New frontiers of religious freedom? LGBTQ rights versus religious conscience

ABSTRACT

One frontier of public deliberation on religious freedom involves the clash of religious conscience with government rules against discrimination. As American courts consider issues pitting religious believers against other groups, especially LGBTQ citizens, the public is deeply divided. A paradigmatic case has been the Masterpiece Cakeshop litigation, testing whether a Christian baker could refuse to produce a wedding cake for a same-sex couple given his religious objections. As that case continues and similar confrontations proliferate, the First Amendment’s ‘free exercise’ clause produces new dilemmas. Although public attitudes seldom influence judicial decisions directly, in the long run American courts may well ‘follow the election returns’. This contribution considers public assessments of the importance of religious liberty and then examines attitudes on the Masterpiece controversy, using data from the Democracy Fund’s Voter Survey and the 2016 and 2020 American National Election Studies (ANES). We find that religious factors play a major role in determining citizen opinion, as the public reacts very much along ‘culture wars’ lines. But personal attitudes toward LGBTQ citizens also have a major direct impact on views about ‘conscience exemptions’.

KEYWORDS:

• Religious liberty
• conscience exemptions
• culture wars
• ethnoreligious group
• LGBTQ rights

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. Phillips may have won his case before the Supreme Court, but in June 2021 he lost a subsequent case raising the same issues in Federal district court (Paz 2021).

2. Most cases arise under charges of illegal discrimination in ‘public accommodations’ or ‘employment’ under federal and state statutes.

3. Barrett was criticised by LGBTQ rights and civil liberties organisations for serving on the board of her children’s private Christian school which ‘effectively barred admission to children of same-sex parents and made it plain that openly gay and lesbian teachers weren’t welcome in the classroom’ (Swisher 2019).

4. To be sure, the Court agreed to hear only the ‘free speech’ defence of her refusal, not the ‘free exercise’ claim.

5. For a thorough recent review of the hotly debated issue on the Supreme Court’s relationship to public opinion, see Johnson and Strother (2021).

6. Our classification of religious groups follows the scheme described in Smidt, Kellstedt, and Guth (2009), developed over several decades for use with the American National Election Studies. The classification system in Steensland et al. (2000) grew out of these earlier efforts, but was designed specifically for analysis of the General Social Survey. In practice, the two systems produce virtually identical assignments.

7. See Democracy Fund Voter Survey, https://www.voterstudygroup.org/data.

8. ‘Christian nationalism’ has recently received much scholarly and journalistic press (Whitehead and Perry 2020). We measure it here by an item on how important it is for a ‘true American’ to be a Christian.

9. As demographics are not our main concern and have modest correlations with the dependent variable and little direct effect in the regressions, we omit them from the table. Only age (r=.28) is fairly strong, as older Americans tend to see religious liberty as important, as to a lesser extent do women (.08). Higher education and income work weakly in the other direction (−.08 and −.07), respectively.

10. Respondents from these three traditions are grouped together, given their small numbers in the surveys and their common status as religious minorities in the United States.

11. For more information on the surveys, see https://electionstudies.org/data-center/2016-time-series-study/ and https://electionstudies.org/data-center/2020-time-series-study/.

12. A few surveys have revealed less support for conscience rights. For example, the Public Religion Research Institute (PRRI) in 2014 and 2019 found lower levels than in the two ANES surveys used here or in the 2016 Pew Research Center analysis, but noted that support was increasing (Public Religion Research Institute 2019). Other specialised surveys showing less support for religious exemptions asked questions not ‘counterbalanced’ with opposing considerations (Flores, Mallory, and Conron 2020).

13. An earlier version of this contribution used the 2016 ANES data for the analysis. A close examination shows virtually identical conclusions from that exercise and the analysis presented here, suggesting a great deal of continuity in the factors influencing attitudes.

14. We combined the ANES’s traditional seven-point partisan and ideology self-identification measures into a single additive index, given their high correlation (alpha=.78).

15. These variables correlate strongly with each other and are part of an even larger configuration of ‘populist’ attitudes held by religious traditionalists (Guth 2019).

16. As our focus is on religion and associated factors, we have again omitted demographic variables from the analysis. As with issue salience, demographics have only very modest correlations: older citizens are more likely to favour exemptions (r=.129),women, less likely (−.086), and those with higher education also slightly less likely (−.049). Higher income works modestly for exemptions (.027). Only education survives if included in Model 3 in Table 3 (but this inclusion adds nothing to the variance explained), confirming earlier findings that demographic variables have very few direct effects on these attitudes (Castle 2019).

17. Although most surveys show solid majorities favouring the retention of Roe v. Wade (1973), more detailed questions show that many supporters of that decision approve of abortion only in limited circumstances.

18. See, for example, the statement on the depth of division among legal experts and the public in U.S. Commission on Civil Rights (2016, 17).

19. These stark differences are exemplified by the purging (often literal) of ‘pro-life’ Democrats from that party and the increasingly rigorous ‘litmus test’ of pro-life stances for GOP candidates.

20. The Obama U.S. Commission on Civil Rights was adamant in its dismissal of exemptions, although some saw the Obama administration being more sympathetic in practice (U.S. Commission on Civil Rights 2016; Laycock 2018).

21. These acts were passed in the wake of the Court’s decision in Employment Division v. Smith (1990), limiting religious claims in the face of generally applicable regulations.

22. This irony was noted by Justice Thomas in a dissent from the Court’s refusal to consider a conscience claim in late 2020: ‘By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix’ (quoted in Barnes 2020). See the similar contention of Commissioner Peter Kirsanow, in U.S. Commission on Civil Rights (2016), 42).

23. The narrower scope for such religious claims in a largely secularised Europe would seem to support this claim (U.S. Commission on Civil Rights 2016, 23).

Additional information

Funding

This research was supported by the William R. Kenan, Jr. Endowment at Furman University.

Notes on contributors

James L. Guth

James L. Guth is William R. Kenan, Jr. Professor of Politics and International Affairs at Furman University in Greenville, South Carolina. He has written extensively on religion in American and European politics. Recent publications include ‘Party Choice in Europe: Social Cleavages and the Rise of Populist Parties’, Party Politics (2021); ‘Protestant Clergy and Christian Nationalism’, Perspectives in Religious Studies (2021); ‘Protestantism and Europe’, The Oxford Handbook of Religion and Europe (2021); ‘Losing Faith: Religion and Attitudes toward the European Union in Uncertain Times’, Journal of Common Market Studies (2021); ‘Are White Evangelicals Populists?’ Review of Faith and International Affairs (2019).