On Thursday, the Department of Health and Human Services announced the creation of a new division within its Office of Civil Rights — the Conscience and Religious Freedom Division. This law-enforcement agency will enforce the myriad of federal laws that protect religious liberty and rights of conscience.
The Left’s response was as predictable as it was swift. Louise Melling, the deputy legal director for the American Civil Liberties Union, intoned:
Religious liberty doesn’t include a right to be exempt from laws protecting our health or barring discrimination. It doesn’t mean a right to refuse to transport a patient in need because she had an abortion. It doesn’t mean refusing care to a patient because she is transgender. Medical standards, not religious belief, should guide medical care. Denying patients health care is not liberty. Choosing your patients based on their gender or gender expression is not freedom. Should the administration choose to move forward to implement a discriminatory policy, we will see them in court.
Melling’s threat of litigation is no idle one: Over the last year, the ACLU has filed numerous lawsuits attacking religious accommodations, including challenges to the Trump administration’s religious exemption to the birth-control mandate of Obamacare; the federal government’s grant to the United States Conference of Catholic Bishops to provide care for unaccompanied minors through Catholic Charities; and a Michigan state law that allows foster and adoption agencies the right to make child-placement decisions consistent with their religious beliefs.
Underlying these cases is a common thread — and one that threatens the future of religious liberty in this country. In all three cases, the ACLU proffers, as axiomatic, that religious accommodations that burden third parties violate the establishment clause of the First Amendment. The ACLU argues that the Obamacare-mandate exemption and the grant to the USCCB violate the First Amendment because girls or women who wish to obtain free birth control are burdened. Similarly, the ACLU claims, a law protecting faith-based adoption agencies is unconstitutional because it impacts unmarried individuals or homosexual couples who wish to adopt — even though they may adopt by working with other agencies instead.
The ACLU is wrong: While the Supreme Court has long noted that accommodations can go too far, transforming the government from a protector of religious liberty to an enforcer of religious dogma, the sweeping assertion that accommodations that burden third parties violate the establishment clause simply does not hold true.
To argue otherwise, the ACLU and others seize language from the Supreme Court case of Estate of Thornton v. Caldor (1985). In Caldor, the Court struck a Connecticut law designed to accommodate religious believers by requiring employers to provide a Sabbath day off. But the statute gave employees the right to declare any day of the week their Sabbath and forced the employer to honor the scheduling request.
Legal protections of religious liberty since the 1990s have largely been defensive measures to allow persons and institutions of faith to protect themselves from the burdens created by an ever-expanding government.
Connecticut’s Sabbath law violated the establishment clause, Chief Justice Warren E. Burger wrote, because it provided employees “an absolute and unqualified right” to a day off, “no matter what burden or inconvenience this imposes on the employer or fellow workers,” and that “this unyielding weighting in favor of Sabbath observers over all other interests contravenes a fundamental principle of the Religion Clauses.”
From Caldor comes the claim that religious accommodations that impact third parties are constitutionally infirm. Not so. Caldor’s reference to third-party interests cannot be divorced from the nature of the legislation at issue in that case, which was unique in two ways. First, the statute in question was a Sabbath law — striking to the heart of the establishment clause. Second, the Connecticut legislature had gratuitously interjected itself into the relationship between private employers and employees to favor religious practice. In other words, the state had affirmatively acted to promote religion at the expense of employers and other employees.
In contrast, legal protections of religious liberty since the 1990s have largely been defensive measures — in the form of balancing frameworks, accommodations, or exemptions — to allow persons and institutions of faith to protect themselves from the ever-growing burdens created by an ever-expanding government. Absent a government-imposed mandate, no accommodation would be needed.
Since the government created the onus on religion in the first place, eliminating that burden does not favor religion but rather represents, in the words of the Supreme Court, “benevolent neutrality” — something entirely consistent with the establishment clause. Such benevolence has passed constitutional muster in a broad range of circumstances, from the religious accommodations granted in Title VII’s anti-discrimination law to state property-tax exemptions for churches and houses of worship, regardless of whether such measures affect third parties.
Throughout its history, the United States has long offered a variety of accommodations to protect citizens’ rights of conscience from the burdens imposed by otherwise just laws. Respect for the diverse tapestry of religious and non-religious beliefs and practices our country so richly enjoys is best achieved when the legislative branch crafts a compromise to protect both sincerely held religious beliefs and the compelling governmental interests at stake — something not possible if the establishment clause is stretched as the ACLU and others suggest.
The courts should reject attempts to further unmoor the establishment clause from its historical foundation and thereby render religious liberty an anachronism. And the media should challenge the ACLU’s narrative that religious liberty is discrimination.