Bishops' strategy endangering religious freedom

Fr. Thomas Reese, S.J.
National Catholic Reporter
July 17, 2015

Being on the losing side of a revolution can be very dangerous for churches, according to Douglas Laycock, professor of law and religious studies at the University of Virginia. He argues that by continuing to fight on the losing side of the sexual revolution, churches endanger their religious liberty. He calls on churches to defend their religious liberty but not to try to impose their sexual values on others.

Laycock believes that "human liberty is a good thing, and especially with respect to matters that are deeply personal." Therefore, he believes that "the free exercise of religion is a good thing and that control of our own sex lives is a good thing."

For many years, he reports, "I have been urging the two sides in the culture wars to concentrate on protecting their own liberty and to stop trying to regulate the liberty of the other side. And for the most part, I have had zero success whatsoever."

In recent years he warned religious conservatives that they must make this move while the outcome of the same-sex marriage debate was still in doubt, while they still had some bargaining leverage. They should support gay rights laws and marriage equality laws, he argued, with religious exemptions.

"No one listened to those warnings either," he complained. "The disagreement over sexual issues is seriously undermining support for religious liberty. ... Hostility to religious liberty is breaking out all over."

Laycock made his case in a talk at the Markkula Center for Applied Ethics at Santa Clara University and in an article in the University of Illinois Law Review.

Interpretation of religious liberty

He begins by looking at religious liberty as practiced in the United States and France. "The basic French statute on religious liberty has all the same key phrases as the American First Amendment," he says. Both claim to respect the free exercise of religion and prohibit the establishment of religion, but in practice they have been interpreted very differently.

In France, girls can wear scarves to school as a fashion statement, but they are forbidden to wear them for religious reasons. Exemptions from laws for religious reasons, which are in the thousands in the United States, are not made in France. There are restrictions on religious speech, especially evangelism. The French state owns and maintains churches. It also pays for religious schools. "The whole body of [French] law seems designed to keep the religious groups dependent on the state and on a short leash," he concludes.

Laycock argues that these differences have more to do with history and culture than with legal texts. While the churches in America supported the American revolution, in France, "the Catholic church opposed not just the [French] revolution’s excess, but the revolution itself." It continued its opposition by supporting counterrevolutionary movements through most of the 19th century.

"The church was seen as opposed to the liberties of the people; it made itself the subject of enmity, suspicion, and hostile regulation," he writes. "The result has been a very narrow view of religious liberty in French law and in French public opinion."

In contrast, in the United States, the churches sided with the revolutionaries. "In the United States, religion and liberty were perceived as natural allies; in France, religion and liberty were perceived as natural enemies."

There is a lesson here for conservative churches who have been fighting a losing battle against the sexual revolution for 50 years: they may well be endangering their religious liberty. "Persistent Catholic opposition to the French Revolution permanently turned France to a very narrow view of religious liberty; persistent religious opposition to the sexual revolution may be having similar consequences here."

"The reaction we are seeing, the increasing hostility to religious liberty, the increasing reluctance to make any kind of exemption, is a function of that opposition," he said. "We are well down the path to a much more French-like understanding of religious liberty both in our law and in public opinion."

The blame for this reaction cannot be pinned only on the left. The tactics of the right in opposing the sexual revolution have encouraged this response.

"For tens of millions of Americans, conservative churches have made themselves the enemy of liberty." He fears that more and more Americans are coming to perceive claims of "religious liberty" as a cover for believers who are trying to impose their views on others. This will move America from its traditional approach to religious liberty to a more French approach.

A risky step

This warning comes from a friend. Laycock is a strong supporter of religious liberty. He supported the federal Religious Freedom and Restoration Act and state RFRAs modeled on the federal statute. He supports exemptions for religious nonprofits.

He agrees with conservative churches who see "any requirement that they buy insurance that covers contraception coverage as imposing secular morality inside religious institutions." But he acknowledges that "those demanding contraception do not see themselves as imposing secular rules on the church; they see the church as imposing religious rules on them."

He warns the bishops, "it is a risky step to interfere with the most intimate details of other people’s lives while loudly claiming liberty for yourself. If you stand in the way of a revolution and lose, there will be consequences."

As a result, he argues that the bishops should accept the Obama administration's final rules for implementing the Affordable Care Act, which exempted churches from paying for contraceptives and required that insurance companies provide free contraceptives to the employees of religious colleges, universities, and hospitals if the institution notified the insurance company of its objections to coverage.

"These final rules offer a serious plan to protect religious liberty without depriving women of contraception," he writes. "These final rules are utterly inconsistent with the common charge that the Obama administration is engaged in a 'war on religion.' "

"The bishops would be well advised to accept a compromise that gives them reasonable insulation from the provision of contraceptives, even if that insulation is not air tight." His rationale is even stronger now that the government has said that instead of notifying the insurance company, religious institutions can notify the Department of Health and Human Services of their objections.

He thinks that the bishops should have separated out the issues of abortion and emergency contraception, which may interfere with the implantation of a fertilized ovum. Even people who disagree with the bishops, he believes, can at least understand their argument and why they seek more stringent protections there.

He also argues that churches should drop their opposition to gay marriage but should support exemptions for religious believers. What he proposes is a "live and let live" approach to the culture wars, except on the issue of abortion.

"One of the ironies of the culture wars is that religious minorities and gays and lesbians make essentially parallel demands on the larger society," he writes. "I cannot fundamentally change who I am, they each say. You cannot interfere with those things constitutive of my identity; on the most fundamental things, you must let me live my life according to my own values."

Each side of the sexual revolution sees itself as opposing a grave evil and protecting a fundamental human right.

Laycock believes that it is possible to resolve the culture wars if each side agrees to respect the freedom of the other. He notes that the issue is no longer whether contraceptives are available or whether gays can have a wedding with flowers, caterers, and photographers. These are readily available in the market place. "The issue is whether the religious conscientious objector must be the one who provides these things."

In order to divert us from the path toward a French interpretation of religious liberty, Laycock recommends that the religious side should "focus on protecting its own liberty, and to give up on regulating other people’s liberty." They should "stop seeking legal restrictions on other people’s sex lives and other people’s relationships."

A restricted view

What evidence does Laycock present to show that America is moving towards a more restricted view of religious liberty?

Laycock notes that "for too many on the pro-choice, gay rights, and women’s health care side of these issues, the free exercise of religion begins to look like a bad idea. It is a bad idea because it empowers their enemies." As a result, there is growing opposition to religious exemptions to any laws.

Laycock quotes Colorado State Sen. Pat Steadman as telling those who wanted a religious exemption to a bill he authored, "Get thee to a nunnery and live there then. Go live a monastic life away from modern society, away from people you can’t see as equal to yourself, away from the stream of commerce where you may have to serve them."

He also notes that although the 1993 Religious Freedom and Restoration Act passed almost unanimously in Congress, within five years Congress was deadlocked over passage of a bill in response to the Supreme Court's decision saying RFRA could not be applied to the states. Gay and civil rights groups demanded removing religious exemptions for civil rights laws, so the bill died. An amendment to only exempt very small business was defeated. The churches should have embraced that amendment, says Laycock.

By 2014, RFRA had become politically toxic. Laycock writes that "an overreaching bill in Kansas that was not a RFRA at all, and proposed amendments to clarify that the Arizona RFRA applies to business people, combined with anti-gay statements from the Arizona bill’s sponsor, enabled opponents to create an overwhelming public reaction that took down the Kansas and Arizona bills and proposed state RFRAs in Georgia and Ohio."

Likewise, there were many falsehoods from both sides in the recent debate over the Indiana RFRA, which Laycock supported. Republican sponsors, who did not bother to understand the legal language they were enacting, pandered to their base promising that "it would let them discriminate and told the rest of the country that it would not let anyone discriminate." In response, the left launched "a massive propaganda campaign. 'This bill is a license to discriminate,' which of course it wasn't. 'This bill is different from the federal RFRA,' which it wasn't." And they piled it on with intimidation and boycotts. "It was a campaign of lies, but it fooled most of the press," he said.

Sadly, religious freedom's so-called supporters were often its worst enemies by stirring up opposition.

Laycock argue that federal and state RFRAs have not permitted discrimination.

"Nobody has ever won an exemption from a discrimination claim under a RFRA standard," he explained. "Not in 50 years of federal law, not in any of the 32 states that have had the RFRA standard in place." Courts have either said that the RFRA does not apply or that the government has a compelling interest that must be upheld.

RFRA "was meant to be highly protective," he said. "It has been deeply disappointing in practice." The Hobby Lobby win is not typical. "There are few cases in most states and there are fewer wins," he said. And these wins have been noncontroversial cases with little opposition. Churches have usually won in feeding the homeless against objections of neighbors. Muslims and Native Americans have won the right to grow beards and long hair. Amish buggies have been protected. Sabbath observers have sometimes won.

Laycock objects that gay activists are saying "that they are entitled to have personal services available even when the services are entirely unwanted." Thus they are insisting that all marriage counselors agree to counsel gay couples even though "no same-sex couple in its right mind would want to be counseled by a counselor who believes that the couple’s relationship is fundamentally wrong." The only purpose of "such arguments is not to obtain counseling, but to drive conservative believers out of the profession."

He notes that in Washington state, Planned Parenthood spent years trying to find "even one woman who was unable to promptly obtain emergency contraception when she needed it, or when she went as a test shopper and claimed to need it. They never found a single example that stood up in court. But they are still litigating fiercely to require a handful of small pharmacies and individual pharmacists to stock and deliver emergency contraception."

His conclusion: "This litigation is not to solve a problem; it is to drive those pharmacies out of the profession or force them to conform to the plaintiffs’ view of the matter."

"The same logic is applied to every other occupation or profession in any way connected to one of these disputes," he writes. "If you don’t want to do abortions, do not work in obstetrics and gynecology. You should not be permitted to deliver babies unless you are also willing to kill babies on request. If you don’t want to do same-sex weddings, don’t be a wedding planner or a caterer or the owner of a bridal shop, however small."

The argument also applies to religious nonprofits. If they "don’t want to provide contraception, they don’t have to run a hospital, school, or charity. Never mind that churches for centuries have treated education, and care of the sick and the destitute, as part of their missions."

There is even talk of removing the tax exempt status of religious institutions that refuse to recognize same-sex marriage. "If you want to see social conflict," he says, "try stripping the tax exemption from every Catholic institution in the United States, every evangelical institution, every Orthodox Jewish institution, every religious institution in the country that does not do same-sex weddings or recognize same-sex marriages."

Laycock notes that a baker in Colorado refused to do a cake with depictions opposed to gay marriage. Also a printer in Kentucky refused to print brochures for a religiously conservative anti-gay rally. The administrative agency in Colorado supported the baker, as did the judge in Kentucky for the printer. But a florist, who had gay employees and normally served gay customers, lost in court when he refused on religious grounds to provide flowers for a gay wedding.

"We should protect the printer or baker who doesn't want to do any anti-gay messages," Laycock says, but "we should also protect the printer or baker who does not want to do messages that he believes are religiously prohibited."

He does not think we should have exemptions for serving gays and lesbians outside of weddings, nor should there be exemptions for large and impersonal businesses even in the wedding context. "But for very small businesses where the owner has to be involved in providing the services herself, I think we should exempt them from doing same-sex weddings as long as another provider is available."

Laycock admits that these exemptions are very hard to negotiate and are getting harder as our nation becomes more polarized and as the gay rights side believes it can win without compromise. Most early gay rights and marriage equality laws contained exemptions for religious nonprofits, but "those exemptions got narrower as time went on and as the marriage equality side had more votes and less need to make deals."

It is too late to make these deals in blue states, but such deals might be possible on gay rights legislation in red states where church support could make the difference for passage. But the problem is "the Republicans don't want the gay rights laws and the Democrats don't want the exemptions." Gay rights groups have withdrawn their support for the federal gay rights bill because it still contains exemptions for religious institutions.

Laycock holds up Utah as an example of such compromise that outlawed discrimination in employment and housing, while exempting the Boy Scouts and religious institutions. But he notes that gay groups outside the state have condemned the exemptions and Utah Republicans are having second thoughts about the law.

He also notes that "huge monetary liabilities are being imposed on religious objectors who litigate and lose" ($135,000 to a little bakery in Oregon; $800,000 reportedly is being requested from a little flower shop in Washington; $500,000 in damages and a petition for legal fees amounting to $750,000 against the Fort Wayne, Ind., diocese). "You got to be awfully sure of your ground before you litigate with exposure to that kind of risk," he said. On top of that is pressure from consumer boycotts that can put a small shop out of business.

On the other hand, Laycock acknowledges that problems can arise when a religious provider is the only one in a region that can provide the services. Thus a small rural pharmacy should not be allowed to deny contraceptives to customers if it is the only pharmacy available. Likewise, "Catholic hospitals should not seek, and should not be permitted, to acquire local monopolies over women’s health care," he says. "Those who seek to live by their own values should avoid acquiring monopolies that block that same possibility for others."

Firing teachers

I asked Laycock whether he thought Catholic schools would be allowed to fire gay teachers who got married.

"The teacher who enters a same-sex marriage presents the school and the bishop with a hard choice," he acknowledges. "Firing him inflames public opinion and causes people to view the church as hateful, discriminatory, and wholly out of touch. And isn't it better for gay teachers to be in a stable relationship than not? But letting a teacher so publicly flout such a core teaching is a real problem for the church; how can it possibly preserve the teaching in the next generation if the students in its schools see role models who flout it and remain on the payroll?"

Laycock believes that such employees can be terminated if they are considered "ministers" under the 2012 Hosanna-Tabor Evangelical Lutheran Church and School vs. EEOC decision, which gave religious groups complete freedom in the hiring and firing of ministers. "Teachers who teach religion, or lead worship, are ministers for purposes of the ministerial exception," he argues. "Teachers of secular subjects, whose only or principal religious duty is to be good role models, are not." Laycock's interpretation is authoritative since he argued and won the Hosanna-Tabor case before the Supreme Court.

With respect to employees who are not ministers, "a school may still be protected by RFRA or the Title VII exception that allows religious institutions to hire on the basis of religion, and by state RFRAs, state constitutions, and exceptions in state discrimination laws against state-law claims," he says.

Laycock thinks a religious school should be protected when it fires a teacher who enters a same-sex marriage, but there is no guarantee it will be. "Gay teachers have a right to get married, but they should have no right to hold themselves out as representatives of the Catholic church," he argues. "Inside Catholic institutions should be a place where the church's rules control."

"Getting courts to provide that protection is a difficult challenge," he says. "Plainly in some blue states, schools are going to lose on this. Maybe in federal court too." He notes that "both the Cincinnati and Fort Wayne dioceses have lost cases when they fired teachers for in vitro fertilization. That was partly hostile courts and partly bad lawyering, but the hostile courts are very widespread, and good lawyering may not have mattered."

"Many of these claims will be filed under state law, and there will be no federal protection," he says. "The cases will land in state supreme courts, and many blue states will tell the church it has no right to practice its own teachings if any individual is inconvenienced, or offended, on the basis of sexual orientation or sexual identity."

Although Laycock believes that live-and-let-live solutions should be possible for the issues raised by the sexual revolution except abortion, he doesn't see much support for compromise on either side.

"Religious liberty in America is at risk," he concludes. "The fight over sexual morality has greatly endangered and undermined it. Maybe things will calm down after the sexual issues are resolved, and maybe cooler heads will prevail on less emotional issues, or maybe not." If not, being on the losing side of the sexual revolution may endanger religious liberty across the board.