Stanley Carlson-Thies

March 3, 2016

The Education Fund of The Leadership Conference on Civil and Human Rights released on February 1, 2016, a report disparaging efforts to uphold religious freedom while LGBT equality advances as simply another chapter in the sad history of religious opposition to “the abolition of slavery, women’s suffrage and equality, racial integration, inter-racial marriage, immigration, the Americans with Disabilities Act, and the right to collectively bargain”(that’s from the press release). But the report gives a distorted history and it is not a constructive contribution to the challenge of our day to devise a legal framework in which people and organizations with differing views on human sexuality can live together while vigorously yet respectfully contending with each other about the values and convictions that are good and right.

The report is called Striking a Balance: Advancing Civil and Human Rights While Preserving Religious Liberty. The subtitle already gives away the report’s negative framing of religious freedom. Religious freedom, of course, is itself a fundamental civil and human right—a primary US constitutional value and a strongly acknowledged right in international human rights treaties.

The report does acknowledge that “throughout American history, religion has animated—and people of faith have helped to lead—social justice movements designed to advance the common good and bring America’s lived reality more in line with its stated ideas.” It then reviews various unfortunate instances in our past and present when some people of faith have defended destructive and harmful policies, from slavery and immigrant-bashing to discrimination against women, and more.

Are contemporary efforts to protect the freedom of faith-based organizations to maintain a morally conservative stance on human sexuality and relationships akin to those slaveholders who claimed that the Bible justifies slavery? The report makes much of the alleged harms suffered by third parties when that freedom is protected, allowing businesses to refuse to include all contraceptives in their health plans, religious schools to fire employees who violate the conduct code, pharmacies not to stock emergency contraceptives. But the reality is not so simple: The generosity and design of health insurance in fact is one of the employee benefits that differentiates workplaces, and millions of employees not working for Hobby Lobby have no guaranteed access to contraceptives because their companies’health plans are exempt from the requirement for one or another secular reason. There are many kinds of conduct-code violations that can lead to termination, even from secular companies. And that pharmacy? The Washington State regulation allowed multiple secular reasons not to stock drugs, and no one has been able to identify a person who could not readily find an alternate supplier.

“One person’s religious liberty does not give them the right to harm another person or impose their religious beliefs or practices on someone else,”says the report. But it is a vastly over-inflated concept of “harm”and of “imposition”that the report has in mind. The pharmacy cannot make emergency contraceptives illegal nor keep a customer from going around the corner to find them at another store. An educator who does not agree with the religious and moral beliefs of a religious school should find a different employer. Is it a great harm to need to pick and choose between employers with different views and policies? Hobby Lobby controls no legislative body and has not even hinted that it seeks to ban contraceptives from the land.

What the report terms harms and conjures up as impositions are rather just the practical outcomes of diverse workplaces and varied institutions. Yes, they may be costs, but they are the costs of genuine diversity. Eliminating those costs requires eliminating the diversity—squelching the religious differences reflected in those different institutions with their different policies.

To do that would not be to “strike a balance”but rather to narrow religious freedom into protection just for talk and thought, no longer protection for religious exercise and religious organizations. That is not the way to balance the rights of those who follow a faith-informed conservative morality with the rights of those who follow a progressive morality.