As the Judiciary Committee hearings for Judge Neal Gorsuch begin, I retain my impression that he is in his way a splendid fellow, intelligent and hard working, and, as near as I can tell, devoid of the streak of jack-in-office meanness that mars the legacy of his predecessor, Antonin Scalia.
But I also wonder whether he has a blind spot in an area that should concern Americans—religious freedom. Consider his separate opinion in the Tenth Circuit’s opinion in Burwell v. Hobby Lobby Stores. Remember the issue in Hobby Lobby. Under the Affordable Care Act, employers are required to provide a certain level of health insurance benefits to full-time employees. One of those benefits, under Health and Human Services regulations, is coverage of all medically approved methods of contraception.
The decision of whether to use contraception, and, if so, which method to use, remains with the employee. It is a confidential medical decision. By law neither the employer or anyone else can inquire about it. Nonetheless, the owners of the Hobby Lobby corporation objected on religious reasons to certain forms of contraception, and did not wish to provide insurance that covered them. They challenged the requirement of coverage as a “substantial burden” on their “free exercise of religion.”
The Tenth Circuit held that under RFRA the owners had a right to refuse to provide the coverage; Gorsuch wrote a separate concurrence describing the spiritual issue at stake:
All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. The Greens [owners of Hobby Lobby Stores] are among those who seek guidance from their faith on these questions.
It is characteristically literate and philosophically sophisticated. Indeed, the discussion of “complicity” would be fine as far as it goes—had it been followed by any sign of recognition that the employees of Hobby Lobby stores who wish access to contraception are following their own consciences and not bound by their employers’. They were entitled by statute to the benefits, and entitled under the Constitution to use medically approved contraception, regardless of what others think.
In short, there is no legal scheme in which they can be constitutionally branded as “wrongdoers.” Beyond that, the record gives no reason to doubt that their conduct has religious and spiritual roots as important to them as the storeowners’ evangelical Christian faith is to them. Gorsuch, however, simply privileges one set of beliefs, and wipes out the others.
This, I think, embodies a persistent misconception about “religious freedom.” Some beliefs are religious, and protected; other beliefs on the very same issues are secular, and should be brushed aside.
No one can be against the concept of “religious freedom.” No one questions, either, that the concept extends beyond “purely” religious matters into economic and public life. But mapping that extension takes careful thought, and wherever lines are drawn, some people will feel they have lost. That’s because in a lot of areas—anti-discrimination law, for example, or medical care, to name just two—religious claims involve the rights of many different people, each of whom has a claim to freedom of conscience. Those claims don’t depend on formal labels or church membership; and they all must be weighed in the balance. Balancing is hard, subjective, and ultimately often unsatisfying; yet balancing is the soul of constitutional law.
In the United States, whose culture and history has been shaped by Christianity, it’s easy to skip the balancing stage. Many people assume that “religious freedom” centers around familiar “religious” beliefs—Christianity, in other words—as opposed to those of religious outsiders, whether they are Mormons, Muslims, or atheists.
It’s a persistent misapprehension.
Right now, a wide variety of measures are pending in front of state legislatures that will allow employers and even government officials to discriminate against same-sex couples. A proposed federal statute, the First Amendment Defense Act was introduced in the last Congress. Candidate Donald Trump promised during the campaign to sign it. The act would protect any person against losing accreditation, tax benefits, or a federal contract “wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.”
A similar bill, Virginia H.B. 2025 was passed by the General Assembly and is now on Governor Terry McAuliffe’s desk. A draft executive order on “religious freedom” with similar language was leaked from the White House earlier this year Measures with similar wording are pending in other states.
All of these “religious freedom measures” erect strong legal protections for one and only one set of religious beliefs: opposition to LGBT rights and marriage equality.
Holders of these beliefs would be protected against any adverse action for acting on them—that is, for example, allowed to hold federal or state contracts while firing LGBT employees or denying spousal benefits to same-sex couples.
There’s no balance here: these measures explicitly subordinate the rights of LGBTQ employees, same-sex couples, women with reproductive health needs, patients at medical facilities, clients of social-service agencies, and others to the asserted consciences of their employers or providers. Yet individual beliefs in the validity of same-sex unions, in the importance of protecting LGBT individuals from discrimination, and in guaranteeing women control of their own fertility, have religious and spiritual roots too. Under the Constitution, beliefs are created equal. And a law that explicitly protects discrimination against those believers relegates their marriages and their consciences to second-class status.
These schemes are not protection of “religious freedom.” They are official designations of privileged religious beliefs.
One would like to believe the courts would set such rules aside without ceremony. But the legal landscape makes that less certain than it should be. Judges, as much as politicians, are susceptible to the fallacy that only some beliefs are religious.
When Hobby Lobby reached the Supreme Court in 2014, Justice Samuel Alito was as solicitous of the burden on the owners’ religious beliefs as Gorsuch had been in the Tenth circuit. The issue, Alito said, “implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” Forcing employers to allow their employees to make such a choice struck at the rights of the employers, he said.
In the opinion, Alito dodged a set of earlier cases in which taxpayers had objected to the state funding of religious schools as a violation of their own religious rights. The Court rejected that claim: the payments didn’t burden the taxpayers’ Free Exercise rights because they did not coerce the taxpayers themselves to engage in religious observance. Just so, the government argued in Hobby Lobby, the contraceptive coverage requirement didn’t coerce the owners to engage in any religious behavior.
Those cases, Alito smoothly replied, didn’t involve religious freedom: “While the subsidies were clearly contrary to the challengers’ views on a secular issue, namely, proper church-state relations, the challengers never articulated a religious objection to the subsidies.”
This sophistry is balder than James Carville. From the time of Mark’s Gospel (“Render unto Caesar”) through James Madison’s “Memorial and Remonstrance” (tax payments to churches endanger “the purity and efficacy of religion”) to the Second Vatican Council’s Dignatitis Humanae, (“a wrong is done when government imposes upon its people, by force or fear or other means, the profession or repudiation of any religion”), Western believers have debated the dangers of an alliance between God and Caesar. A belief in separation is profoundly spiritual—but apparently not to the Hobby Lobby majority.
I would like to see someone at Gorsuch’s hearing ask whether there is room in his vision of religious freedom for those other spiritual traditions, and how the balance should be struck between individual spiritual freedom and the desire of powerful institutions to control those who work for them. On the strength of the Hobby Lobby opinion, he seems to think there is no balance: the economically and culturally powerful prevail. If so, this is a serious blind spot: privileging specific beliefs and believers is, in fact, a pernicious spiritual gerrymander—Caesar’s sword closing liberty’s garden to all but a favored few.
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