Breaking the Conservative Monopoly on Religious Liberty

Abstract

In recent years, conservative legal advocates in the U.S. (and increasingly abroad) have engaged in large-scale—and often successful—efforts to gain religious exemptions from laws advancing reproductive and LGBTQ rights. But conservatives do not hold a monopoly on religion or religious liberty litigation. Religious minorities, progressive Christians, and other faith practitioners have brought a diverse range of religious liberty claims. This article surveys ten such lawsuits and analyzes their key differences with claims brought by social conservatives. It argues that advocates of religious pluralism in America and abroad should devote more resources and attention to progressive religious liberty claims.

Keywords:

• religious liberty
• religious freedom
• religious pluralism
• Christian right
• religious progressives
• religious left
• free exercise clause

Cases and Legal Papers

Reynolds v. U.S., 98 U.S. 145 (1879)

Employment Division v. Smith, 494 U.S. 872 (1990)

Tandon v. Newsom, 593 U.S. __ (2021)

Fulton v. Philadelphia, 593 U.S. __ (2021)

Brush & Nib v. City of Phoenix, 247 Ariz. 269 (Ariz. 2019)

Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021)

Downtown Soup Kitchen v. Municipality of Anchorage, 406 F.Supp.3d 776 (D. Ala.)

Demkovich v. St. Andrew, 3 F.4th 968 (7th Cir. 2021)

Religious Sisters of Mercy v. Cochran, 2021 WL 1574628 (D.N.D. 2021)

Franciscan Alliance v. Becerra, 2021 WL 3492338 (N.D. Tex. 2021)

Our Lady’s Inn v. City of St. Louis, 349 F.Supp.3d 805 (E.D. Mo. 2018).

Burwell v. Hobby Lobby, 573 U.S. 682 (2014)

Trinity Lutheran Church v. Comer, 137 S.Ct. 2012 (2017)

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. _ (2018)

Our Lady of Guadalupe v. Morrissey-Berru, 140 S.Ct. 2049 (2020)

Arlene’s Flowers v. Washington, 142 S.Ct. 521 (2021)

Grant of certiorari, 303 Creative LLC v. Elenis, 2022 WL 515867 (2022)

U.S. v. Hoffman, 436 F.Supp.3d 1272 (D. Ariz. 2020).

U.S. v. Warren, No. 17-00341MMJ-001-TUC-RCC (D. Ariz. Nov. 21, 2019)

Complaint, Dousa v. DHS, No. 3:19-CV-01255-LAB-KSC (S.D. Cal. July 8, 2019)

Dousa v. DHS, 2020 WL 434314 (S.D. Cal. 2020)

Defendant’s Supplemental Brief in Opposition to Plaintiff’s Motion for Immediate Possession, United States v. 65.791 Acres of Land, No. 7:18-cv-00329 (S.D. Tex. Dec. 31, 2018)

United States v. 65.791 Acres of Land, No. 7:18-cv-00329 (S.D. Tex. Feb. 22, 2019)

United States v. 5.840 Acres of Land, No. 7:20-cv-00009 (S.D. Tex. Aug. 18, 2020)

Roe v. Wade, 410 U.S. 113 (1973)

Doe v. Parson, 567 S.W.3d 625 (Mo. 2019)

Doe v. Parson, 960 F.3d 1115 (8th Cir. 2020)

Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

Motion for Preliminary Injunction, General Synod of the United Church of Christ v. Reisinger, No. 3:14-cv-213 (W.D.N.C. Apr. 28, 2014)

General Synod of the United Church of Christ v. Reisinger, 12 F.Supp.3d 790 (W.D.N.C. 2014)

Motion for Preliminary Injunction, Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, No. 1:16-cv-1534-JEB (D.D.C. Feb. 9, 2017)

Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 239 F.Supp.3d 77 (D.D.C. 2017)

Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988)

Motion to Dismiss, U.S. v. McAlister, No. 2:18-cr-00022-LGW-RSB (S.D. Ga. July 2, 2018)

Elizabeth McAlister Response to the Court’s Order Directing Supplemental Briefing, U.S. v. McAlister, No. 2:18-cr-00022-LGW-BWC (S.D. Ga. Jan. 16, 2019)

U.S. v. Kelly, 2019 WL 4017424 (S.D. Ga. 2019)

U.S. v. Grady, 18 F.4th 1275 (11th Cir. 2021)

Complaint, Fazaga v. FBI, No. SACV11-00301JST (C.D. Cal. Feb. 22, 2011)

Fazaga v. FBI, 965 F.3d 1015 (9th Cir. 2020)

Cherri v. Mueller, 951 F.Supp.2d 918 (E.D. Mich. 2013)

Defendant’s Answer, Affirmative Defenses, Counterclaims to Plaintiff’s Complaint, and Third-Party Complaint, U.S. v. Safehouse, No. 2:19-cv-00519 (E.D. Pa. Apr. 3, 2019).

U.S. v. Safehouse, 408 F.Supp.3d 583 (E.D. Pa. 2019).

U.S. v. Safehouse, 985 F.3d 225 (3rd Cir. 2021)

Safehouse’s Amended Counterclaims for Declaratory and Injunctive Relief, Safehouse v. U.S., No. 2:19-cv-00519-GAM (E.D. Pa. Sept. 17, 2021)

In re Kemp, 894 F.3d 900 (8th Cir. 2018), cert denied, 139 S. Ct. 1176 (2019).

Order and Magistrate Judge’s Report and Recommendation, U.S. v. Kelly, No. 2:18-cr-22 (S.D. Ga. Apr. 26, 2019)

Motion for Judgment on the Pleadings, U.S. v. Safehouse, No. 2:19-cv-00519 (E.D. Pa. June 11, 2019)

Transcript of Proceedings, U.S. v Warren, No. CR-18-223-TUC-RCC (D. Ariz. May 11, 2018)

DeOtte v. Azar, 393 F. Supp. 3d 490 (N.D. Tex. 2019)

Sharpe Holdings v. HHS, 801 F.3d 927 (8th Cir. 2015)

Catholic Diocese of Beaumont v. Sebelius, 10 F.Supp.3d 725 (E.D. Tex. 2014)

East Texas Baptist University v. Sebelius, 988 F.Supp.2d 743 (S.D. Tex. 2013)

Persico v. Sebelius, 2013 WL 6922024 (W.D. Penn. 2013

Geneva College v. Sebelius 960 F.Supp.2d 588 (W.D. Penn. 2013)

Trump v. Hawaii, 138 S.Ct. 2392 (2018)

Notes

1 In the U.S., the terms “religious liberty” and “religious freedom” are used—often interchangeably—to refer to the legal right to practice one’s faith without government persecution. While the right to religious liberty receives, in the abstract, near-universal support, the precise meaning and limits of this right are highly contested. The term “freedom of religion or belief,” common outside the country, is rarely used in U.S. legal cases, academic, or popular writing.

2 I use the terms “conservative,” “progressive,” “right” and “left” in this article with some hesitancy, with the knowledge that not all religious beliefs may be fully or fairly described in political terms, and that not all people of faith identify with or embrace such terminology (though some do). Nevertheless, these terms are a convenient shorthand to refer to the political ideologies that best overlap with particular religious liberty claims involving highly contested issues such as abortion, same-sex marriage, immigration, and the death penalty.

3 It is worth noting that while all these organizations have worked to expand religious exemptions from reproductive health and LGBTQ rights laws, they are not monolithic in their precise positions or tactics.

4 The article is adapted in part from portions of the Law, Rights, and Religion Project’s 2019 report “Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right.”

5 It’s worth noting that, while suits targeting reproductive and LGBTQ rights are the most prominent and well-organized exemption claims, these are not the only areas of conservative religious exemption litigation. Cases have also been filed seeking exemptions from laws intended to advance worker’s rights, the right to organize, public health, and other areas (Law, Rights, and Religion Project 2021).

6 Specifically, the Court’s ruling hinged on a never-used provision of the city’s child services contract which allowed the city to grant individualized exemptions from the requirement not to discriminate in foster care placement. Such provisions allow for the race-conscience placement of foster care children—who are disproportionally Black—into families that share their race or religion. The Court ruled that since Philadelphia theoretically allowed exemptions from the requirement not to discriminate in foster care placement, it was constitutionally required to grant an exemption to religious foster care agencies seeking to discriminate during the foster care certification process.

7 I and others have argued that these kinds of religious exemptions, which require one party to give up important legal rights (for instance, the right to a nondiscriminatory workplace) in order to accommodate another person’s religious beliefs, violate rather than protect religious liberty. This argument is not the focus of this article, however.

Additional information

Notes on contributors

Elizabeth Reiner Platt

Elizabeth Reiner Platt is the Director of the Law, Rights, and Religion Project at Columbia Law School, where she works to advance religious pluralism, religious liberty and other fundamental rights. She is a leading expert on the intersection of free exercise rights and gender justice in the U.S.