interior of church
interior of church

Freedom of Religion on the Chopping Block

Crossposted at Humanize

Intolerant secularism is on the march. In a blatant campaign of cultural imperialism, secularists and their leftist allies aim to shrivel the “free exercise” of religion to mere “freedom of worship.”

Freedom of religion and worship aren’t the same concepts. Indeed, free exercise was ably described by the late Supreme Court Justice Frank Murphy as having “a double aspect—freedom of thought and action.” In other words, we are not merely free to believe, but (generally speaking) to also act in the public square according to our faith precepts.

Freedom of worship is more limited. The Catholic Church can teach that the Eucharistic bread and wine transform into the literal body and blood of Christ, while Protestant denominations are equally at liberty to believe that Communion has a symbolic purpose. Mosques and Orthodox synagogues can require women to be segregated from men during services. Pentecostal Christians can speak in tongues. You get the idea.

Both free exercise and freedom of worship are important to religious liberty. We might even say, they’re mutually dependent to freely living a life of faith.

Unfortunately, outside of explicitly worshipping contexts, federal and state laws and legislation are increasingly bent on forcing religious believers to act consistently with the values of reigning secular morality when outside the home, church, synagogue, temple, or mosque. The message is clear: Those with traditional religious views of morality had better keep their beliefs behind closed doors—or suffer the consequences.

Gutting the First Amendment

What about the First Amendment, you ask? Alas, it isn’t what it used to be. In 1990, the Supreme Court significantly weakened the Constitution’s Free Exercise Clause in Employment Division v. Smith.  The case involved two Native Americans denied unemployment benefits after being fired for ingesting peyote during a religious ceremony. The men sued, claiming they were being unconstitutionally punished for participating in a Native American religious ceremony. But a 6–3 Court ruled that because the Oregon drug law was one of “general applicability”—meaning it didn’t explicitly target the men’s faith—their right to “free exercise” wasn’t violated.

This ruling opened the door to oppressing faithful people by simply enacting laws of general applicability that are consistent with contemporary secular beliefs, but also known to be offensive to certain religions. A perfect example of this suppression is ongoing in California. When the administrators of a Catholic hospital in the Dignity Health chain were informed that a patient’s planned hysterectomy was a gender transition, the surgery was canceled as a violation of Catholic moral teaching.

Dignity Health was sued for violating California law requiring facilities to “provide full and equal access to medical procedures without regard to gender.” The trial court dismissed based on religious freedom issues. But the Court of Appeals reinstated the case, a ruling affirmed by the state’s Supreme Court and allowed to remain in effect by the U.S. Supreme Court. Thus, a Catholic hospital may soon be forced to pay considerable damages for adhering to Catholic dogma because the law being enforced wasn’t specifically aimed at suppressing Catholic institutions.

The Religious Freedom Restoration Act

Employment Division was unpopular on the left and right, leading to the passage of the Religious Freedom Restoration Act (RFRA) signed by President Bill Clinton in 1993. The RFRA protects religious freedom by stating that the government “shall not substantially burden a person’s exercise of religion” unless it can demonstrate that the law “is in furtherance of a compelling governmental interest.”

The RFRA only applies to federal laws and regulations. Thus, it’s of no help to Jack Phillips—the “Colorado Wedding Cake Baker”—who has been repeatedly attacked in Colorado courts for refusing to create cakes containing messages that violate his faith beliefs.

Yes, Phillips previously won a narrow victory in the U.S. Supreme Court based on the First Amendment—but only because Colorado’s Human Rights Commissioners investigating his refusal to design a cake for a same-sex marriage celebration made bigoted anti-Christian statements during its administrative proceedings. Phillips was soon sued again in state court for refusing to design a cake celebrating a gender transition and found liable for violating the Colorado Anti-Discrimination Act, a verdict just upheld by the Court of Appeals. Since Colorado has no RFRA—and the law in question applies generally—Phillips’s legal goose may truly be cooked for remaining true to his religious beliefs in the conduct of his business.

Private Sector Attacks Against Religious Freedom

The private sector may pose an even more potent threat to religious liberty by blackballing religious organizations and institutions. Former Kansas Gov. Sam Brownback—the U.S. Ambassador-at-Large for International Religious Freedom during the Trump administration—has a passion for protecting religious liberty. So, after leaving government service, he formed the National Committee for Religious Freedom (NCRF) to advocate for freedom of religion for all Americans.

At one time such a group wouldn’t have been controversial. Today, social progressives, including some who manage many of the country’s most powerful corporations, scorn religious freedom because they see it as an excuse to discriminate against LGBT individuals—which may explain why Chase Bank closed all NCRF accounts last year. Notably, Chase never warned the NCRF that its relationship with the bank was imperiled, nor did it ask for information that might have clarified a legitimate business concern. Thus, it’s reasonable to suspect that Chase “de-banked” the NCRF because it defends religious freedom, including in LGBT controversies such as the Phillips cases.

Private acts of discrimination such as de-banking open a new front in the religious freedom wars. Indeed, Brownback worries that Chase’s actions against the NCRF may reflect a growing trend. He told me: “Some corporations are stealthily discriminating against people of faith and faith-oriented groups. This must stop.”

If he’s right—and I think he is—such private-sector discrimination poses a potent threat to faith institutions that would be difficult to counter since the Constitution only applies against the government. Think about it: If a religious organization can’t bank or, say, buy insurance, it would be hard to remain in operation.

The effectiveness of this threat was just highlighted in a successful lawsuit brought by an individual against a Maryland Catholic hospital for refusing to perform a transgender hysterectomy. The trial judge ruled that the hospital’s refusal was illegal sex discrimination under both Maryland law and the Affordable Care Act (pdf). (The case was complicated by the unusual fact that the Catholic hospital is owned by a state-run network.)

Pertinent to this discussion: The judge applied other cases finding that the federal RFRA doesn’t protect against suits involving private parties. Thus, the government could readily circumvent the RFRA by authorizing private lawsuits against religious institutions that refuse services such as abortion, same-sex couple adoption, or gender transitions.

A gauntlet has been thrown. Secularists are determined to impose their progressive beliefs on conservative faith communities. Those of us who believe that freedom of religion is the “first liberty” had better gird our loins. Because if the right to free exercise of religion is effectively suppressed, freedom of worship will be the next religious liberty on the chopping block.

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.