches, clergy, and religious institutions 2. Religious organizations 3. Religiously affiliated organizations 4. Religiously owned businesses 5. Religious individuals The law treats these tiers differently: churches are rarely required to obey antidiscrimination laws, for example, but religious organizations may be, and religious-owned businesses are. Conservative “religious liberty” rhetoric deliberately misstates harms upward, and tactically expands exemptions downward. On the one side, no clergy will ever have to solemnize any marriage against her/his beliefs, yet restrictions on tier 4 or 5 individuals are cynically extended by conservative messaging to tier 1. On the other side, conservative “religious liberty” advocates are clearly pursuing a staged plan to migrate extensions downward. In the current HHS benefit battle, for example, the Obama administration first exempted tiers 1 and 2, and then, in February 2013, exempted tier 3. Yet still the Becket Fund has objected that “millions of Americans”— i.e., tiers 4 and 5—are still unprotected. Similarly, in the New York same-sex marriage debate, existing law exempted tier 1, Republican state senators won exemptions for tiers 2 and 3, but at least one senator held out for tiers 4 and 5, and ultimately voted against marriage equality. Through litigation, legislation, and politicizing, the Becket Fund and others are pushing for “corporate religious exemptions” (tier 4) that would enable corporations to evade a host of civil rights laws because of the religious claims of their shareholders.100 This staged policy must be understood as an attempt to create not religious exemptions, but the evisceration of civil rights protections themselves. If any individual or business can refuse to recognize a person’s civil rights on the pretext of religious belief, those rights are functionally meaningless. It is to the specific rights in question that we now turn. PROFILE BERKLEY CENTER AT GEORGETOWN UNIVERSITY, RELIGIOUS FREEDOM PROJECT http://berkleycenter.georgetown.edu/rfp Georgetown’s Berkley Center is part of the intellectual arm of the conservative “religious liberty” campaign, with Catholic perspectives on “religious freedom” worldwide and domestically.110 This project of the Berkley Center is explicitly Roman Catholic (even more so than the Becket Fund) and features clergy as well as law professors. It recently published Religious Freedom and Violent Religious Extremism: A Sourcebook of Modern Cases and Analysis in December 2012 and is responsible for two key books, Roger Trigg’s Equality, Freedom, and Religion, and Timothy Shaw’s Religious Liberty, Why Now? Unlike ADF, the Berkley RFP is primarily an academic enterprise. Nevertheless, its scholarship is picked up by conservative ideological entities and its work is part of the troubling nexus between suppression of women’s and LGBTQ rights on the one hand, and academic discourse on the other. REDEFINING RELIGIOUS LIBERTY <<< PAGE 28 >>> WWW.POLITICALRESEARCH.ORG and author of the book unChristian has observed, Protestant religious privilege certainly is decreasing, in an age of a multifaith America, which has This section discusses the major issue areas and led to the accurate perception of a loss of religious effectiveness of the conservative “religious liberty” power, framed in an inaccurate assessment of why campaign. Before turning to those specific areas, that power has been lost.104 we note that current data on the effectiveness of So, as we evaluate the effectiveness of conservathe strategy overall are mixed. According to data tive “religious liberty” arguments, the overall metric from the Public Religion Research Institute (PRRI), of effectiveness may be these deeper trends, which 56 percent of Americans do not believe that reliportend a diminishment in the power of religion gious freedom is threatened in America today, with generally to influence public opinion. This is not to 39 percent stating that it is being threatened.101 encourage complacency, but merely to recognize Correlating those data with that (a) the conservative statistics on Americans’ fears of secular encroachreligious beliefs generally— ment have some basis in a To shift from opposing samee.g., 46 percent believe in deeper trend that religious sex marriage outright, to opcreationism102—this suggests communities have yet to posing same-sex marriage as that only very traditionsuccessfully address, and a violation of religious liberty, ally religious people believe (b) strategies for responding religious freedom is actually activists must twist the facts. to “religious liberty” claims being threatened. In other should be cognizant of such words, Becket and others deeper trends and the potenmay be preaching to the choir. Of course, there is a tial for cutting these strategies down at the roots, distinction between responding to a poll that one rather than merely the branches. believes religious freedom is threatened in general, and responding to effective messaging saying a particular act may threaten religious freedom. LGBTQ ISSUES: Moreover, conservative “religious liberty” camSAME-SEX MARRIAGE AS FLASHPOINT paigns are multifaceted and may have success in Few issues have galvanized the Christian Right the courts and legislatures, even if public opinion more than same-sex marriage. As views on the lags behind. subject have evolved with a majority of Americans Interestingly, the PRRI data showed no signow supporting it,111 “religious liberty” rhetoric has nificant difference between Roman Catholics and provided a new frame for old animus. Yet to shift Protestants on this issue: 57 percent of Catholics from opposing same-sex marriage outright, to opsaid religious freedom was not being threatened, posing same-sex marriage as a violation of religious 38 percent said it is. Even more interestingly, howliberty, activists must twist the facts. The broadest, ever, white Catholics tended to be more concerned: and least accurate, “religious liberty” claim is that 49 percent said religious liberty is threatened, 47 members of the clergy will be forced to solemnize percent said it is not. same-sex marriage. “Once federal and state laws It is also worth noting that, amid all of the uphold gay marriage, gays will be entitled to sue “coming storm” and sky-is-falling rhetoric, there anyone licensed by the state that refuses to perform may be some truth to the Christian Right’s fears a marriage,” writes Brad O’Leary in The Audacthat America is growing less religious—and, ity of Deceit: Barack Obama’s War on American demographically, looks to continue doing so. An Values.112 This is universally untrue. All same-sex October 2012 Pew report found that the “nones”— marriage laws specifically exempt clergy from being Americans who are religiously unaffiliated—are forced to sanctify any marriage of any kind. This, of rapidly growing, and now comprise 19.6 percent course, is already the case without such exemptions; of Americans,103 with higher percentages among Orthodox rabbis cannot be forced to sanctify an younger age groups. It is also true, of course, that intermarriage, for example. Yet this myth is an effecgay rights have made astonishing advances in tive one, as we will see below. recent years (even as women’s rights to health It is also not the only myth that appears in this care have diminished over the same period). And rhetoric. There are a handful of cases which appear as David Kinnaman, president of Barna Group again and again as anecdotes, and yet are misrep- ISSUES AND EFFECTIVENESS REDEFINING RELIGIOUS LIBERTY <<< PAGE 29 >>> WWW.POLITICALRESEARCH.ORG PROFILE FAMILY RESEARCH COUNCIL 2011 Revenue: $13,061,417 • www.frc.org The Family Research Council (FRC) is a well-established evangelical organization that is now part of the conservative “religious liberty” campaign. “Religious Freedom” is now one of the three main headers on the frc.org website, and one of 18 subheaders on the sidebar. FRC has produced a number of op-eds and short articles on the subject. They operate a Center for Religious Liberty (CRL), directed by Ken Klukowski. It is unclear how much of FRC budget is allocated to these activities. The CRL falls under the larger umbrella of Religion and Culture at the organization. The organization recently released on its website a webcast, co-sponsored by Voice of the Martyrs entitled the “Threat to Religious Liberty around the World”, hosted by the president of the FRC. While the title mentions “religious liberty” broadly, the webcast focuses on Christians worldwide who face religious persecution.121 The CRL also publishes articles on topics ranging from the persecution of Christians to the HHS provision.122 In addition to the organization itself, FRC affiliates, such as the Family Policy Council of West Virginia (www.familypolicywv.com, 2011 Revenue: $154,785, founded 2007) have also been active in “religious liberty” campaigns. Recently, FPC-WV has been very active in Chick-Fil-A protests and had a large campaign going to require premarital education for all West Virginia families. Similarly, the North Carolina Family Policy Council (www.ncfamily.org, 2010 Revenue: $604,603, founded 1992), was a significant backer of North Carolina’s recent same-sex marriage vote, where conservative “religious liberty” played a strong marketing role in the campaign. One policy statement in the campaign warned that religious leaders who preached against homosexuality could be arrested for hate crimes—obviously untrue. NC-FPC’s website traces the 20-year history of the homosexual assault on Christianity. resented every time. For example: • In Willock v. Elane Photography, discussed above, a photographer in New Mexico refused to take wedding photos of a same-sex couple. The couple sued and won. This case is sometimes used in anti-same-sex marriage arguments, yet the actual holding never mentioned marriage, and there was no same-sex marriage in New Mexico when the case was decided. Rather, the holding was based entirely on antidiscrimination law and on the fact that the photographer was operating a public business. Nonetheless, because it involves a wedding photographer, Willock is routinely trotted out by anti-marriage activists.114 113 • A second marriage-related case is New Jersey’s Bernstein v. Ocean Grove Camp Meeting Association.115 The Ocean Grove REDEFINING RELIGIOUS LIBERTY Camp Meeting Association is a Methodist organization which runs a beachfront boardwalk pavilion open to anyone, but they refused to host a same-sex marriage. The court specifically noted that this was not a case involving a churchhouse, which would be exempted from antidiscrimination laws: the pavilion was found to be a “public accommodation,” and was open to all kinds of events (including non-Christian and secular ones). Thus, it could not discriminate on the basis of sexual orientation. As a result of the discrimination, the pavilion lost its tax exemption, and was promptly assessed $20,000 in back taxes.116 Once again, this case actually had nothing to do with same-sex marriage, which is still not valid in New Jersey. Nor was anyone required to sanctify anything. Nor was the pavilion, or the church, even shut down; it merely lost a tax benefit. <<< PAGE 30 >>> WWW.POLITICALRESEARCH.ORG RELIGIOUS LIBERTY CONCERNS Allowing gay and lesbian couples to marry legally Favor 4% Favor With Religious Liberty Assurance* Oppose Don’t Know/Refused 38% *Question Wording: “If the law guaranteed that no church or congregation would be required to perform marriages for gay and lesbian couples, I would support allowing them to legally marry.” Asked among those who did not initially support same-sex marriage. 52% 6% Source: Public Religion Research Institute, PRRI/RNS Religion News Survey, March 2012 (N=1,007) This case was about a boardwalk pavilion that happened to be run by a Methodist organization. • A third favorite case is Parker v. Hurley.117 Here, a religious family objected to a public school curriculum that included samesex families in a curriculum on diversity. The family lost. This case is not new in theory; there are numerous previous cases where individual parents have tried to change objectionable (to them) elements of a school curriculum, and they have almost always lost. Once again, this case is not actually about same-sex marriage, but about whether one family’s religious views trump the interests of every other student—as determined by the school board, at least—in receiving an education. Yet this case is often presented as evidence that same-sex marriage means children will be taught that the “gay lifestyle” is “equally valid.” EFFECTIVENESS OF THE SAME-SEX MARRIAGE CAMPAIGN One PRRI study118 asked individuals who initially did not support same-sex marriage if their opinion would be different if the law guaranteed that no REDEFINING RELIGIOUS LIBERTY church or congregation would be forced to perform same-sex marriages. Despite the law already making this guarantee, astonishingly, 50 percent of those respondents said they would now support same-sex marriage. This shift comports with data assembled by marriage equality advocates in Minnesota, the closest of the four state contests in the fall of 2012. There, Minnesotans United found that—due to deliberate misinformation by marriage equality opponents—a large plurality of marriage opponents believed that, were same-sex marriage to be legal, churches would have to solemnize same-sex marriages. As we have just noted, this, of course, is not at all the case. Yet many people believed it. This data suggest that conservative “religious liberty” advocates will succeed if they can continue to blur the lines regarding what same-sex marriage legislation would actually do. By sowing confusion based on cases such as the Ocean Grove/Methodist pavilion case, they can successfully tap into this fear. On the other hand, the positive aspect of these findings is that if progressives state clearly and loudly that no church will ever be compelled to perform a same-sex marriage, the PRRI data suggests that many opponents will now become supporters. However, marriage is not the only arena where <<< PAGE 31 >>> WWW.POLITICALRESEARCH.ORG the conservative “religious liberty” campaign is contesting LGBTQ rights. Another major battleground is around adoption. In a well known move, the Catholic Charities of Massachusetts withdrew from the state’s adoption system rather than place children with same-sex couples. Interestingly, that position on adoption has not had the traction one might expect. The graph below from a March 2012, PRRI study119 is instructive. As the data shows, 63 percent of Americans do not believe that religiously affiliated agencies should be able to refuse to place children with same-sex couples, if those agencies receive federal funding. This may surprise some, but the data shows the weakness of conservative “religious liberty” arguments outside the already-faithful. This may be because the question included the question of federal funding—many may not know that Catholic Charities benefits from millions of dollars of federal funding. Of the groups sampled, White evangelicals said “yes” the most. This is consistent with our finding that while the latest conservative “religious liberty” campaign is led by a small coterie of Roman Catholic conservative intellectuals, its followers are largely evangelicals and not Roman Catholics. “Religious liberty” campaigns against LGBTQ rights are also found in educational contexts. Virginia stands ready to approve a law allowing campus groups to exclude gay members, for example,120 and religious liberty has been used in the current debate surrounding the Boy Scouts. Bullying may be the weak link in the movement’s inversion of the victim-oppressor dynamic. It may be more difficult for right-wing “religious liberty” activists to successfully defend bullies’ right to “religious freedom” in their taunting of gay teenagers, given the realities: LGBTQ teenagers are at a high risk for suicide and self-destructive behavior. Should religiously affiliated agencies that receive federal funding be able to refuse to place children with qualified gay and lesbian couples? Yes No 90 85 80 70 63 47 50 40 30 63 59 57 60 47 39 32 34 30 20 14 10 0 All Americans White Evangelicals Minority Christians White Mainline Protestants Catholics Unaffiliated Source: Public Religion Research Institute, PRRI/RNS Religion News Survey, March 2012 (N=1,007) REDEFINING RELIGIOUS LIBERTY <<< PAGE 32 >>> WWW.POLITICALRESEARCH.ORG REPRODUCTIVE RIGHTS: THE HHS PROVISION AS FLASHPOINT On October 20, 2012, a coalition of over 60 local and national organizations held a series of national rallies around the country against the Health and Human Services (HHS) contraception provision enacting the 2010 Affordable Care Act (“Obamacare”). As the Stand Up for Religious Freedom coalition describes it on their website: The new Mandate would requiring [sic] nearly all private health insurance plans to include coverage for all FDA-approved prescription contraceptive drugs and devices, surgical sterilizations and abortioninducing drugs—drugs that interfere with implantation in the womb and therefore destroy the life of a human being in the earliest stage of development.123 Though hardly ever reported in the media, this provision did not originate with “Obamacare.” In 2000, the Equal Employment Opportunity Commission held that failure to provide contraceptive coverage violates the 1978 Pregnancy Discrimination Act, an amendment to Title VII of the 1964 Civil Rights Act that outlaws, among other things, discrimination based on sex.124 Thus, contraception coverage has been the law for all employersponsored health plans for businesses with more than 15 employees for twelve years. In addition, over half of the states already have their own state laws that require contraceptive coverage. Some of these laws contain exemptions for certain religious employers that are almost identical to the religious employer exemption in the HHS Benefit; two of those have been challenged unsuccessfully in court. The highest courts in both New York and California upheld their state laws against challenges, finding that the laws do not violate free exercise of religion.125 Countless editorials have omitted this fact, suggesting that it was simply HHS’s idea to narrowly construe “religious employers.”126 Moreover, the Affordable Care Act itself required that contraceptive coverage be made available without a co-pay; HHS was enacting the law. They were following the law as set forth by the EEOC and several state courts. The only difference between the HHS provision and the previous law was that under the new requirement, employees would no longer have cost sharing with employers since they don’t pay the deductible associated with contraceptive care. What transpired, however, was anything but settled. In January 2012, HHS Secretary Katherine Sebelius announced the new policy. Though it exempted churches and religious organizations (tiers 1 and 2), Catholic churches and charities immediately objected.127 On February 11, 2012, HHS announced a compromise, in which insurance providers, rather than employers, would absorb the cost of the deductible.128 This would have seemed to remove the conscience-offending causality, but by now the Catholic Church (and in particular the USCCB) was empowered, and took on the entire HHS provision, including the part that was already part of settled law. PROFILE THE ACTON INSTITUTE FOR THE STUDY OF RELIGION AND LIBERTY 2010 revenue: $7.2m • www.acton.org The Acton Institute for the Study of Religion and Liberty has published Religion & Liberty magazine since 1991. This group of Catholic-influenced economic libertarians/social conservatives heavily promotes Eric Metaxas, a conservative theorist advancing a conservative “religious liberty” agenda. Like many conservative Catholic organizations, Acton frames debates in terms of a fight between values and “relativism.” It is now significantly involved in healthcare—first against “socialized medicine,” now on the grounds of religious freedom.133 As with the other organizations, Acton’s intellectual leadership seems less committed to conservative “religious liberty” specifically than to the ideological aims of the culture war generally. That said, they have framed these particular issues in conservative “religious liberty” terminology since the early 1990s, longer than most others. REDEFINING RELIGIOUS LIBERTY <<< PAGE 33 >>> WWW.POLITICALRESEARCH.ORG PROFILE ALLIANCE DEFENDING FREEDOM (FORMERLY ALLIANCE DEFENSE FUND) 2011 revenue: $35,145,644 Formerly known as the Alliance Defense Fund, this legal ministry was created in 1994, and advocates for religious freedom. Headed by Alan Sears (president, CEO, and general counsel), author of The Homosexual Agenda, ADF has assisted in the passage of Defense of Marriage Acts (DOMAs) in several states,169 and currently has a campaign in the works to defend Christian student groups at public universities. ADF is still active on Proposition 8, the California ballot measure invalidating same-sex marriage in that state, in the name of defending religious freedom and the democratic process. The other members of the leadership are either conservative policy people or big firm litigation partners. They are litigating the HHS provision, assisting in defending DOMA, etc. Claims a network of 2,200 lawyers. Major donors are cofounders D. James Kennedy (Coral Ridge Ministries) and James Dobson (Focus on the Family) and their organizations; as well as the Bill and Berniece Grewcock Foundation, Richard and Helen DeVos Foundation, and the Bradley Foundation. The current status of the HHS provision is they object on religious grounds. The women who uncertain. work for this second group would still get birth While the provision is in place, implementacontrol coverage, but it would come through a tion in some cases is stayed pending an appeal, separate individual plan, not from the religious filed by the Becket Fund, at the D.C. Circuit Court organization’s plan. This is a proposed rule and of Appeals. Becket lost the first round, at trial has not yet been finalized. court, when the trial court held that the benefit’s This is a huge concession, and should repre“safe-harbor” provisions protects religious institusent a victory for the “religious liberty” campaign. tions (the named plaintiffs Yet in a statement, the Becket are two Christian colleges, Fund said the new rule “does Wheaton and Belmont Abbey) Though hardly ever reported nothing to protect the relifrom suffering any imminent gious liberty of millions of in the media, the HHS conharm and that the lawsuits traception provision did not Americans”—and promised were thus premature. (Note, originate with “Obamacare.” “to study what effect, if any, this is essentially a procedural the Administration’s proposed question as to whether the rule has on the many lawsuits” case is ripe or not—not a ruling on the actual merinvolving Becket’s clients.130 The campaign has its.) However, the controversy rages on. Thirteen had such success that it is now focused on winstates filed amicus briefs in the HHS provision ning the entire game, and obtaining religious case, as well as The Catholic University of Amerexemptions for any corporation that wishes to ica, The Catholic Archbishop of Washington, obtain them. Despite these remarkable gains, the D.C., and Catholic Charities of the Archdiocese of prophetic rhetoric has reached fever pitch. A June Washington, D.C. According to the Becket Fund, 2012 video by the Acton Institute warns that the there are now 49 cases nationwide challenging HHS provision will literally mean “The End of the HHS provision.129 America.”131 Acton bloggers have called it “an unconscionable threat to conscience.”132 On February 1, 2013, the Obama administration proposed allowing faith-based hospitals and universities—not merely churches and religious EFFECTIVENESS OF THE HHS CAMPAIGN organizations—to issue plans that do not provide In 2012, Planned Parenthood commissioned a birth control (i.e., tier 3, in addition to tiers 1 and poll by Public Policy Polling that showed that 56 2). They would not have to contract, arrange, pay percent of Americans supported “the decision to or refer for any contraceptive coverage to which require health plans to cover prescription birth REDEFINING RELIGIOUS LIBERTY <<< PAGE 34 >>> WWW.POLITICALRESEARCH.ORG PROFILE CHRISTIAN LEGAL SOCIETY, CENTER FOR LAW & RELIGIOUS FREEDOM www.clsnet.org • Founded 1980 • 2011 Revenue: $1,364,102 CLS is a Christian legal advocacy group. Since 1980, CLS has operated a Center for Law and Religious Liberty, which has sought to argue high-profile cases and advise congress on legislation that can impact religious freedom.134 The organization is largely focused on educational cases. Its website provides resources for issues regarding public schools and universities, faith-based organizations, health care rights, and religion clause theory. Kim Colby has been senior counsel for the Center for Law and Religious Freedom since 1981, when she graduated from Harvard Law School.135 In 2010, CLS lost an religious liberty case (Christian Legal Society v. Martinez136) before the Supreme Court137 in which they defended a student group denied recognition after stripping voting rights from group members who supported LGBTQ rights. The 5-4 decision in Martinez, written by Justice Ginsberg, has been the cause of some controversy.138 CLS has brought similar cases against universities. In Beta Upsilon Chi Upsilon Chapter v. Machen,139 CLS brought a case against the University of Florida (UF) on behalf of Beta Upsilon Chi (BYX), a Christian fraternity. UF refused to grant recognition to the fraternity due to its failure to comply with UF’s nondiscrimination policy. BYX made the case that such refusal violated its first and fourteenth amendment rights. The case was declared moot after UF amended its nondiscrimination policy to exempt student organizations “whose primary purpose is religious,” allowing BYX to limit membership based on religious beliefs. BYX further pursued its case, claiming that UF amended its policy simply to avoid liability. The case, however, was dismissed. Lately, CLS has been pursuing the case (not yet filed as a legal matter) against Vanderbilt University for its new policy of nonrecognition of student organizations that require leaders to accept specific religious beliefs.140 This effort has been led by Colby.141 The issue received a fair amount of attention from the press142 and from CLS.143 In February, an open letter was written to board members at Vanderbilt to address what the attorneys and authors of the letter called an “impasse,” and to ask that a sentence be added to the university’s nondiscrimination policy similar to the one added to UF.144 However, in May, Tennessee Governor Bill Haslam vetoed a bill145 (House Bill 2576) that was passed by large majorities in both houses of the state legislature (19-12 in the Senate and 61-22 in the House) that would have overridden VU’s new “all-comers” policy regarding student groups. Haslam said that though he disagreed with VU’s policy, the government “should not dictate the policies of a private institution.” Much of the work of CLS prior the past couple of years has been in the same vein as the Vanderbilt University controversy and the University of Florida case.146 They often represent Christian groups that are seeking a constitutional basis to discriminate against non-Christians, typically arguing that it is an exercise of first amendment rights. In 2006, CLS released a brochure on the topic of teachers and religion in public schools.147 In addition to these cases, CLS has also taken issue with the HHS provision, filing an amicus brief in support of Wheaton College and Belmont Abbey College.148 They have also proposed a bill,149 which would amend the Affordable Care Act to overturn the HHS provision.150 CLS does not appear to collaborate significantly with many other organizations. One notable member of the CLS board is Carl H. Esbeck, Professor of Law at the University of Missouri who has published extensively on the topic of religious liberty and church-state relations.151 Recent and relevant publications include a chapter152 on the first amendment in the edited volume No Establishment of Religion,153 and an article entitled “Religious Freedom, Church-State Separation, and the Ministerial Exception” in the Northwestern Law Review Colloquy.154 In 2011, CLS spent a total of $1,112,958 on program services.155 Of that, $293, 958 went to attorney ministries; $103,784 went to legal aid ministries; $297,143 went to conferences; $120,677 went to law student ministries; and $297,396 went to the Center for Law and Religious Freedom. CLS hosts a number of ministries to help current and future attorneys “integrate their faith with the practice of law.” REDEFINING RELIGIOUS LIBERTY <<< PAGE 35 >>> WWW.POLITICALRESEARCH.ORG control with no additional out-of-pocket fees,”174 and that 57 percent of Americans (and 53 percent of Roman Catholics) think that women employed by Catholic hospitals and universities should have the same rights to contraceptive coverage women employed elsewhere. Notably, however, the PPP study phrased the question both in terms of the institution and the individual: “Which view do you agree with—Catholic hospitals and universities should be exempted from covering prescription birth control, or that women who are employed by Catholic hospitals and universities should have the same rights to contraceptive coverage as other women?” This likely distorted results. The phrasing of the question (“should have the same rights” triggering fairness concerns, no strong justification to be “exempted”) is extremely weighted to the pro-HHS side. At roughly the same time as the PPP study and the HHS provision controversy, the Pew Research Center released a different study with different re- sults.175 Among those aware of the issue, 48 percent supported a religious exemption and 44 percent opposed an exception for religious groups. Among Roman Catholics, 55 percent were in favor of an exception, with 39 percent opposed. Not surprisingly, most Republicans supported an exception while most Democrats oppose one, and most men support an exception while most women oppose it. Among Roman Catholics who attend church at least once a week, 63 percent support an exception (25 percent opposed), while those who attend less often split evenly (48 percent favor, 49 percent oppose). However, the same poll also showed that only 15 percent of Catholics believed contraception to be morally wrong, while 41 percent say it is morally acceptable and 36 percent say it is not a moral issue.176 The conservative campaigners are seeking to sway public opinion with what they see as sympathetic victims of the contraception provision. To illustrate this, let us focus on a single recent example as a case study. In a USA Today op-ed PROFILE THE RUTHERFORD INSTITUTE www.rutherford.org • Revenue 2011: $1,458,181 Founded in 1982 by John Whitehead (funder of Paula Jones’ lawsuit against President Clinton and a disciple of R.J. Rushdoony and Francis Schaeffer), The Rutherford Institute is one of the key links between the conservative “religious liberty” movement and Christian Reconstructionism.156 The Institute has taken up several high-profile cases, often litigating what most lawyers call ‘establishment clause’ cases (e.g. students leading prayers on behalf of schools) as if they were free exercise cases (i.e. students exercising their own free exercise rights). While the language of the organization supports religious freedom generally, most (though not all) of its work is on Christianity. The Rutherford Institute, like Reconstructionism itself, is ideological, not pragmatic. The subjects of opinion pieces written for the website are, for example, the dangers of aligning the Christian right too closely with the political establishment;157 the likening of right-wing religious radicalism to the work of Christ;158 and an appeal to allow the celebration of Christmas in public schools.159 One “religious liberty” case taken up by the organization regards an Arizona pastor, Michael Salman, who was sentenced to 60 days in jail in 2009 after hosting Bible sessions in his home and violating zoning ordinance and construction code.160 Non-Christian cases include defending the right to wear Muslim head scarves161 in schools, challenging zoning laws that would affect a local rabbi in New Jersey,162 and defending an interfaith retreat in Virginia suffering from local opposition.163 There is some controversy surrounding RI’s president John Whitehead,164 who has invoked distrust in the President, Congress, and courts,165 and has warned of schools becoming “authoritarian police states.”166 Additionally, on RI’s weekly “vodcast,” Whitehead discusses various sensationalist issues that he substantiates with little empirical or real evidence. Two particular examples include one on the topic of the politics of fear in America,167 in which he calls Obama a “hitman,” and another discussing Obama’s “track record” on civil liberties.168 REDEFINING RELIGIOUS LIBERTY <<< PAGE 36 >>> WWW.POLITICALRESEARCH.ORG case, the provision of health care is part of the published September 12, 2012,177 David Green, responsibility of being a large employer. Hobby CEO of the crafts company Hobby Lobby, made a Lobby does, as Green’s op-ed states, live up to its strong case for conservative “religious liberty” in Christian values in many the context of contracepways. However, in addition coverage. He extion to its religious duty plained that his company The conservative campaigners seek it also has its civic duty to Hobby Lobby, though to sway public opinion with what provide health coverage now quite large, remains they see as sympathetic victims of to its employees. Here, a Christian and familythe HHS contraceptive provision. although the payment is run company, and that to to an insurance company fund “abortion-causing rather than to the governdrugs” (e.g. the morningment, the responsibility being discharged is a civic after pill) is against his beliefs. duty. Responding to this plea is challenging because The legal campaign against the HHS providoing so relies on nuance, rather than a broad sion is finding mixed results. In at least one recent brush. Thus far, progressives have tried to focus case, a Missouri federal district court found that on the individual seeking coverage. This response, the requirement did not substantially burden the however, does not solve the problem of an appealexercise of religion, finding paying for insurance ing plaintiff sincerely pleading his or her case. benefits to be no different from paying salaries to Thus it may be necessary to draw other distincemployees, who of course could use the money in tions. First, Hobby Lobby is not paying directly any number of ways.178 Obviously, that case is befor contraception. The company does not choose, the employee does, and the company has no moral ing appealed, and there are now over 100 plainagency in that individual’s choice. Similarly, Hobtiffs challenging the HHS provision.179 With the by Lobby doesn’t control how employees spend reelection of President Obama, this recourse to the their salary. Second, as in the New Mexico florist courts is likely to intensify. PROFILE CHALCEDON FOUNDATION www.chalcedon.edu • 2011 Revenue: $961,264 Christian Reconstructionist in orientation, the Chalcedon Foundation was founded in 1965 by Rousas John Rushdoony.170 Chalcedon believes in Dominion Theology, or the belief that God’s law, as codified in the Bible, should exclusively run society, to the exclusion of secular law.171 R.J. Rushdoony, widely credited as the father of Christian Reconstructionism, died in 2001, and was succeeded by his son Mark as president of the organization. A notable member is Gary North, an economist who is often cited as a co-founder of Christian Reconstructionism. Whereas other organizations claim to seek to prevent government intrusion on the expression and practice of one’s religious ideas and convictions, the Chalcedon Foundation unabashedly espouses the replacement of civil law with biblical law. In various articles published by the foundation, it argues that there ought not to be a separation between church and state,172 and that “the only way to ensure the liberty that a well-educated citizenry can maintain is to return to the home/ Christian school system that gave us the 99.7 percent national literacy rate that America enjoyed in 1803.”173 The foundation goes on to say that public education cannot be fixed because the problem itself is state involvement. Thus, although some have suggested a close linkage between Chalcedon and the conservative “religious liberty” movement, research suggests that Chalcedon is better seen as pursuing a more wholesale transformation of civil law. REDEFINING RELIGIOUS LIBERTY <<< PAGE 37 >>> WWW.POLITICALRESEARCH.ORG RECOMMENDATIONS victory for the conservative “religious liberty” movement and a catastrophe for protecting civil rights. That Catholic-affiliated Georgetown has SOCIAL JUSTICE ADVOCATES FACE a unique challenge such a center is perhaps unsurprising—but Stanin the combinations of respectable and specious arford is quite another matter. In sum, this battle is guments, liberal and illiberal claims, well-regarded different from cases where only a few marginal scholars and ideologues, that one finds in conservascholars support the other side’s point of view. tive “religious liberty” discourse. In most political And let us recall that there is a basic moderate battles over reproductive health, for example, it is popular appeal to “religious liberty,” unlike the not difficult to identify one’s adversaries, and identilimited appeal of antichoice or biblical antigay fy the religious basis for their claims. Here, however, arguments, with subtle distinctions being crucial. the case is quite different. First, conservatives and Finally, even though conservative Roman liberals have found some agreement in religious Catholics play an important role in the battle, liberty cases. For example, prior to joining the U.S. it is crucial to not paint entire religions with a Supreme Court, Judge Samuel Alito authored a single brush. True, this is in large part a sectarian 1999 opinion holding that the battle, led by the world’s most city of Newark violated the powerful religious organizafree exercise rights of Muslim In most political battles, it tion. Moreover, the Roman policemen by not exempting is not difficult to identify Catholic predominance in the them from the department’s one’s adversaries, and idenconservative “religious liberty” “no beard” policy.1 The Becket movement is ironic; obviously tify the religious basis for Fund, which has led the fight the Catholic Church does not their claims. Here, however, on the HHS provision, has tolerate “religious liberty” the case is quite different. also taken unpopular cases, within its own ranks.3 Even such as supporting a mosque within the Church hierarchy— in Murfreesboro, Tennessee.2 And there are numerlet alone as between the hierarchy and lay Cathoous cases in which members of minority religions lics—there are multiple camps, often in sharp are protected by the free exercise clause of the First disagreement with one another; Opus Dei adherAmendment, creating some libertarian common ents and neoconservatives curry no favor with ground between some conservatives and the Left. many American nuns, Jesuits, or Passionists, for This makes it even more important for social justice example, on economic4 or social issues.5 And of forces to more vigorously lay out their religious course organizations such as Catholics for Choice, freedom arguments so that the Right does not take Dignity, and others have articulated Catholic posiover the territory. tions diametrically opposed to that of the Church Second, there are respected academics who hierarchy.6 The Roman Catholics represented in are allying themselves with the conservative “relithe movement are among the more conservative gious liberty” cause, either knowingly or unknowvoices within the Church, and much of the intelingly. Most importantly, Prof. Douglas Laycock lectual discussion is about natural law, parochial has for decades been a champion of religious schools, and respecting the Catholic magisterium. liberty, and as we noted, Laycock’s letters to state “Religious liberty” is narrowly defined even within lawmakers in support of religious exemptions are Roman Catholicism. both signed by many other academics, and writTo contest the Right’s “religious liberty” arguten in support same-sex marriage in some form. ment, social justice forces must publicize the Yet Laycock’s allies in these letters, his funders existence of a coordinated campaign to redefine (Becket Fund most importantly) and the academreligious liberty, support a faith-based response to ics he chooses for inclusion in anthologies are all it, counter common misinformation, contest the making damaging, specious arguments that have rhetorical frame of “religious liberty,” foster robust political intention and import. Similarly, the anacademic responses, and take a pro-active rather nouncement in January 2013 that Stanford Law than reactive political role. School had opened a Becket-funded “Religious Liberty Clinic” should be seen as an enormous REDEFINING RELIGIOUS LIBERTY <<< PAGE 38 >>> WWW.POLITICALRESEARCH.ORG SPECIFICALLY, THIS REPORT RECOMMENDS THAT SOCIAL JUSTICE ADVOCATES: 1. Define and Publicize the Coordinated Campaign to Redefine Religious Liberty. While grassroots evangelicals are active in the conservative “religious liberty” campaign against LGBTQ and reproductive rights, it is a coordinated fight led by well-established rightwing institutions like the Becket Fund and Alliance Defending Freedom. The Roman Catholic Church hierarchy and conservative Catholics are important thought leaders for the campaign. The evangelical/Roman Catholic alliance builds on relationships forged in the antichoice movement. 2. Organize A Unified Response There is need for further mapping, coordinating, and building out alliances among advocates countering the Right’s campaign. We need to strengthen the alliance between prochoice and LGBTQ forces, and ally with emerging faithbased responses. Alliances must also be made with liberal business owners and libertarians; this can increase effectiveness of existing efforts. 3. Counter Misinformation Many conservative “religious liberty” claims rely on falsehoods and scare tactics. Simply put, clergy will never be forced to perform a same-sex marriage. Social justice advocates must learn and be able to counter the Right’s go-to examples of spurious “religious liberty” violations. Understanding and clarifying the Right’s use of the martyr narrative and inversion of the victimoppressor dynamic is a good start to countering right-wing rhetoric. 4. Reclaim the Religious Liberty Frame The term “religious liberty,” like the phrase “family values,” has become a code for the larger culture wars. While religious belief and expression are valid and protected constitutional claims, religious liberty is not the freedom to discriminate and harm others. It does not allow a boss to tell an employee what health care they can obtain, taking away the employee’s ability to make moral and religious choices. Nor does sexual and gender equality have to be pitted against REDEFINING RELIGIOUS LIBERTY religious liberty. The clash is not just between secularism and religion, or equality and religion, but of competing religious values. Challenging the conservative frame also means distinguishing between commercial and religious acts, and valuing competing civil rights; an effective response requires sustained intellectual and legal challenges to the Right’s argument. 5. Develop Academic Responses Social justice advocates must take seriously the influence of right-wing academics on policy and public debate. Religious freedom is a complex topic, which can too often become co-opted by the conservative “religious liberty” campaign. That this happens, often unknowingly, to fairminded academics and legal scholars is something that can be reversed by raising awareness of the issue, including with academic conferences on the topic. 6. Leverage Religious Communities We must build on existing interfaith work to counter the conservative “religious liberty” narrative, informing and organizing more in faith communities. The social justice community must create unity by issuing a common “Call to Conscience” of religious people seeking to maintain their religious liberty against the conservative proposals and policies. LGBTQ faith communities, Jewish and progressive faith organizations, in particular, must be supported in countering the Right’s claims about what religious liberty means. 7. Ongoing Research and Monitoring Social justice advocates and defenders of true religious freedom must become better informed about the right-wing campaign to redefine religious liberty—including its principal players, strategies, and vulnerabilities. Ongoing investigative research into U.S. conservatives’ use of religious liberty legal and rhetorical strategies, both domestically and abroad, is needed to keep advocates and journalists informed about strategically significant developments. Moreover, we must track the influence of conservative academics on policy and public debate. <<< PAGE 39 >>> WWW.POLITICALRESEARCH.ORG APPENDIX: ORGANIZATIONS AND FUNDERS AMICUS BRIEFS SUPPORTING PETITIONER IN HOSANNA-TABOR CASE INSTITUTIONS LEADING THE CONSERVATIVE “RELIGIOUS LIBERTY” CAMPAIGN: • American Association of Christian Schools • American Center for Law and Justice and the Intervarsity Christian Fellowship/ USA • American Jewish Committee and the Union for Reform Judiasm • American Bible Society et al. • Council for Christian Colleges and Universities • Evangelical Covenent Church et al • International Center for Law and Religious Studies at Brigham Young University • International Mission Board of The Southern Baptist Convention et al. • Justice and Freedom Fund • Lutheran Church-Missouri Synod • Michigan and 7 Other States • Muslim-American Public Affairs Council et al. • Professor Professor Eugene Volokh et al [sic] • Religious Organizations and Institutions • The Rutherford Institute • Jewish Educational Center et al • Religious Tribunal Experts • Trinity Baptist Church in Support of Jacksonville • The United States Conference of Catholic Bishops • Wallbuilders, Inc. • Acton Institute for the Study of Religion and Liberty (see page 33) • Alliance Defending Freedom (formerly Alliance Defense Fund), (see page 34) • American Family Association • The Becket Fund for Religious Liberty (see page 16) • Catholic Charities USA • Catholic League for Religious and Civil Rights • Chalcedon Foundation (see page 37) • Christian Legal Society, Center for Law & Religious Freedom (see page 35) • Ethics and Public Policy Center (see page 24) • Family Research Council (see page 30) • Focus on the Family • Heritage Foundation • Liberty Counsel/Liberty University • National Organization for Marriage • The Rutherford Institute (see page 36) • United States Conference of Bishops (see page 22) AMICUS BRIEFS SUPPORTING GOVERNMENT • • • • • • • • • • NAACP Legal Defense Fund et al People for the American Way Bishopaccountability.Org Anti-Defamation League Americans United for Separation of Church and State et al American Humanist Association and American Atheists, Inc. National Employment Lawyers Association Antitrust Professors and Scholars Law and Religion Professors Neil H. Cogan Urging Afirmance OTHER ORGANIZATIONAL PLAYERS • • • • • • • • • • • • • • • • • • • REDEFINING RELIGIOUS LIBERTY Agudath Israel American Center for Law & Justice (ACLJ) American Civil Rights Union Americans for Truth about Homosexuality Breakpoint / Chuck Colson Center for Christian Worldview Cato Institute Christian Apologetics and Research Ministry Eagle Forum International Christian Concern National Hispanic Christian Leadership Conference Orthodox Union Paciic Justice Institute Religious Freedom Coalition Ruth Institute, see National Organization for Marriage The Lynne and Harry Bradley Foundation Thomas More Law Center Traditional Values Coalition Voice of the Martyrs Witherspoon Institute <<< PAGE 40 >>> WWW.POLITICALRESEARCH.ORG BIBLIOGRAPHY RIGHT-WING BOOKS ON RELIGIOUS LIBERTY Hasson, Kevin Seamus. The Right to be Wrong: Ending the Culture War over Religion in America. New York: Image Press, 2012. Originally published 2005. Limbaugh, David. Persecution: How Liberals are Waging War Against Christianity. New York: Harper Perennial, 2004. Schlafly, Phyllis, and George Neumayr. No Higher Power: Obama’s War on Religious Freedom. Washington, D.C.: Regnery Publishing, 2012. Sears, Alan, and Craig Osten. The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today. Nashville: Broadman & Holman Publishers, 2003. Sekulow, Jay. Knowing Your Rights: Taking Back our Religious Liberties. Virginia Beach: Christian Broadcasting Network, 1993. Wildmon, Donald. Speechless: Silencing the Christians. Minneapolis: Richard Vigilante Books, 2009. SCHOLARLY CONSERVATIVE SOURCES Berg, Thomas C. “What Same-Sex-Marriage and Religious-Liberty Claims Have in Common,” Northwestern Journal of Law and Social Policy, 5, no. 2 (2010): 206-235. Bradley, Gerald, ed. Challenges to Religious Liberty in the Twenty-First Century. New York: Cambridge University Press, 2012. Brownstein, Alan. “Gays, Jews, and Other Strangers in a Strange Land: The Case for Reciprocal Accommodation of Religious Liberty and the Right of Same-Sex Couples to Marry.” University of San Francisco Law Review, 45, no. 2 (Fall 2010): 389-436. Carter, Stephen. The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion. New York: Anchor Books, 1994. Laycock, Douglas, Anthony Picarello and Robin Fretwell Wilson, eds. Same-Sex Marriage and Religious Liberty: Emerging Conlicts. Lanham: Rowman and Littlefield Publishers, 2008. Severino, Roger. “Or for Poorer? How Same-Sex Marriage Threatens Religious Liberty,” 30 Harvard Journal of Law and Public Policy, 30, no. 3 (Summer 2007): 939-982. Shah, Timothy Samuel and Matthew J. Franck, Religious Freedom–Why Now? Defending an Embattled Human Right. Princeton, NJ: Witherspoon Institute, 2012. Stern, Marc D. “Same-Sex Marriages and the Churches.” In Same-Sex Marriage and Religious Liberty: Emerging Conlicts, edited by Douglas Laycock, Anthony Picarello and Robin Fretwell Wilson, Lanham: Rowman and Littlefield Publishers, 2008. Stern, Marc D. “Liberty v. Equality; Equality v. Liberty,” Northwestern Journal of Law and Social Policy, 5, no. 2 (2010): 307-317. Wilson, Robin Fretwell. “Insubstantial Burdens: The Case for Government Employee Exemptions.” Northwestern Journal of Law and Social Policy, 5, no. 2 (2010): 318. OTHER CONSERVATIVE SOURCES Gallagher, Maggie. “Banned in Boston: The Coming Conflict Between Same-Sex Marriage and Religious Liberty,” The Weekly Standard, 11, no. 33 (May 15, 2006). Gallagher, Maggie. “Why Accommodate? Reflections on the Gay Marriage Culture Wars,” Northwestern Journal of Law and Social Policy, 5, no. 2 (2010): 260. Kmiec, Douglas W. “If Gays Marry, Churches Could Suffer,” Chicago Tribune, May 26, 2006. Stand for Marriage Maine, “Stand for Marriage Maine Issues Statement About Opposition to Question 1,” Press Release (October 1, 2009). Stern, Marc D. “Will Gay Rights Trample Religious Freedom?,” Los Angeles Times, June 17, 2008. Will, George. “When Marriage Became a “Hate Crime,” Jewish World Review, June 25, 2007, http://jewishworldreview.com/cols/will062507.php3. REDEFINING RELIGIOUS LIBERTY <<< PAGE 41 >>> WWW.POLITICALRESEARCH.ORG BIBLIOGRAPHY CONTINUED PROGRESSIVE AND ANALYTICAL SCHOLARLY SOURCES American Civil Liberties Union and Catholics for Choice, “American Attitudes on Religious Exemptions: In Theory and Practice,” October 25, 2012. American Congress of Obstetricians and Gynecologists, “The Limits of Conscientious Refusal in Reproductive Medicine,” November 2007. Balmer, Randall. Thy Kingdom Come: An Evangelical’s Lament: How The Religious Right Distorts the Faith and Threatens America. Philadelphia: Basic Books, 2006. Balmer, Randall. The Making of Evangelicalism: From Revivalism to Politics. Waco: Baylor Univ. Press, 2010. Barringer Gordon, Sarah. The Spirit of the Law: Religious Voices and the Constitution in Modern America. Cambridge: Belknap Press, 2010. Blumental, Max. Republican Gomorrah: Inside the Movement that Shattered the Party. New York: Nation Books, 2010. Bold, Frederic J., Jr. “Vows to Collide: The Burgeoning Conflict Between Religious Institutions and Same-Sex Marriage Antidiscrimination Laws.” University of Pennsylvania Law Review, 158, no. 1 (December 2009): 179-230. Catholics for Choice, “In Good Conscience,” 2010. Clarkson, Frederick. Eternal Hostility: The Struggle Between Theocracy and Democracy. Monroe: Common Courage Press, 2007. Clarkson, Frederick. “The Culture Wars are Still Not Over,” The Public Eye, Winter 2008. Feldblum, Chai R. “Moral Conflict and Conflicting Liberties.” In Same-Sex Marriage and Religious Liberty: Emerging Conlicts, edited by Douglas Laycock, Anthony Picarello and Robin Fretwell Wilson. Lanham: Rowman and Littlefield Publishers, 2008. Flynn, Taylor. “Clarion Call or False Alarm: Why Proposed Exemptions to Equal Marriage Statutes Return Us to a Religious Understanding of the Public Marketplace,” Northwestern Journal of Law and Social Policy, 5, no. 2 (2010): 236. Freedman, Lori and Stulberg, Debra. “Conflicts in Care for Obstetric Complications in Catholic Hospitals,” American Journal of Bioethics Primary Research, December 18, 2012. Herman, Didi. The Antigay Agenda: Orthodox Vision and the Christian Right. Chicago: Chicago University Press, 1998. Lupu, Ira C. and Robert W. Tuttle, “Same-Sex Family Equality and Religious Freedom,” Northwestern Journal of Law and Social Policy, 5, no. 2 (2010): 274. Minow, Martha. “Should Religious Groups Be Exempt from Civil Rights Laws?,” Boston College Law Review, 48, no. 4 (2007): 781-849. NeJaime, Douglas. “New Entrants Bring New Questions.” Law & Sexuality, 19 (May 5, 2010): 181-187. O’Brien, Jon. “Statement to the Subcommittee on the Constitution, Civil Rights and Civil Liberties Committee on the Judiciary,” October 26, 2011. Quinnipiac University, “American Catholics Support Same-Sex Marriage, Quinnipiac University National Poll Finds; Catholics Want New Direction From Next Pope,” March 8, 2013. Vivian, Jesse C. BS Pharm, JD, “The Crossroads Between Law and Ethics: Conscience Clauses,” US Pharmacist, 2007; 32(8); 49-53. Yoshino, Kenji. Covering: The Hidden Assault on Our Civil Rights. New York: Random House, 2006. REDEFINING RELIGIOUS LIBERTY <<< PAGE 42 >>> WWW.POLITICALRESEARCH.ORG science;” The Manhattan Project blog, http://www.patheos. com/blogs/manhattanproject/. ENDNOTES 1. “Confidential Document Details NOM’s National Strategy,” The Advocate, Mar. 27, 2012, http://www. advocate.com/news/daily-news/2012/03/27/confidentialdocument-details-noms-national-strategies. 2. Robert P. George, Timothy George, and Chuck Colson, “Manhattan Declaration: A Call of Christian Conscience,” Manhattan Declaration, Nov. 20, 2009, http:// www.manhattandeclaration.org/man_dec_resources/Manhattan_Declaration_full_text.pdf . 3. Peter Montgomery, “Fortnight for Righteous Rhetoric: Catholic Bishops and Religious Right Allies Wage War on Obama Administration,” Marriage: Unique for a Reason, Jun. 26, 2012, http://www.marriageuniqueforareason. org/2012/06/26/fortnight-for-freedom-day-6-how-couldchanging-the-legal-definition-of-marriage-have-any-effecton-religious-liberty/. 4. Paul D. Ryan, “Vice Presidential Debate,” Danville, Kentucky, Oct. 11, 2012, http://www.debates.org/index. php?page=october-11-2012-the-biden-romney-vice-presidential-debate. 5. Bob Jones University’s earlier policies banning the admission of African Americans had already been reversed by the university. 6. Randall Balmer, Thy Kingdom Come: How the Religious Right Distorts the Faith and Threatens America: An Evangelical’s Lament (New York: Basic Books 2006). 7. Contrary to expectations, ALEC does not have any explicit mention of any religious liberty initiatives on its website. However, ALEC’s involvement in education, such as its Education Savings Account model legislation (available here: http://www.alec.org/model-legislation/ education-savings-account-act/) and its legislative work on Indiana’s education reform package (available here: http:// www.alec.org/model-legislation/indiana-education-reformpackage/), do involve religious liberty peripherally. 8. “The Coalition to Stop the HHS Mandate,” Stand Up for Religious Freedom, http://standupforreligiousfreedom. com/coalition/. 9. Eric Scheidler, “With 140 Cities Tallied, October Rally Draws 28,077,” Stand Up For Religious Freedom, October 31, 2012, http://standupforreligiousfreedom.com/2012/oct20headcount/. 10. “The Coalition to Stop the HHS Mandate,” Stand Up for Religious Freedom. 11. See Frederick Clarkson, Eternal Hostility: The Struggle Between Theocracy and Democracy (Monroe: Common Courage Press, 1997); Balmer, The Kingdom Come; Max Blumenthal: Republican Gomorrah: Inside the Movement that Shattered the Party (New York: Nation Books, 2010). 12. Robert P. George, Timothy George, and Chuck Colson, “Manhattan Declaration: A Call of Christian Conscience.” 13. Robert P. George, Timothy George, and Chuck Colson, “Manhattan Declaration: A Call of Christian Con- REDEFINING RELIGIOUS LIBERTY 14. “Manhattan Declaration comes at a time of ‘important decisions,’ Robert George explains,” Catholic News Agency, Dec. 12, 2009, http://www.catholicnewsagency. com/news/manhattan_declaration_comes_at_a_time_of_ important_decisions_robert_george_explains/. 15. Robert P. George, Timothy George, and Chuck Colson, “Manhattan Declaration: A Call of Christian Conscience. 16. Laurie Goodstein, “Christian Leaders Unite on Political Issues,” The New York Times, Nov. 20, 2009, http://www. nytimes.com/2009/11/20/us/politics/20alliance.html?_r=0. 17. “Christian leaders’ stance on civil disobedience is dangerous,” The Washington Post, Nov. 28, 2009, http:// articles.latimes.com/2009/nov/28/opinion/la-ed-disobedience28-2009nov28. 18. “The Roots of Social Justice,” Glenn Beck, Fox News Network, aired May 18, 2010, transcript, http://www. foxnews.com/story/0,2933,593177,00.html. 19. Tobin Grant, “What Does the Manhattan Declaration Really Mean?” Christianity Today, Nov. 24, 2009, http://www.christianitytoday.com/ct/2009/novemberwebonly/147-21.0.html. 20. “Manhattan Declaration Comes at a Time of ‘Important Decisions,’ Robert George Explains,” Catholic News Agency. 21. Greg Garrison, “Samford University Beeson Divinity School Dean strikes chord with call for moral stance,” The Birmingham News blog, Dec. 14, 2009, http://blog.al.com/ birmingham-news-stories/2009/12/samford_university_ beeson_divi.html. 22. Elizabeth Tenety, “Under God,” The Washington Post, Dec. 11, 2010, http://www.washingtonpost.com/wp-dyn/ content/article/2010/12/10/AR2010121005647.html. 23. D. Beeksma, “Within weeks, atheist community membership tops the Manhattan Declaration backers,” God Discussion blog, Feb. 23, 2012, http://www.goddiscussion. com/92492/within-weeks-atheist-community-membershiptops-the-manhattan-declaration-backers/. 24. See Marc D. Stern, “Liberty v. Equality; Equality v. Liberty,” 5 Northwestern Journal of Law and Social Policy 307 (2010); Marc D. Stern, “Will Gay Rights Trample Religious Freedom?,” Los Angeles Times, Jun. 17, 2008, http://articles. latimes.com/2008/jun/17/opinion/oe-stern17. 25. As described below, Agudath Israel is ultra-Orthodox, the other groups modern Orthodox. Young Israel is a new entrant in the culture war, having recently signed up as a plaintiff in a Becket Fund case seeking a religious exemption for pharmacists wishing not to dispense emergency contraception. See Carrie Severino, “Pharmacist Conscience Rights Under Attack,” National Review, Dec. 3, 2012 http://www.nationalreview.com/bench-memos/334686/pharmacist-conscience-rights-under-attackcarrie-severino#. 26. See, e.g., Marc Stern “Liberty v. Equality; Equality v. Liberty,” p. 307 ; Marc Stern, “Will Gay Rights Trample Religious Freedom?” <<< PAGE 43 >>> WWW.POLITICALRESEARCH.ORG ENDNOTES CONTINUED From Revivalism to Politics (Waco: Baylor Univ. Press, 2010) 61-69. 27. See Robin Fretwell Wilson, “Matters of Conscience: Lessons for Same-Sex Marriage from the Healthcare Context,” Douglas Laycock, Anthony Picarello, Robin Fretwell Wilson, eds., Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Lanham: Rowman and Littlefield Publishers, 2008), 96. 44. 28. William P. Mumma, Mary Ann Glendon, and Robert P. George, “Becket Fund to Thomas More Law Center: Religious Liberty is Everyone’s Right-Not Just Christians.” The Becket Fund for Religious Liberty, May 25, 2012, http:// www.becketfund.org/becket-fund-to-thomas-more-lawcenter-religious-liberty-is-everyone%E2%80%99s-right%E2%80%93-not-just-christians/. 29. Mary Ann Glendon, “Holy See’s Final Statement at Women’s Conference in Beijing,” Sept. 15, 1995, http://www. its.caltech.edu/~nmcenter/women-cp/beijing3.html. 30. “Knights of Columbus Spending Millions to Stop Marriage Equality,” Equally Blessed, Oct. 18, 2012, http:// equally-blessed.org/release/knights-columbus-report. Minow, “Should Religious Groups Be Exempt,” 797. 45. Ibid., 797. 46. Derrick Jackson, “At Bob Jones U., a Disturbing Lesson About the Real George W.” Boston Globe, Feb. 9, 2000, A23. 47. See Jonathan Turley, “An Unholy Union: Same Sex Marriage and the Use of Governmental Programs to Penalize Religious Groups for Unpopular Practices,” in Douglas Laycock, Anthony Picarello, Robin Fretwell Wilson, eds., Same-Sex Marriage and Religious Liberty: Emerging Conlicts (Lanham: Rowman and Littlefield, 2008), 60, 64. Turley’s article is a powerful example of the blind spots in conservative “religious liberty” discourse. Turley is a law professor at George Washington University who has also worked on projects for the Becket Fund. 48. Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S.872 (1990). 49. City of Boerne v. Flores, 521 U. S. 507 (1997). 31. See Didi Herman, The Antigay Agenda (Chicago: University of Chicago Press, 1997), 184-86. 50. Ibid., 507. 32. Barringer Gordon’s book is extremely helpful for our purposes because it shows the disconnect between actual constitutional theory and the perception of constitutional rights in different historical periods. It does not cover the contemporary discourse of RL but its lessons are applicable here. Sarah Barringer Gordon, The Spirit of the Law: Religious Voices and the Constitution in Modern America (Cambridge: Belknap Press, 2010). 52. Sidley Austin Brown & Wood LLP, “Questions and Answers about State Religious Freedom Restoration Acts,” Sidley Austin Brown & Wood, Religious Institutions Practice Group, 4th Edition, http://www.sidley.com/db30/cgibin/pubs/State%20RFRA%20book%20v4%204.12.05.pdf. 33. Ibid., 5. 54. Ed Whelan, “The HHS Contraception Mandate vs. RFRA—‘Least Restrictive Means,’” National Review Online, Jan. 27, 2012, http://www.nationalreview.com/benchmemos/289534/hhs-contraception-mandate-vs-rfra-leastrestrictive-means-ed-whelan. 34. Reynolds v. United States, 98 U.S. 145, 166 (1879). 35. Frederick Clarkson, Eternal Hostility, 93-94. 36. Minersville School District v. Gobitis, 310 U.S. 586 (1940). 37. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). As a technical matter, Barnette was a free speech case, not a free exercise one; it held that the government cannot compel speech of any kind, though it is widely understood as a case about religious liberty. 38. Engel v. Vitale, 370 U.S. 421 (1962). See David Limbaugh, Persecution: How Liberals are Waging War on Christianity (New York: Harper Perennial, 2004), 18-20. 39. Wallace v. Jaffree, 472 U.S. 38 (1985). 40. Lee v. Weisman, 505 U.S. 577 (1992). 41. Bob Jones Univ. v. United States, 461 U.S. 574, 605 (1983). The case affirmed the Internal Revenue Service’s ruling that a private school’s tax-exempt status depended on maintaining a policy of nondiscrimination. 42. See Robert Cover, “Foreword: Nomos and Narrative,” 97 Harvard University Law Review 4 (1983); Martha Minow, “Should Religious Groups Be Exempt from Civil Rights Laws?” 48 Boston College Law Review 781, 794-801 (2007). 43. See Randall Balmer, The Making of Evangelicalism: REDEFINING RELIGIOUS LIBERTY 51. Ibid., 508. 53. “Religious Freedom Restoration Act,” 1998 Florida HB3201 Chapter 98-412, http://laws.flrules.org/files/ Ch_1998-412.pdf. 55. Elise Viebeck, “Dem-backed law could be downfall of Obama’s birth-control mandate,” Healthwatch blog, The Hill, May 22, 2012, http://thehill.com/blogs/healthwatch/ legal-challenges/228761-dem-law-may-be-downfall-ofmandate. 56. Ed Whelan, “Another Victory for Challengers of HHS Mandate,” National Review Online, Nov. 19, 2012, http:// www.nationalreview.com/bench-memos/333687/anothervictory-challengers-hhs-mandate-ed-whelan. 57. Tyndale House Publishers, Inc. et al v. Sebelius et al, 12-1635, D., Washington, D.C. (2012). http://www.gpo. gov/fdsys/pkg/USCOURTS-dcd-1_12-cv-01635/pdf/USCOURTS-dcd-1_12-cv-01635-0.pdf . 58. Marco Rubio, “Religious Liberty Can Still Trump ObamaCare,” New York Post, Feb. 2, 2012, http://www.nypost.com/p/news/opinion/opedcolumnists/religious_liberty_can_still_trump_Z5rHyrnIwH2DNypuUBb19L. 59. Religious Freedom Restoration Act of 2012, S. 2043, 112th Congress (Jan. 30, 2012), Library of Congress. http:// thomas.loc.gov/cgi-bin/bdquery/z?d112:s.2043. <<< PAGE 44 >>> WWW.POLITICALRESEARCH.ORG ENDNOTES CONTINUED 60. Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 132 S. Ct. 694 (2012). not-an-assault-on-religious-liberty/; “USCCB Responds to Inaccurate Statement of Fact on HHS Mandate Made During Vice Presidential Debate,” United States Conference of Catholic Bishops, Oct. 12, 2012, http://www.usccb.org/ news/2012/12-163.cfm. 61. See Adam Liptak, “Religious Groups Given ‘Exemption’ to Work Bias Law, New York Times, Jan. 11, 2012, http://www.nytimes.com/2012/01/12/us/supreme-courtrecognizes-religious-exception-to-job-discrimination-laws. html. 81. “Hate Crimes Amendment Misses Mark,” North Carolina Family Policy Council, Oct. 14, 2009, http://ncfamily.org/stories/091014s1.html. 62. “Hosannas for the Court,” Wall Street Journal, January 13, 2012, http://online.wsj.com/article/SB100014240529 70204124204577154932994154936.html. 83. See Barringer Gordon, The Spirit of the Law, 138-156. 63. Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 132 S. Ct. 694 (2012). 64. Minow, “Should Religious Groups Be Exempt,” 782. 65. See Diana B. Henriques, “Where Faith Abides, Employees Have Few Rights,” New York Times, Oct. 9, 2006, http://www.nytimes.com/2006/10/09/ business/09religious.html?pagewanted=all&_r=0 66. Minow, “Should Religious Groups Be Exempt,” 785. 67. Martha Minow, “Partners, Not Rivals? Redrawing the Lines Between Public and Private, Nonprofit and Profit, and Secular and Religious,” 80 Boston University Law Review 1061, 1084 (2000). 68. Minow, “Should Religious Groups Be Exempt,” 786. 69. Ibid. 70. See Alex Altman, “The War on Christmas,” Time Magazine, Dec. 24, 2008, http://www.time.com/time/nation/article/0,8599,1868542,00.html. 71. Evans v. Romer, 882 P.2d 1335, 1342 (Colo. 1993); Romer v. Evans, 512 U.S. 620, 635 (1996). 72. Evans v. Romer, 882 P.2d at 1343. 73. Alan Sears and Craig Osten, The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today (Nashville: B&H Books, 2003). 74. Phyllis Schlafly, and George Neumayr, No Higher Power: Obama’s War on Religious Freedom (Washington, D.C.: Regnery Press, 2012), 1. 75. “Rush: Religious Liberty Dies When Barack Obama Rules,” DailyRushbo, YouTube, Mar. 2, 2012, http://www. youtube.com/watch?v=ZFknIUgBZqE . 76. “Limbaugh: Abortion and Birth Control Pills are the ‘Sacrament to the Religion of Liberalism,’” Media Matters, Feb. 10, 2012, http://mediamatters.org/video/2012/02/10/ limbaugh-abortion-and-birth-control-pills-are-t/131356. 77. Mitt Romney, “Presidential Debate,” Denver, CO, Oct. 3, 2012, www.debates.org/index.php?page=October3-2012-debate-transcript. 78. Paul D. Ryan, “Vice Presidential Debate.” 79. Joe Biden, “Vice Presidential Debate.” 80. See Sarah Torre, “Debunked: Biden Claims HHS Not an Assault on Religious Liberty,” The Foundry blog, The Heritage Foundation, Oct. 12, 2012, http://blog.heritage. org/2012/10/12/debunked-biden-claims-hhs-mandate- REDEFINING RELIGIOUS LIBERTY 82. “Intelligent design” is a strategy that represents a specific political and religious belief. 84. See Barringer Gordon, The Spirit of the Law, 138-144. 85. See Herman, The Antigay Agenda, 182-83. 86. 147. Quoted in Barringer Gordon, The Spirit of the Law, 87. Beverly LaHaye, Who But a Woman? (Nashville: Thomas Nelson Publishers, 1984), 100. 88. Barringer Gordon, The Spirit of the Law, 141 quoting Christian Smith, Evangelical America? What Evangelicals Really Want (Berkeley: University of California Press, 2002), 55. 89. “‘Nones’ on the Rise,” The Pew Forum on Religion and Public Life, Oct. 9, 2012, http://www.pewforum.org/Unaffiliated/nones-on-the-rise.aspx. 90. See Ken Blackwell, Tony Perkins, and William G. Boykin, “Religious Liberty, Hate and Every American’s Rights,” American Civil Rights Union, Sept. 17, 2012, http:// theacru.org/acru/religious_liberty_hate_and_every_americans_rights/. The article accuses Southern Poverty Law Center of trying to silence critics and threaten religious liberty. 91. See Turley, “An Unholy Union,” 61, 67. 92. Thomas Berg, “What Same-Sex-Marriage and Religious-Liberty Claims Have in Common,” 5 Northwestern Journal of Law and Social Policy 206 (2010), 206-235. Berg’s article discusses that though there has not been a flood of litigation concerning same-sex marriage as of yet, the union would increase the number of same-sex relationships, and thus grounds for lawsuits. 93. See “Religious Liberty” [n.d.], video clip, Family Research Council, http://www.frc.org/get. cfm?c=ISSUES&issue=RE; “Family Research Council: Advancing Faith, Family, Freedom in America’s Courts,” Family Research Council, Aug. 2012, http://www.frc.org/ issueanalysis/family-research-council-advancing-faithfamily-and-freedom-in-americas-courts. 94. SeeTurley, “An Unholy Union,” 67. 95. Shelby Capacio, “Minnesota for Marriage, Pastor Apologizes for Hitler Comparison,” Fox 9 News, Oct. 24, 2012, http://www.myfoxtwincities.com/story/19897323/ minn-for-marriage-pastor-apologize-for-hitler-comparison. 96. Rob Boston, “Sudden Converstion: Religious Right Warms Up To Church-State Separation in Calif. Yoga Case,” Talk to Action blog, Feb. 21, 2013, http://www.talk2action.org/story/2013/2/21/125151/896. 97. Bill Keller, “Conscience of a Corporation,” New York Times, Feb. 11, 2013, http://www.nytimes.com/2013/02/11/ <<< PAGE 45 >>> WWW.POLITICALRESEARCH.ORG ENDNOTES CONTINUED com/poll/154529/half-americans-support-legal-gay-marriage.aspx. opinion/keller-the-conscience-of-a-corporation. html?pagewanted=all. 112. Bradley S. O’Leary, The Audacity of Deceit: Barack Obama’s War on American Values (WND Books, 2008), 19. 98. Berg, “What Same-Sex Marriage and Religious Liberty Claims Have in Common,” 207. 113. Willock v. Elane Photography, HRD No. 06-12-20-0685 (N.M. Hum. Rts. Comm’n Apr. 9, 2008). 99. See Chai Feldblum, “Moral Conflict and Conflicting Liberties,” in Douglas Laycock, Anthony Picarello, Robin Fretwell Wilson, eds., Same-Sex Marriage and Religious Liberty: Emerging Conlicts (Lanham: Rowman and Littlefield, 2008), 123-56. 114. See Berg, “What Same-Sex Marriage and Religious Liberty Claims Have in Common.” 100. Keller, “Conscience of a Corporation.” 101. “Catholics and New Battle Lines Over Religious Liberty,” Public Religion Research Institute, June 6, 2012, http://publicreligion.org/research/2012/06/fact-sheetcatholics-and-religious-liberty/ 102. Frank Newport, “In U.S., 46% Hold Creationst View of Human Origins,” Gallup, Jun. 1, 2012. http://www.gallup. com/poll/155003/Hold-Creationist-View-Human-Origins. aspx. 103. “‘Nones’ on the Rise,” The Pew Forum on Religion and Public Life. 104. “Most Americans Concerned About Restrictions in Religious Freedom,” Barna Group, Jan. 18, 2013, http:// www.barna.org/culture-articles/600-most-americans-areconcerned-about-restrictions-in-religious-freedom. 105. “Nation’s First State Religious Freedom Caucuses Announced,” American Religious Freedom Newsroom, Oct. 9, 2012, http://religiousfreedomnews.org/announcingnations-first-state-religious-freedom-caucuses-20121009. 106. “Rising Threats to American Religious Freedom,” 2012 National Religious Freedom Conference, Ethics and Public Policy Center, Nov. 28, 2012, http://www.eppc.org/conferences/eventID.225/conf_detail.asp. 107. Ethics and Public Policy Center, “Broad Array of Faith and Policy Leaders Gather in Washington to Defend Religious Freedom, Honor Archbishop William E. Lori of Baltimore; State Caucus Strategy Announced,” Ethics and Public Policy Center’s American Religious Freedom Program, May 24, 2012, http://religiousfreedomnews.org/broadarray-of-faith-and-policy-leaders-gather-in-washington-todefend-religious-freedom-honor-archbishop-william-e-loriof-baltimore-state-caucus-strategy-announced-20120524. 108. Ethics and Public Policy Center, “Protecting Religious Freedom for Americans of All Faiths,” Ethics and Public Policy Center’s American Religious Freedom Program, Nov. 28, 2012, http://religiousfreedomnews.org/wp-content/uploads/2012/08/ARFP-brochure-web.pdf. 109. Ethics and Public Policy Center, “Protecting Religious Freedom;” “Religious Freedom Restoration” Act, 42 USC Chapter 21B at http://www.law.cornell.edu/uscode/text/42/ chapter-21B. 110. See “Catholic Perspectives on Religious Liberty,” Berkley Center for Religion, Peace and World Affairs, Sept. 13, 2012, http://berkleycenter.georgetown.edu/events/ catholic-perspectives-on-religious-liberty 111. Frank Newport, “Half of Americans Support Legal Gay Marriage,” Gallup, May 8, 2012, http://www.gallup. REDEFINING RELIGIOUS LIBERTY 115. Bernstein v. Ocean Grove Camp Meeting Association, No. PN34XB-03008 (N.J. Dep’t of Law and Pub. Safety Dec. 29, 2008); Bernstein v. Ocean Grove Camp Meeting Association, O.A.L. Dkt. No. CRT 6145-09 (Jan. 12, 2012). 116. See Jill P. Capuzzo, “Group Loses Tax Break Over Gay Union Issue,” New York Times, Sept. 18, 2007; Bill Bowman, “$20G due in tax on boardwalk pavilion,” Asbury Park Press, February 23, 2008, http://www.app.com/apps/ pbcs.dll/article?AID=/20080223/NEWS/80223002/1004/ NEWS01&gcheck=1&nclick_check=1. 117. Parker v. Hurley, 514 F.3d 87, 90 (1st Cir. 2008). 118. Robert P. Jones, “Fortnight of Facts, Same-Sex Marriage and Religious Liberty Concerns,” Public Religion Research Institute, Jul. 1, 2012, http://publicreligion. org/2012/07/fortnight-of-facts-same-sex-marriage-andreligious-liberty-concerns/. 119. Jones, “Fortnight of Facts, Religious Liberty and Adoption by Same-Sex Couples.” 120. Kumar Ramanthan, “VA Bill Allowing Campus Group to Ban LGBTQ Students Awaits Gov. Signature,” Political Research Associates, Feb. 12, 2013, http://www.politicalresearch.org/va-bill-allowing-campus-groups-to-ban-lgbtqstudents-awaits-gov-signature/. 121. “The Cry of the Martyrs: The Threat to Religious Liberty around the World,” Family Research Council, http:// www.frc.org/cryofmartyrs. 122. “Issues,” Family Research Council, http://www.frc. org/issues. 123. “About President Obama’s HHS Mandate,” Stand Up for Religious Freedom, http://standupforreligiousfreedom. com/mandate/. 124. See Julie Rovner, “Rules Requiring Contraception Coverage Have Been In Force for Years,” National Public Radio, Feb. 10, 2012, http://www.npr.org/blogs/ health/2012/02/10/146662285/rules-requiring-contraceptive-coverage-have-been-in-force-for-years. 125. “Contraceptive Equity Laws in Your State: Know Your Rights-Use Your Rights, A Consumer Guide,” National Women’s Law Center, Aug. 27, 2012, http://www.nwlc.org/ resource/contraceptive-equity-laws-your-state-know-yourrights-use-your-rights-consumer-guide-0. 126. See “The HHS Mandate Goes Into Effect,” National Review Aug. 1, 2012. http://www.nationalreview.com/articles/312809/hhs-mandate-goes-effect-editors 127. See Barbara Bradley Hagerty, “Catholic Bishops Revolt Against Birth Control Rules,” National Public Radio, Feb. 12, 2012, http://www.npr.org/2012/02/02/146265425/us-catholic-bishops-take-stand-against-birth-control-rules. 128. See Scott Horsely, “White House: ‘Ways to Resolve’ <<< PAGE 46 >>> WWW.POLITICALRESEARCH.ORG ENDNOTES CONTINUED Contraception Issue,” National Public Radio, Feb. 7, 2012, http://www.npr.org/2012/02/07/146547418/poll-many-catholics-support-birth-control-coverage. 129. “HHS Mandate Information Central,” The Becket Fund, http://www.becketfund.org/hhsinformationcentral/. 130. Sarah Kliff and Michelle Boorstein, “The White House’s contraceptives compromise,” The Washington Post, Feb. 1, 2013, http://www.washingtonpost.com/blogs/ wonkblog/wp/2013/02/01/the-white-houses-contraceptives-compromise/?wpisrc=al_comboNP_p. 131. “The End of America? The HHS Mandate’s Threat to Freedom,” Acton Institute, YouTube, June 22, 2012, http:// www.youtube.com/watch?v=P31UflWhyBc. 132. Donald P. Condit, “Commentary: An Unconscionable Threat to Conscience,” Acton Institute blog, Jan. 26, 2012, http://blog.acton.org/archives/28907-commentary-anunconscionable-threat-to-conscience.html. 133. Christians and Healthcare,” Acton Institute, http:// www.acton.org/press/special/christians-and-health-care. 134. “Center for Law and Religious Freedom,” Christian Legal Society, http://www.clsnet.org/page.aspx?pid=448. 135. See Alex Murashko, “Obamacare: HHS Mandate Redefines Religion, Say Christian Legal Experts,” Christian Post, Jun. 29, 2012, http://www.christianpost.com/news/ obamacare-hhs-mandate-redefines-religion-say-christianlegal-experts-77415/. 136. Christian Legal Society v. Martinez, 561 U.S.____ (2010). 137. Adam Liptak. “Justices Rule against Group that Excludes Gay Students,” New York Times, Jun. 28, 2012, http://www.nytimes.com/2010/06/29/us/29court.html. 138. Robert Shibley, “The Fallout from Christian Legal Society,” National Review Online, Feb. 6, 2012, http://www. nationalreview.com/articles/290199/fallout-ichristianlegal-societyi-robert-shibley#. 139. Beta Upsilon Chi, Upsilon Chapter at the University of Florida v. Machen, 586 F .3d 908 (11th Cir. 2009), 140. “Vanderbilt University Curtails Religious Liberty,” Christian Legal Society, http://www.clsnet.org/page. aspx?pid=746. 141. Thomas C. Berg et al, “Open Letter to Vanderbilt University,” Christian Legal Society, Feb. 8, 2012, http://www. clsnet.org/document.doc?id=325. 142. John A. Murry, “The Religious Battle of Vanderbilt,” The Wall Street Journal, May 10, 2012, http://online.wsj. com/article/SB1000142405270230407030457739595416113 7584.html. 143. “Vanderbilt University Curtails Religious Liberty,” Christian Legal Society, Feb. 8, 2012, http://www.clsnet.org/ page.aspx?pid=746. 144. Berg et al, “Open Letter to Vanderbilt University.” 145. Katherine Weber, “Tenn. Governor Vetoes Vanderbilt Bill; All-Comers Policy to Remain in Place,” Christian Post, May 3, 2012, http://www.christianpost.com/news/ tenn-governor-vetoes-vanderbilt-bill-all-comers-policy-toremain-in-place-74331/. REDEFINING RELIGIOUS LIBERTY 146. Jay Reeves, “Christian fraternities offer different path,” USA Today, Nov. 7, 2008, http://usatoday30.usatoday.com/news/nation/2008-11-07-1218901978_x.htm . 147. “Teachers & Religion in Public Schools,” Christian Legal Society, 2006, http://www.clsnet.org/document. doc?id=130 . 148. “CLS Files Brief to Protect Congregations’ Worship Services,” Christian Legal Society, http://www.clsnet.org/ pages/religious-freedom/center-hhs-mandate-wheaton-. 149. “To amend the Patient Protection and Affordable Care Act to protect rights of conscience with regard to requirements for coverage of specific items and services,” S. 1467, 112th Congress (Aug. 2, 2011), Library of Congress, http:// www.gpo.gov/fdsys/pkg/BILLS-112s1467is/pdf/BILLS112s1467is.pdf. 150. “Healthcare Rights of Conscience,” Christian Legal Society, http://www.clsnet.org/page.aspx?pid=461. 151. “Carl H. Esbeck,” University of Missouri School of Law, Jul. 20, 2012, http://law.missouri.edu/faculty/directory/esbeckc.html. 152. Carl H. Esbeck, “The First Federal Congress and the Formation of the Establishment Clause of the First Amendment,” in No Establishment of Religion: America’s Original Contribution to Religious Liberty, eds. Jeremy Gunn and John Witte (Oxford: Oxford University Press, 2012). 153. “No Establishment of Religion: T. Jeremy Gunn,” Oxford University Press, http://www.oup.com/us/catalog/ general/subject/ReligionTheology/American/?view=usa& ci=9780199860371#Features 154. Thomas C. Berg et al., “Religious Freedom, ChurchState Separation, and the Ministerial Exception,” Northwestern University Law Review Colloquy, Vol. 106 (2011), http://www.law.northwestern.edu/lawreview/colloquy/2011/28/LRColl2011n28Garnett.pdf. 155. “Independent Auditor’s Report: Christian Legal Society,” Morrow, PC, Jun. 13, 2012, http://www.clsnet.org/ document.doc?id=372. 156. See Clarkson, Eternal Hostility, 93-94. 157. John. W. Whitehead, “Is the Christian Right Getting Fooled Again?” The Rutherford Institute, Aug. 8, 2011, https://www.rutherford.org/publications_resources/john_ whiteheads_commentary/is_the_christian_right_getting_fooled_again/. 158. John W. Whitehead, “Crucifying Jesus: Killing a Radical,” The Rutherford Institute, Apr. 18, 2011, https://www. rutherford.org/publications_resources/john_whiteheads_ commentary/crucifying_jesus_killing_a_radical/. 159. John W. Whitehead, “Is It Illegal to Celebrate Christmas in the Schools?” The Rutherford Institute, Dec. 6, 2010, https://www.rutherford.org/publications_resources/ john_whiteheads_commentary/is_it_illegal_to_celebrate_ christmas_in_the_schools/. 160. “District Court Orders Phoenix Officials to Respond to Rutherford Institute’s Habeas Corpus on Behalf of Christian Jailed for Home Bible Studies,” The Rutherford Institute, Sept. 4, 2012, https://www.rutherford.org/publications_resources/on_the_front_lines/district_court_orders_ <<< PAGE 47 >>> WWW.POLITICALRESEARCH.ORG ENDNOTES CONTINUED phoenix_officials_to_respond_to_rutherford_institutes. 161. “Justice Dept. To fight school barring Muslim’s scarves,” USA Today, Apr. 15, 2004 http://usatoday30.usatoday.com/news/nation/2004-04-15-school-lawsuit_x.htm. 162. Chris Newmarker, “Rabbi Expands Lawsuit against N.J. Town,” USA Today, Oct. 19, 2007, http://usatoday30. usatoday.com/news/nation/2007-10-19-3957487833_x.htm. 163. Susan Kinzie, “Proposed interfaith retreat center in Virginia tests founder, community,” Washington Post, Jul. 7, 2011, http://www.washingtonpost.com/local/proposedinterfaith-retreat-center-in-virginia-tests-founder-community/2011/06/27/gIQARMPm2H_story.html. 164. Lindsay Barnes III, “Suing the president: Ten years later, John Whitehead looks back at Jones v. Clinton,” The Hook, Jan. 24, 2008, http://www.readthehook.com/81692/ cover-suing-president-ten-years-later-john-whiteheadlooks-back-ijones-v-clintoni. 165. John W. Whitehead, “Can You Trust the President, Congress, or the Courts to Protect Your Privacy Rights,” NJToday.net, Nov. 27, 2012, http://njtoday.net/2012/11/27/ opinion-can-you-trust-the-president-congress-or-thecourts-to-protect-your-privacy-rights/. 166. Rosalind S. Helderman, “Rutherford Institute: Cuccinelli opinion could turn schools into ‘authoritarian police states,’” Virginia Politics blog, The Washington Post, Dec. 2, 2010, http://voices.washingtonpost.com/virginiapolitics/2010/12/rutherford_institute_cuccinell.html. 167. John W. Whitehead, “The Politics of Fear in America: A Nation at War with Itself,” Rutherford Institute, YouTube, Oct. 16, 2012, http://www.youtube.com/watch?v=CPk_ IHAXFu8&list=UUfLI_hEHfIV0B7mIWmajahw&index=3& feature=plcp. 168. John W. Whitehead, “Obama’s First-Term Track Record on Civil Liberties,” Rutherford Institute, YouTube, Nov. 20, 2012, http://www.youtube.com/ watch?v=3nIgXyuAmHQ&list =UUfLIhEHfIV0B7mIWmajahw&index=2& feature=plcp. 170. On Chalcedon generally, see Frederick Clarkson, “Theocratic Dominionism Gains Influence,” Public Eye, March/June 1994. 171. “Our Ministry: The Ministry of Chalcedon,” Chalcedon Foundation, http://chalcedon.edu/about/. 172. “Christianity and the State,” Chalcedon Foundation, http://chalcedon.edu /topics/christianity-and-the-state-2. 173. Martin G. Selbrede, “Education, Liberty, and the Bible,” Chalcedon Foundation, no. 4 (2008), http://chlcdnpospapers.s3.amazonaws.com/Education-10011101.pdf. 174. http://www.plannedparenthood.org/files/PPFA/ PPP_Polling_Memo_on_Birth_Control_Benefit_020712. pdf 175. Pew Research Center, “Public Divided Over Birth Control Insurance Mandate: Religion, Partisan, and Gender Differences,” Feb. 14, 2012, http://www.pewforum.org/ Government/Public-Divided-Over-Birth-Control-Insurance-Mandate.aspx. 176. For the complete report, see Pew Research Center, “Public Divided Over Birth Control Insurance Mandate,” Pew Research Center, Feb. 14, 2012, http://www.peoplepress.org/files/legacy-pdf/02-14-12%20Social%20Issues%20 Release.pdf. 177. David Green, “Christian Companies Can’t Bow to Sinful Mandate,” USA Today, Sept. 12, 2012, http:// usatoday30.usatoday.com/news/opinion/forum/ story/2012-09-12/hhs-mandate-birth-control-sue-hobbylobby/57759226/1. 178. Steven Ertelt, “Judges Dismisses Suit: HHS Mandate No Threat to Religious Freedom,” LifeNews, Oct. 1, 2012, http://www.lifenews.com/2012/10/01/judge-dismisses-suithhs-mandate-no-threat-to-religious-freedom/. 179. Sarah Torre, “Plantiffs Against the HHS Mandate Reach More Than 100 Strong,” The Foundry blog, The Heritage Foundation, Oct. 12, 2012, http://blog.heritage. org/2012/10/11/plaintiffs-against-the-hhs-mandate-reachmore-than-100-strong/ 169. Sears, The Homosexual Agenda, 105. RECOMMENDATIONS NOTES Fraternal Order of Police v. Newark, 170 F.3d 359, 360 (3d Cir. 1999). 2 http://www.newschannel5.com/story/19055935/federaljudge-allows-murfreesboro-mosque-to-open 3 Ross Murray, “Does Religious Liberty Mean Bullying Your Own Flock of Believers?” The Huington Post, October 12, 2012, http://www.huingtonpost.com/ross-murray/ does-religious-liberty-mean-bullying-your-own-lock-ofbelievers_b_1961211.html. 4 The relationship between Catholic economic and social doctrines is complex, and beyond the scope of this report. According to experts, there is an active conservative campaign (on the part of Michael Novak, Thomas Woods, Robert Sirico, and others) within the Church to marshal support for neoliberal or even libertarian economic policies, neither of which have been supported in the recent past. It is possible 1 REDEFINING RELIGIOUS LIBERTY that some of the secular libertarian support for conservative “religious liberty” is part of this efort, although evidence has not been found to support this theory, and the conservative “religious liberty” claims that secular libertarians make are generally civil libertarian in nature, i.e., in accord with their general views. Further, it is also clearly the case that the intra-Catholic disputes are in large part a conservative reaction to Vatican II. This, too, is outside the parameters of the current study. 5 See Frank Cocozzelli, “The Politics of Schism in the Catholic Church,” Public Eye, Fall 2009. http://www. publiceye.org/magazine/v24n3/politics-schism-catholicchurch.html 6 For examples in the recent “religious liberty” debate, see, e.g., http://www.catholicsforchoice.org/news/pr/2013/Whatisthematterwiththebishops.asp . <<< PAGE 48 >>> WWW.POLITICALRESEARCH.ORG ABOUT THE AUTHOR Dr. Jay Michaelson is the religious liberty fellow at Political Research Associates. An attorney and activist, Michaelson has worked as an advocate for LGBTQ people for ten years. He is the founding director of Nehirim, a national LGBTQ Jewish organization, and has worked closely with HRC, GLAAD, and other organizations. His book God vs. Gay? The Religious Case for Equality (Beacon 2011) was an Amazon.com bestseller and Lambda Literary Award finalist. Michaelson holds a J.D. from Yale Law School and a Ph.D. in Jewish Thought from the Hebrew University of Jerusalem. He is a contributing editor to the Forward newspaper and a frequent contributor to The Daily Beast, Religion Dispatches, and The Hufington Post. In 2009, Michaelson was included on the Forward 50 list of influential American Jews, and in 2010 he won the New York Society of Professional Journalists’ award for opinion writing. Michaelson has held teaching positions at Boston University Law School, City College of New York, and Yale University, and is based in New York City. CHALLENGING THE RIGHT, ADVANCING SOCIAL JUSTICE