Bill of Rights

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News coverage of LGBTQ issues enters mop-up phase in the religion marketplace

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News coverage of LGBTQ issues enters mop-up phase in the religion marketplace

It has been a big week for the ongoing LGBTQ+ story. Even as the U.S. Supreme Court heard oral arguments in a case about how much to tolerate personal dissent against same-sex marriage, the U.S. House, the House this morning passed nationwide codification of the gay marriage right that the Court enacted by 5-4 in the 2015 Obergefell ruling.

The new law effectively concludes phase one in the unusually rapid upending of a central societal structure dating from antiquity. The next few years, the media will be covering the mop-up phase facing religious groups and individuals that uphold traditional teachings about marriage, over against anti-discrimination assertions by government, Hollywood, corporate America and private actors.

The current Supreme Court case (303 Creative LLC v. Elenis, docket #21-476) involves a Colorado website designer who does not create pages that celebrate same-sex weddings — though she serves gay customers otherwise. Her free-speech claim is opposed by, for example, Reform Judaism, many liberal Protestants and other social liberals.

Observers figure that the Court, with a more traditionalist makeup than in 2015, will back this designer’s plea and ultimately look kindly upon further religious claims under the Bill of Rights. If so, the future conflict may focus on the Carborundum tactic as the LGBTQ+ movement grinds down conservatives’ energy, time and money in long-running legal maneuvers, meanwhile building cultural pressure to marginalize conscientious objectors as simple bigots.

An opinion-page complaint against religion’s “encroachment” upon society, posted by NBC News and written by Stanford University journal editor Marcie Bianco, neatly encapsulates where this culture war appears to be heading. This is the voice from the cultural left:

Dig a bit deeper, and what this act really represents is the inflexibility of our nation’s institutions and the national entrenchment — despite constitutional assurances to the contrary — of religion.


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Should religion influence U.S. public policy? It always has, on both the left and right

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Should religion influence U.S. public policy? It always has, on both the left and right

THE QUESTION:

Should religion influence U.S. public policy? For instance, look at Protestants.

THE RELIGION GUY’S ANSWER:

The media occasionally press this question upon us as, as with a timely May article by Religion News Service columnist Jeffrey Salkin titled “Should religion influence abortion policy?”

He thinks not. Salkin acknowledges that “religious ideas are part of the public discourse” but even so “those ideas cannot determine policy. Public policy must be open to rational discourse, with provable data, and not merely rely on beliefs, however sacred their sources.” (Naturally, pro-lifers would reply that they rely on “rational discourse” and “provable data” from biology.)

He continues, “America does not allow you to turn your own religion’s theological ideas into public policy. ... This way lies chaos, and worse — holy wars between religious groups. This way lies a return to the Middle Ages. It is time for all religious people to call: Time out.” For Salkin, this approach is required by freedom of religion — or perhaps should we say freedom from religion?

Salkin champions the pro-choice public policy advocated by this own faith, Reform Judaism, which puts this among 17 causes on the agenda of its Washington lobby.

The pro-lifers believe laws should protect the tiny human life growing in the womb. Faiths such as Reform Judaism oppose such protection, believing that women must exercise unimpeded abortion choice. To a journalist, religious alliances on both sides seek to impose their belief as public policy.

Whether America’s religious groups should try to influence policy, they’ve in fact done so since Plymouth Rock and will continue to under the Bill of Rights. Reminders. As much as anything it was Christian zeal that led to abolition of slavery — and 620,000 Civil War deaths. Similarly with the colonists’ rebellion against Britain, women’s vote and, in a remarkable demonstration of Protestant power now mostly regretted, nationwide alcohol Prohibition written into the Constitution.

Which brings us to very important but oft-neglected history depicted convincingly in the new book “Before the Religious Right: Liberal Protestants, Human Rights, and the Polarization of the United States” (University of Pennsylvania Press) by University at Buffalo historian Gene Zubovich.


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How should Biden-era Americans understand 'religious freedom' and First Amendment?

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THE QUESTION:

What does American “religious freedom” now mean?

THE RELIGION GUY’S ANSWER:

Protection of Americans’ “free exercise” of religion has been guaranteed by the Bill of Rights for 229 years and counting.

Until recently, people generally agreed on what this means. The debates involved whether this constitutional right should be exercised or restricted in specific, unusual situations. For example, the Supreme Court has permitted the Santeria faith to conduct ritual slaughter of animals, and exempted Amish teens from mandatory high school attendance laws.

Now this principle is swept up into culture wars that divide the population and the two political parties. In October, the Brookings Institution, a moderately liberal think tank, issued a lengthy white paper titled “A Time to Heal, A Time to Build” with recommendations on religion policy for the U.S. president. It states that the older consensus “began breaking down as new issues emerged, particularly around the struggle for LGBTQ equality.” Brookings consulted 127 experts on church and state for this document, though few were from the so-called “religious right.”

Consider some history: Back in 1993, Democrats were central in passage of the federal “Religious Freedom Restoration Act.” Then-Congressman Chuck Schumer, who is Jewish, introduced the bill in the House, where it won 170 co-sponsors and easily passed by voice vote. In the Senate, Ted Kennedy, a Catholic, was the Senate co-sponsor with Republican Orrin Hatch, a Latter-day Saint, and the act was approved 97–3. President Bill Clinton, a Protestant, enthusiastically signed it into law.

The act states that government cannot “substantially burden” the “exercise of religion,” even when the burden applies to people generally, unless limiting of the freedom is “the least restrictive means” to further a “compelling governmental interest.” Those whose freedom is wrongly suppressed have the right to “obtain appropriate relief” in court. (This restored prior U.S. Supreme Court doctrine that the court had shelved in its 1990 Smith ruling.)

That was then.


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Justice Amy Coney Barrett could soon prove crucial on legal fights over religious vs. LGBTQ rights 

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Senators, other pols and the news media are agog this week over the impact a Supreme Court Justice Amy Coney Barrett, age 48, might have on abortion law long-term and -- immediately -- disputes over the election results and a challenge to Obamacare that comes up for oral arguments November 10.

But reporters on the politics, law or religion beats shouldn't ignore Barrett's potential impact on the continual struggles between religious freedom claims under the Bill of Rights versus LGBTQ rights the Court established in its 2015 Obergefell ruling that legalized same-sex marriage. Oral arguments in a crucial test case, Fulton v. City of Philadelphia [19-123], will occur the day after Election Day — when journalists will be preoccupied with furious tabulation of absentee ballots.

At issue is whether Philadelphia violated Constitutional religious freedom in 2018 by halting the longstanding work of Catholic Social Services in the city's foster care system because church teaching doesn't allow placement of children with same-sex couples.

Such disputes first won media attention when Massachusetts legalized gay marriage and in 2006 shut down the adoption service of Boston Catholic Charities. which did not place children with same-sex couples. A prescient 2006 Weekly Standard piece by marriage traditionalist Maggie Gallagher explored the broader implications for religious agencies and colleges in free speech, freedom of association, employment law and tax exemption.

The Becket Fund, which represents the Fulton plaintiffs, produced this useful 2008 anthology covering all sides on these issues.

On October 5, the legal jousting heated up when Justice Clarence Thomas, joined by Justice Samuel Alito, issued a protest found within this memo (.pdf here).They dissented on Obergefell, but their chief concern now is that the court's ambiguity "continues to have ruinous consequences for religious liberty" that only SCOTUS itself can and must now remedy. A two-line Slate.com. headline typified reactions of the cultural Left:

Two Supreme Court Justices Just Put Marriage Equality on the Chopping Block

LGBT rights were already in jeopardy. If Amy Coney Barrett gets confirmed, they're likely doomed


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Unfinished 2019 business in America's ongoing First Amendment wars over religious liberty

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During the year-end news rush, many or most media – and The Religion Guy as well – missed a significant development in the ongoing religious liberty wars that will be playing out in 2019 and well beyond. 

 On Dec. 10, Business Leaders in Christ filed a federal lawsuit against the University of Iowa for removing the group’s on-campus recognition on grounds of discrimination on the basis of sexual orientation.  This club for business students requires its leaders to uphold traditional Christian beliefs, including that “God’s intention for a sexual relationship is to be between a husband and wife.” See local coverage here.

These sorts of disputes across the nation are thought to be a factor in religious citizens’ support for Donald Trump’s surprise election as president. And the Iowa matter is a significant test case because the Trump Department of Justice filed in support of the club Dec. 21, in line with a 2017 religious liberty policy issued by former Attorney General Jeff Sessions. 

The DoJ’s court brief is a forthright presentation of the argument the Iowa club and other such organizations make for freedom of association, freedom of speech and “free exercise of religion” under the Constitution. Contact: Eric Treene of the Civil Rights Division, 202–514-2228 or eric.treene@usdoj.gov.

More broadly, what does the American nation believe these days regarding religious freedom?

That’s the theme of a related and also neglected story, the Nov. 29 issuance of a new “American Charter of Freedom of Religion and Conscience” (info and text here). The years-long negotiations on this text were sponsored by the Religious Freedom Institute, which evolved from a Georgetown University initiative, and Baylor University’s Institute for Studies of Religion. 

The Religion Guy finds this document important, although at 5,000 words needlessly repetitive.  In essence, it asserts that freedom of religiously grounded thought, observance and public action, and the equal rights of conscience for non-believers, are fundamental to the American heritage and the well-being of all societies. 

Adopting lingo from federal court rulings, the charter says these freedoms are not absolute. But any “substantial burden” limiting them “must be justified by a compelling governmental interest” and implemented by “the least restrictive” means possible. The charter also endorses the separation of religion and state.

It is remarkable — and discouraging to The Guy — that basic Bill of Rights tenets even need to be reiterated in this dramatic fashion, because that tells us they are too often neglected -- or rejected.  

The charter has won a notably varied list of initial endorsers because it purposely avoids taking stands on the “sometimes bitter debates” over how to apply these principles, in particular clashes between religious traditionalists and the LGBTQ community.


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