The Great American Rights Bake Off: Freedom of Religion v. Freedom from Discrimination

ABSTRACT

Progressive actors are losing the battle to protect LGBT and reproductive rights from conservative claims of a right to religious discrimination. Increasingly, we are witnessing legal challenges premised on the ground that religious actors’ First Amendment rights and women’s and LGBT rights to equal protection and public accommodation are in conflict. This article contextualizes so-called “competing rights” claims within a longer political and legal history. We utilize a discursive institutionalist framework to assess the strategies used both by conservative political actors promoting a “competing rights” agenda and by LGBT activists focused on narrative change and marriage equality. Finding the limited strategy adopted by marriage equality activists cannot effectively withstand the legal challenge mounted by those claiming “competing rights,” we propose a new strategy for resistance premised on a strict interpretation of church/state separation and suggest a strategy for preserving and expanding public accommodation law through the creation of intersectional coalitions.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

¹ Masterpiece Cakeshop v. Colorado, 584 US ____ (2018).

² See, for example, recent developments allowing a privately operated, religiously affiliated but state-funded South Carolina adoption facility to discriminate against prospective parents on the basis of their religion. Don Byrd, “Lawsuit Challenges New Policy Allowing Religious Discrimination by Tax-Funded Agencies,” Baptist Joint Committee for Religious Liberty (February 16, 2014), available online at: https://bjconline.org/lawsuit-challenges-new-policy-allowing-religious-discrimination-by-tax-funded-agencies/.

³ Roe v. Wade, 410 U.S. 113 (1973); Lawrence v. Texas, 539 U.S. 558 (2003); Obergefell v. Hodges, 576 US ___ (2015).

⁴ The Public Rights/Private Conscience Project, “Unmarried and Unprotected: How Religious Liberty Bills Harm Pregnant People, Families, and Communities of Color” (New York, NY: Center for Gender and Sexuality Law, Columbia Law School, 2017).

⁵ We borrow the idea of coordinative and communicative discourses from Vivien A. Schmidt’s “Discursive Institutionalism: The Explanatory of Ideas and Discourse,” Annual Review of Political Science 11 (2008), pp. 303–26, 310.

⁶ Ibid., 304.

⁷ Ibid., 307.

⁸ Ibid., 310.

⁹ Ian Bruff, “The Rise of Authoritarian Neoliberalism,” Rethinking Marxism 26:1 (2014), p. 114.

¹⁰ Ibid., 114.

¹¹ Ibid., 115.

¹² In more recent work on authoritarian neoliberalism Bruff and Cemal Burak Tansel, argue that there is a “ … growing tendency to prioritize constitutional and legal mechanisms rather than democratic debate and participation.” Our argument aligns with this viewpoint and the strategy we pose in the conclusion that seeks to rethink the ways progressive actors might combat these undemocratic moves. For more see: Ian Bruff and Cemal Burak Tansel, “Authoritarian Neoliberalism: Trajectories of Knowledge Production and Praxis,” Globalizations 16:3 (2019), p. 234.

¹³ Reynolds v. United States 98 U.S. 145 (1878).

¹⁴ Kenneth D. Wald and Allison Calhoun-Brown, Religion and Politics in the United States (Lanham, MD: Rowman and Littlefield, 2011), pp. 63–104.

¹⁵ Employment Division, Department of Human Resources of Oregon v. Smith 494 U.S. 872 (1990).

¹⁶ Wald and Calhoun-Brown, Religion and Politics, p. 93.

¹⁷ See, for example: Board of Education of Westside Community Schools v. Mergens By and Through Mergens 496 U.S. 226 (1990); Mitchell v. Helms 530 U.S. 793 (2000); Good News Club v. Milford Central School 533 U.S. 98 (2001); Zelman v. Simon-Harris 536 U.S. 639 (2002); Hein v. Freedom from Religion Foundation 551 U.S. 587 (2007).

¹⁸ Sherbert v. Verner 374 U.S. 398 (1963).

¹⁹ See, for example, Abner S. Greene, writing “I argue that the Establishment Clause should be read to forbid enacting legislation for the express purpose of advancing the values believed to be commanded by religion. Precisely because religion should be excluded from politics in this way, my argument continues, the Free Exercise Clause requires the recognition of religious faith as a ground for exemption from legal obligation. Thus, I reject Smith’s implicit political predicate that all values may be offered for majority support to be enacted into law.” Abner S. Greene, “The Political Balance of the Religion Clauses,” 102 Yale L.J. 1611 (1992–1993)1613. For more on Smith, see, for example, William P. Marshall, “In Defense of Smith and Free Exercise Revisionism,” University of Chicago Law Review 58:1 (1991); Richard J. Regan, “The Free Exercise of Religion,” The American Constitution and Religion (Baltimore, MD: Catholic University Press of America, 2013); Brett G. Scharff, “Protecting Religious Freedom: Two Counterintuitive Dialectics in US Free Exercise Jurisprudence,” in Paul Babi and Neville Rochow (eds), Freedom of Religion under Bill of Rights, (Adelaide, AU: University of Adelaide Press, 2012).

²⁰ Robert F. Drinan and Jennifer I. Huffman, “The Religious Freedom Restoration Act: A Legislative History,” Journal of Law and Religion 10:2 (1993–1994), pp. 531–41.

²¹ For a comprehensive and frequently updated state-by-state list, see “State Religious Exemption Laws,” Movement Advancement Project, available online at: http://LGBTmap.org/equality-maps/religious_exemption_laws.

²² Terri R. Day and Danielle Weatherby, “LGBT Rights and the Mini-RFRA: A Return to Separate But Equal,” DuPaul Law Review 65:3 (2016), pp. 919–20.

²³ Burwell v. Hobby Lobby 573 U.S. ___ (2014).

²⁴ See, for example, Amy J. Sepinwall, “Conscience and Complicity: Assessing Pleas for Religious Exemptions in ‘Hobby Lobby’s’ Wake,” The University of Chicago Law Review 82:4 (2015), pp. 1897–1980.

²⁵ For more on the impact of Hobby Lobby in relation to the conflicting rights paradigm, see, for example, Roman Sankoviych, “Supremacy of Law or Religion: Congress’s Power to Amend the Constitution Bypassing Constraints of the Constitutional Process,” DePaul Business and Commercial Law Journal 15:2 (2017); Sepinwall, “Conscience and Complicity”; Alisa Von Hagel and Daniela Mansbach, “The Battle for Recognition: Religious Freedom Post-Obergefell,” Law Culture and the Humanities I:23 (2017).

²⁶ Daniel Schlozman, When Movements Anchor Parties (Princeton, NJ: Princeton University Press, 2015).

²⁷ For a broader discussion on “Pro-Family” Politics, see: J. Brooks Flippen, Jimmy Carter, The Politics of Family, and the Rise of the Religious Right (Athens, GA: University of Georgia Press, 2011); Leo P. Ribuffo, “Family Policy Past as Prologue: Jimmy Carter, The White House Conference on Families, and the Mobilization of the New Christian Right,” Review of Policy Research 23:2 (2006); Robert O. Self, All in the Family (New York, NY: Hill and Wang, 2012).

²⁸ See, for example: Randall Balmer, Thy Kingdom Come (New York, NY: Basic Books, 2006); Sara Diamond, Not by Politics Alone: The Enduring Influence of the Christian Right (New York: The Guilford Press, 1998); Sara Diamond, Spiritual Warfare: The Politics of the Christian Right, (Boston, MA: South End Press, 1989); Dan Gilgoff, The Jesus Machine (New York, NY: St. Martin’s Griffin, 2007); Esther Kaplan, With God on Their Side (New York, NY: The New Press, 2004); Robert C. Liebman and Robert Wunthnow (eds), The New Christian Right (New York, NY: Aldine Publishing Company, 1983); David G. Bromley and Anson Shupe (eds), New Christian Politics (Macon, GA: Mercer, 1984); William Martin, With God on Our Side (New York, NY: Broadway Books, 1996); Daniel K. Williams, God’s Own Party (Oxford, UK: Oxford University Press, 2010); Gary Wills, Heart and Head: American Christianities (New York, NY: The Penguin Press, 2007).

²⁹ Marcia McCormick, “Religious Privilege to Discriminate as Religious Freedom,” Washburn Law Journal 56 (2017), p. 230.

³⁰ Lisa Duggan, The Twilight of Equality?: Neoliberalism, Cultural Politics, and the Attack on Democracy (Boston, MA: Beacon Press, 2003), p. 52.

³¹ Duggan, Twilight, p. 53.

³² John C. Green, Mark J. Rozell, and Clyde Wilcox, (eds), The Values Campaign? The Christian Right and the 2004 Elections, (Washington, DC: Georgetown University Press, 2006).

³³ Melissa Murray, “Marriage Rights and Parental Rights: Parents, the State, and Proposition 8,” Stanford Journal of Civil Rights & Civil Liberties 5 (2009), p. 359.

³⁴ Rob Stein, “Rule Shields Health Workers Who Withhold Care Based on Belief,” Washington Post (December 19, 2008), available online at: http://www.washingtonpost.com/wp-dyn/content/article/2008/12/18/AR2008121801556.html?sub=AR.

³⁵ Religious Liberty Accommodations Act, Mississippi House Bill 1523 (2016).

³⁶ Movement Advancement Project, Tipping the Scales: The coordinated Attack on LGBT People, Women, Parents, Children, and Health Care (Boulder, CO: Movement Advancement Project, 2017); The Public Rights/Private Conscience Project, “Unmarried and Unprotected.”

³⁷ Nancy J. Knauer, “Religious Exemptions, Marriage Equality, and the Establishment of Religion,” University of Missouri, Kansas City Law Review 84:1 (2016), pp. 787–90.

³⁸ Lawrence v. Texas, 539 U.S. 558 (2003).

³⁹ Nan D. Hunter, “Living with Lawrence,” Georgetown Law Faculty Publications and Other Works (2004), p. 1125.

⁴⁰ Susan Gluck Mezey, Queers in Court Gay Rights Law and Public Policy (Lanham, MD: Rowman & Littlefield, 2007), p. 19.

⁴¹ Lawrence v. Texas 539 U.S. 558 (2003), p. 2.

⁴² Ibid., 18.

⁴³ Ibid., 3.

⁴⁴ Obergefell v. Hodges 576 U.S. ___ (2015), p. 3.

⁴⁵ Ibid., 4.

⁴⁶ Ibid., 4–6.

⁴⁷ Ibid., 13.

⁴⁸ Ibid.

⁴⁹ Ibid., 15.

⁵⁰ Ibid., 16.

⁵¹ Boy Scouts of America et al. v. Dale 530 U.S. 640 (2000).

⁵² See, for example: Nan D. Hunter, “Interpreting Liberty and Equality Through the Lens of Marriage,” Georgetown Law Faculty Publications and Other Works 6:107 (2015).

⁵³ Congressional Prayer Caucus Foundation (CPCF), Report and Analysis on Religious Freedom Measures Impacting Prayer and Faith in America (Chesapeake, VA: CPC Foundation, 2017); Frederick Clarkson, “‘Project Blitz’ Seeks to do for Christian Nationalism What ALEC Does for Big Business,” Rewire News (April 27, 2018), available online at: http://religiondispatches.org/project-blitz-seeks-to-do-for-christian-nationalism-what-alec-does-for-big-business/.

⁵⁴ CPCF, “Report and Analysis,” p. 4.

⁵⁵ Ibid., 6.

⁵⁶ Ian Bruff, “The Rise of Authoritarian Neoliberalism,” p. 126.

⁵⁷ Marriage Equality USA (MEUSA), “Getting to I Do,” (2015), available online at: https://www.marriageequality.org/gettingtoido.

⁵⁸ Ibid.

⁵⁹ Harry T. Quick “Public Accommodations: A Justification of Title II of the Civil Rights Act of 1964,” Case Western Reserve Law Review 16:3 (1965).

⁶⁰ Eric Schickler, Racial Realignment: The Transformation of American Liberalism, 1932–1965 (Princeton, NJ: Princeton University Press, 2016).

Additional information

Notes on contributors

Chelsea Ebin

Dr. Chelsea Ebin is a Visiting Assistant Professor at Rollins College who teaches a range of courses on American political behavior and institutions. Her research focuses broadly on American conservatism and more narrowly on the relationship between conservative religious groups and US politics. Chelsea is currently at work on research that examines how conservative Catholics and Protestants have formed an enduring coalition within the American Right.

J. Ricky Price

Dr. J. Ricky Price is a Visiting Assistant Professor at Hobart and William Smith Colleges who teaches courses in American Political Development, Critical Identity Studies, and Science and Technology Studies. His research integrates the history of science, identities, and institutions as a way to understand how power is negotiated between our bodies and the state.