Politics & Policy

From Obamacare to Obergefell: The Obama Administration’s Troubled Legacy on Religious Liberty

The White House illuminated in rainbow colors the day of the Obergefell decision, 2015. (Reuters photo: Gary Cameron)
The last eight years have cratered the landscape of religious freedom

For eight years, the Obama administration brought fundamental change to American life. As the administration comes to an end, it is appropriate to evaluate its legacy. And though many such assessments will be written, among the most important issues to consider is the Obama administration’s record on religious liberty. As we’ll argue based on episodes throughout President Obama’s time in office, this administration oversaw an unprecedented effort to intentionally malign and dethrone religious liberty as a central pillar in American political and civil life. Notwithstanding this overall record, and though neither of us is a political supporter of Obama, we applaud the efforts made by the administration in a few areas to champion religious liberty.

In 2008, Obama was a U.S. senator and presidential candidate publicly opposed to same-sex marriage. Much has changed in eight years. For the foreseeable future, the legacy of the Obama administration will rest on two alliterative, colossal initiatives that have left an indelible crater on the landscape of religious liberty: Obamacare and Obergefell v. Hodges.

Defense of Marriage Act

The decision in Obergefell v. Hodges, which established that same-sex couples possess a constitutional right to marry, was the product of the Supreme Court. But the June 2015 ruling could not have been achieved apart from the considerable efforts of the Obama administration. In February 2011, more than four years before Obergefell, Obama instructed Attorney General Eric Holder to cease all efforts to defend Section 3 of the Defense of Marriage Act (DOMA). That legislation was signed into law in 1996 by President Bill Clinton and established two things: As states began to settle the question of same-sex marriage, Section 2 of DOMA guaranteed that no state could be compelled to recognize a same-sex relationship that was “treated as marriage” in another state. Similarly, Section 3 defined marriage, for federal purposes, as “only the legal union of one man and one woman as husband and wife.”

A full year before he publicly declared his support for same-sex marriage, Obama determined that Section 3 of DOMA was unconstitutional and under his direction, the Department of Justice refused to defend the law from challenges. But it did not stop there. In 2013, the administration filed a legal brief in opposition to DOMA in United States v. Windsor. In a 5–4 decision, the Supreme Court held that DOMA’s definition of marriage violated the due -process clause of the Fifth Amendment and was therefore unconstitutional, following the same line of argument presented in the amicus curiae brief from Solicitor General Donald Verrilli, the administration’s chief advocate before the Court. Aware that Windsor cleared the path for same-sex marriage nationwide, President Obama hailed the ruling as a victory for equality and a blow to discrimination (the implication being, of course, that a belief contrary to the Supreme Court’s decision must be based in animus toward gay people). As Justice Antonin Scalia remarked in his dissenting opinion, the ruling of the majority essentially declared “anyone opposed to same-sex marriage an enemy of human decency.” The administration’s decision to abandon DOMA signaled the perilous future for religious freedom in America.

HHS Mandate

Obama signed the Affordable Care Act, subsequently dubbed “Obamacare,” into law in March 2010. During the implementation of the law, the Department of Health and Human Services (HHS) issued a mandate in January 2012 requiring most employer health plans to provide “all FDA-approved forms of contraception” including some that act as abortifacients. Despite being aware of the conscience issues created by such a rule, the HHS mandate allowed only the narrowest of exemptions for certain types of religious employers. The protests of business owners, religious leaders of various faiths, and advocates of freedom fell on deaf ears.

The administration’s unyielding commitment to this HHS mandate revealed its animus toward religious freedom and ultimately resulted in two very consequential and public defeats for the president’s agenda. In Burwell v. Hobby Lobby, the Supreme Court issued a 5–4 ruling against the administration’s attempt to coerce family-owned businesses to provide abortifacients as a part of their employer health plans. In an important, if troublingly narrow, victory for religious liberty, the Court determined in a troublingly narrow decision, on the basis of the federal Religious Freedom Restoration Act (RFRA), that the mandate placed an undue burden on the plaintiff’s religious freedom. This verdict could have been avoided but for the administration’s intolerance and obstinacy.

Even after this ruling, in a demonstration of further hostility, the administration steadfastly refused to grant exceptions to the HHS mandate for moral or religious reasons. In May 2016, the administration was dealt a serious blow when the Supreme Court vacated the Court of Appeals ruling in Zubik v. Burwell, which consolidated six separate cases challenging the mandate. The Court sent the decisions of those six cases back to their respective courts and ordered their reconsideration. Among those seeking relief from the oppressive mandate were the Little Sisters of the Poor, a Roman Catholic religious order dedicated to caring for the elderly poor. After years of bureaucratic and legal strife — to say nothing of the threat of million-dollar fines for conscientious dissent — the administration ultimately acknowledged that this mandate was not the least restrictive means of furthering a government interest in providing contraceptives. Again, an unnecessary outcome. From the start, the administration should have established compromise measures to ensure health coverage for contraceptives without needlessly burdening religious exercise. But such intransigence only proved the larger point. For the Obama administration, whatever the value of religious freedom might be, it could easily be subjugated to a higher, more progressive, ideal.

While the HHS mandate controversy is an intricate policy matter, it is an alarming bellwether of the administration’s approach to freedom of conscience. The Obama administration’s strident support for the mandate and its tight grip on the matter demonstrate how ingrained both contraception and abortion are within progressive orthodoxy — over and against claims of conscience backed by sound philosophical reasoning. This opposition to conscience on abortion was again on display when the White House came out against the Conscience Protection Act, a law designed to prevent the government from taking any adverse action against health-care providers who do not want to participate in abortion.

Obergefell

To say that his legacy is tied to Obergefell is simply to acknowledge President Obama’s own claims in his farewell address. To be clear, supporting same-sex marriage does not necessarily mean opposing religious liberty. But after Obama’s “evolution” on same-sex marriage, the administration took great pains to advance the Sexual Revolution even at the expense of religious freedom, going so far as to submit an amicus brief in Obergefell to cement its support for same-sex marriage. Because religious liberty and gay rights are often framed as a zero-sum game, the administration’s support for Obergefell signaled its lack of concern for religious liberty.

Perhaps the most damning piece of evidence displaying the administration’s callous attitude toward religious freedom and rights of conscience appeared in the Obergefell oral arguments. As Justice Alito questioned Solicitor General Verrilli about the potential consequences for institutions opposed to same-sex marriage, the solicitor general replied: “It’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is­­ it is going to be an issue.” This response did not represent an uncertain answer to an unanticipated question.

The administration knew that the Obergefell ruling would cause conflicts between religious liberty and gay rights — manifested most prominently today in the legal battles between LGBT individuals and commercial actors such as bakers and florists, non-profits, and higher educational institutions with traditional views of marriage — but such conflicts were of little concern to them. The administration was content to depict any religious institution or person holding fast to traditional beliefs on marriage as engaging in invidious forms of discrimination. As a foreboding signal of the problems to arise, each of the dissenting justices in Obergefell specifically highlighted the ways in which the ruling represented an enormous threat to religious liberty. And in the months following the Court’s ruling, the administration made clear that there would be no compromise.

To his credit, President Obama has said that there are people of “goodwill” on both sides of the marriage debate, and he personally has never demeaned religious traditionalists. In his interview with Robin Roberts, expressing his newfound “evolution” on marriage, the president even made a bold overture to those who disagree with same-sex marriage:

I think it’s important to recognize that folks who feel very strongly that marriage should be defined narrowly as between a man and a woman, many of them are not coming at it from a mean-spirited perspective. They’re coming at it because they care about families. And they have a different understanding, in terms of what the word “marriage” should mean. And a bunch of ’em are friends of mine, pastors and people who I deeply respect.

But despite Obama’s call for tolerance and understanding toward citizens whose sincerely held beliefs prevent them from embracing same-sex marriage, the administration attempted to obstruct nearly every defense of conscience rights on this issue. With the wind at their backs and their place on the “right side of history” solidified, the Obama administration opportunistically exploited debates over marriage and sexuality for the sake of political gamesmanship.

For example, when in April 2015 Indiana adopted a state-level RFRA, the administration called it an attempt to “legalize discrimination.” And when Mississippi, Tennessee, and Georgia attempted to pass similar legislation, Press Secretary Josh Earnest called those bills mean-spirited efforts to target and marginalize sexual minorities, despite the fact that as a state senator, Obama had voted for a similar measure in Illinois.

Sexual Orientation and Gender Identity

Today’s conflicts over religious freedom are found at the intersection of religious liberty and efforts to expand non-discrimination law to include sexual orientation and gender identity (SOGI). Progressives have found an ally in these efforts than the Obama administration. And indeed, in every instance of SOGI conflicts, the Obama administration sided with those who wished to stigmatize religious conservatives, assault the identity of religious institutions, and drive traditionalists to the margins of the public square or out of it entirely.

While continuing to pay lip service to religious liberty as an ideal, the administration repeatedly demonstrated its willingness to sacrifice it in favor of sexual progressivism. This willingness is evident in the administration’s strong support for the Equality Act, legislation that would strip away the conscience protections established by the federal RFRA. In addition, the administration’s animus is clear in its support for the Employment Non-Discrimination Act (ENDA), its disregard for the religious-liberty rights of federal contractors, and its rejection of the Russell Amendment, which would preserve religious liberty in federal contracts. In these ways, the administration has used every available mechanism to advance SOGI protections.

To comprehend the breadth of these concerns, consider the Department of Education’s sweeping and deeply offensive attempt to force all public schools to adopt controversial transgender policies related to gender identity. Left to the Obama administration, males who profess a gender identity at odds with their biological sex would be granted access to female restrooms and vice versa. Not only was this effort based on specious interpretations of Title IX, but it included gender identity under the provision’s prohibition on sex discrimination. The move was rightfully met with immense protest as it violates student privacy, undermines parental authority, and treats with hostility the religious conviction that gender is based on biological sex, rather than internal self-understanding.

International Religious Freedom

The Obama administration aided and abetted the undoing of domestic religious liberty to be sure, but internationally, it made positive contributions to religious freedom. In 2014, President Obama nominated David N. Saperstein to be ambassador-at-large for international religious freedom. This was a welcome shift, considering the administration’s prior lack of attention to international religious freedom, evident in the fact that the office of the ambassador was vacant more often than it was occupied prior to Saperstein’s appointment. Since his confirmation Saperstein, a fierce religious-liberty advocate, has led the Office of International Religious Freedom at the State Department and fought tirelessly to counter religious persecution across the globe. Additionally, it should be noted and applauded that in the final weeks of his administration, Obama signed the Frank R. Wolf International Religious Freedom Act into law, a critical step toward elevating religious freedom in America’s foreign policy that commits the federal government to making this issue a significant consideration in foreign engagement.

Hosanna-Tabor and Domestic Efforts

Notwithstanding these laudable contributions to international religious freedom, the Hosanna-Tabor case put to rest any doubts about the Obama administration’s efforts to weaken the place of religious liberty in American life. In 2012, the Supreme Court issued a unanimous ruling affirming that both the free exercise clause and the establishment clause of the Constitution bar the government from contradicting “a church’s determination of who can act as its ministers.” Not only did the administration oppose the decision — a ruling that was a tremendous victory for religious liberty — but it demonstrated remarkable hubris in doing so.

As Ed Whelan noted at NRO, the Justice Department’s opposition to Hosanna-Tabor threatened “to expose churches and other religious institutions to a broad array of employment-discrimination claims that the ministerial-exception has long shielded them from.” In other words, the administration argued that the government should oversee the selection of religious ministers. Such aggression is a complete departure from long-held precedents that consider religious bodies to be self-governing.

Materially different from Hosanna-Tabor but still significant, the Obama administration did side correctly on one important issue related to the religious-establishment debate. In the Town of Greece, New York v. Susan Galloway case, the administration issued an amicus brief in support of the right of municipalities to open their meetings with prayer. This was an important display of respect for the nation’s historic interactions with public displays of religion. Similarly, the Obama administration defended the constitutionality of the National Day of Prayer when a federal court ruled otherwise. The administration also protected religious minorities from workplace discrimination, siding with a Muslim woman before the Supreme Court who was fired for wearing religious attire, and she eventually prevailed.

*   *   *

Religious conservatives are often portrayed as angry aggressors in the culture war. Nothing could be further from the truth, as evident in the case of the Obama administration’s progressive assaults upon religious liberty. The Obama administration determined religious freedom to be a worthy sacrifice on the altar of progressivism. The problem is not that this liberty has ceased to exist nor that liberals see no value in it, but rather that religious liberty has become a cudgel with which to score political points. Once a cherished and bipartisan American value prized in our Constitution, it is now a weapon used in a culture war.

“License to discriminate,” “war on women”— these were talking points, designed to denude religious liberty, which found warm reception in the age of Obama. As writers who caution against hyperbole, we cannot help but conclude that the Obama administration was immensely hostile to religious liberty when judged against history and previous administrations. Yes, the Obama administration paid lip service to religious liberty through proclamations and the obligatory overtures one expects from a president, but the protections traditionally afforded by religious freedom were severely weakened under the president’s stewardship. Whatever one will make of Obama’s legacy, history will support the conclusion that his administration worked to delegitimize the beliefs of millions of Americans of diverse faiths and remove them from within the bounds of acceptable discourse. There are many reasons to applaud President Obama—his decorum, his admirable role as a dedicated husband and father, his personal integrity, his sense of respect for the office of the presidency. But on religious liberty, little appreciation can be proffered.

Andrew T. Walker is the Director of Policy Studies with the Ethics and Religious Liberty Commission. Josh Wester is a Research Assistant with the Ethics and Religious Liberty Commission.

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