The Threat of Overzealous Religious Freedom
Want a real slippery slope that might threaten contraception?
In the wake of the leak of the Alito Dobbs draft, the commentary from a lot of left-leaning legal commentators has been hysterical and focused on slippery slopes- gay marriage is next! Then they will go after contraception! Then interracial marriage and segregated schools. As I have previously written, these threats are highly overblown- Roe and abortion are unique in several ways, and Republicans would have to split their coalition to go after contraception or gay or interracial marriage.
But there is one threat where I have to admit the slippery slope could be real. It was already happening before the Dobbs draft leaked, and it looks like there is a solid conservative majority on the Supreme Court who wants to lead us down the sloope. I am talking about religious freedom.
Most people, myself included, have a gauzy, positive feeling about religious freedom. It’s in the First Amendment, after all- indeed the basic liberal bargain written into the amendment’s text is that while the government will not attempt to compel religious exercise (Establishment Clause), believers will be free to exercise their religion themselves without governmental interference (Free Exercise Clause). That seems like a good thing.
And of course, it is an unambiguously good thing when we are discussing laws that inhibit or compel religious practice. For instance, the government can't force you to swear to God on a Bible in court, because that would be compelling non-Christians to participate in a Christian ceremony.
But the difficult part of religious freedom concerns exemptions from generally applicable laws. For instance, what of the kosher butcher who wants an exemption from a law imposing sanitation requirements on animal slaughter? Traditionally, the law has treaded very lightly in this area, for a number of reasons.
Fundamentally, the central problem with religious exemptions is that they undermine the principle of equality under the law. When government targets a religious belief, the believer is simply asking for that equality- that she be treated the same way as anyone else who believes something different is treated. But when a believer seeks an exemption, he is saying “please continue to enforce the law against everyone else (in fact, you should), but I shouldn’t have to play by the same rules”.
And you can see why this can pose a problem in a society committed to equality. For instance, we have a rule that ambulances do not have to stop at traffic lights when they are carrying someone to the hospital. That’s obviously a sensible exemption to the general rule that everyone stops. But imagine a rule that said that Rolls-Royces did not have to stop at traffic lights, because we assumed that someone rich enough to own a Rolls must be doing something important. That exemption would obviously undermine equality- it would say that certain rich people don’t have to obey the traffic laws that the rest of us have to obey. And further- and this is also important- people, seeking to take advantage of the exemption, would buy themselves Rolls-Royces, even if they had nothing important to do. When you create an exemption that is tied to a category that is not hard to join, people are going to try and join it. In one of my earliest substack pieces, I discussed this point in relation to the “nonbinary” category.
There was a time when religious exemptions were very much a liberal-left project. For one thing, they were often claimed, in a Christian-dominant society, by minority religions and underdog groups. So you had Jehovah’s Witnesses who did not want to salute the flag or Amish parents who did not want to send their kids to public high schools. And during the Vietnam War, when the left (especially the academic left), broadly, did not think highly of the military draft, there was plenty of support on the left for broad religious exemptions from military service, exemptions that were almost certainly taken advantage of by possibly insincere “believers” who wanted to avoid being sent to Vietnam. (Over 170,000 Americans applied for conscientious objector status during the Vietnam War.)
But that Vietnam example underscores something about religious exemptions- they are a great tool for people substantively opposed to a policy. So in the 1960’s, lefty youths had predominantly secular objections to the Vietnam War, but religion was a way to avoid fighting in a war they saw as immoral and did not want to die in. And we have seen this same theme recur recently.
Perhaps influenced by the 1960’s politics he well remembered, conservative Justice Antonin Scalia authored an opinion in Employment Division v. Smith (1990), holding that an American Indian could not receive an exemption to Oregon’s drug laws to ingest a banned psychotropic substance as part of a religious ritual. Scalia ruled that the Free Exercise Clause did not generally grant the right to an exemption from a generally applicable law. Three liberal justices- Harry Blackmun, William Brennan, and Thurgood Marshall, dissented in Smith.
But then, the political script flipped. First, a bipartisan majority in Congress passed the Religious Freedom Restoration Act, motivated by churches and various religious groups who did not like Smith and wanted to obtain legal exemptions. RFRA did not, at the outset, really change the minds of the conservatives on the Supreme Court- they partially invalidated it in a 1997 case, holding it could not apply to state and local governments. But then Congress came back and passed another, narrower religious freedom statute, this time applying to state prisons and land use decisions. Meanwhile, at the state level, 21 states passed their own versions of RFRA.
And then, just like the left realized during the Vietnam War, religious conservative groups slowly realized they had a powerful substantive weapon to undermine liberal legislation. To be clear, First Amendment objections to civil rights laws are nothing new- Professor Herbert Wechsler’s famous article, Toward Neutral Principles of Constitutional Law, which most famously influenced a young Robert Bork, was centered on the notion that civil rights laws raise serious freedom of association issues. However, the courts had little use for Wechsler’s arguments, and arguments that the First Amendment provided a right to discriminate were not taken seriously by the courts. For instance, in 1983, the US Supreme Court ruled 8-1 that Bob Jones University, which practiced racial segregation for ostensibly religious reasons, had to obey the civil rights laws or lose its tax exempt status. The opinion was written by the conservative Chief Justice, Warren Burger.
This time around, though, religious freedom arguments have gained traction. Indeed, they have gained a lot of traction, going far beyond Prof. Wechsler’s concern that some local shopkeeper might be required to let people into his store whom he did not want to do business with. Not only are religious freedom claims being upheld, but large institutions are making them. Thus, Hobby Lobby v. Burwell upheld the right of a large corporation that operates big box crafts stores all over the country, to refuse to insure its employees for contraceptive care. Burwell is truly an implausible case- Hobby Lobby is a private for profit business, not a religious entity, and the objection is not really being made by the corporation but arises out of the personal beliefs of its managers, who are supposed to be legally separate from the entity itself. Further, those personal beliefs, like those of some Vietnam War “religious” draft resisters, were very likely not sincere- Hobby Lobby had until recently provided health insurance to its workers that paid for birth control, and the case bubbled up from the conservative movement as part of a large group of cases attempting to undermine the Obamacare health care law (a major political project of conservatives).
We’ve also seen a bunch of other religious objectors in the area of gay rights. The Masterpiece Cakeshop did not want to bake cakes for same sex weddings, Arlene’s Flowers did not want to provide floral arrangements for them, and the Catholic Church in Philadelphia successfully obtained a legal exemption from Philadelphia’s rules requiring that adoptees be made available to same sex couples just as they are to opposite sex couples. A Kentucky government clerk, Kim Davis, lost her suit seeking the right to refuse to license gay marriages, but it’s remarkable in a sense that she even tried to do this.
Further, the Supreme Court has threatened to bust this door wide open. While many of these cases purport to distinguish Scalia’s Smith opinion (and Scalia himself joined Burwell), several Justices have indicated that they intend to overrule Smith entirely if given the opportunity to do so. Then the floodgates will open and religious conservatives will demand widespread exemptions to generally applicable rules.
And this is what threatens contraceptive rights. No, the Supreme Court is not going to overturn Griswold. But imagine if you go to the doctor and he can refuse to prescribe you birth control pills. Or imagine that you get the prescription, but your local pharmacist exercises a legal right to refuse to fill the prescription. Or imagine if the management of a large HMO or pharmacy chain decides that they are religiously opposed to contraception, or even fakes that belief, seeking to curry favor with conservatives. Suddenly, your HMO won’t facilitate your ability to get contraception in any way, and the local big box pharmacy doesn’t carry contraceptives even if you go to an out of network doctor and pay to get the prescription. You could imagine large regions in the country where, even though the right to use contraceptive is formally protected (Griwsold remains good law), it will require a patient to jump through all sorts of hoops and to expend time and money to obtain contraception. Meanwhile, she has sex with her boyfriend, gets pregnant, and faces a statewide abortion ban, permitted under Dobbs.
And I want to make clear- the sincerity of all of these claims is dubious. That was the real error of Burwell: the blithe assumption that if a group of corporate executives claims that their religion does not permit them to operate a corporation that provides general insurance policies that include contraceptive coverage for the company’s workforce, that these executives must be being sincere. Anyone whose religious beliefs apply at that level of granularity would have surely never joined the corporate world in the first place, as there are probably hundreds of things the company does that come into conflict with those beliefs. And of course, there was substantial evidence in the Burwell case that the executives were in fact insincere.
But if your goal isn’t protecting religious freedom, but poking holes in statutes you don’t like, you don’t care about sincerity, any more than anyone on the left cared that people were falsely claiming religious belief to get out of military service in Vietnam. A version of religious freedom that allows willy-nilly exemptions from generally applicable law based on claims of dubious sincerity, is a society that can’t impose national standards at all. That, of course, is the point.