The Goods of Religious Liberty
In the United States, we have a strong tradition of religious liberty. Our Founders, for example, repeatedly stressed the value of allowing all peaceable persons to carry out their religious duty, and our legal system has long maintained accommodations to that effect. Articulating this tradition of religious liberty, the U.S. Supreme Court noted, in a 1989 case, that “[g]overnment policies of accommodation, acknowledgement, and support for religion are an accepted part of our political and cultural heritage.”
But, one might ask, what is the purpose of religious liberty? What good does it do for a society to respect it?
Well, the goods of religious liberty are many and they are great. They include, among others, (1) the basic good of allowing individuals and communities to live in accord with their most deeply held beliefs, (2) the promotion of mediating institutions which form good citizens and serve as a bulwark against excessive government authority, and (3) pluralism in academia, business, and other sectors of society.
On the first point: Religious and conscientious beliefs are the deepest convictions a person can have. They might be rooted in revelation or a religious experience, in a particular religious tradition of which one is a part, or simply in a lifetime of acquired wisdom. In every case, however, we feel that these convictions are so compelling that we see a basic goodness in conforming ourselves to them. This is why, even when we disagree with another person’s convictions, we praise them for sticking to their beliefs.
Because we recognize the good in following our deepest convictions, the government should protect, not inhibit, our ability to obey them. Obviously, this is not universal—our government should not allow people to engage in human sacrifice simply because they are deeply convicted to do so—but allowing people to obey their religious convictions, so long as it does not harm others or inhibit legitimate government action, is generally a benefit to us all.
On the second point: Freedom and the pursuit of happiness require limited government, but restraining government entails more than a personal aversion to excessive state authority. It also requires that we, as larger communities, form and maintain distinct institutions that mediate between the individual and the society as a whole. These institutions—schools, churches, professional associations, local clubs—form what we call “civil society.”
These mediating institutions protect against government encroachment upon our lives in two ways. First, they fulfill necessary functions—education, social support, community organizing, inculcation of virtue—that would otherwise be done less efficiently by government. When these more specialized and more accountable institutions fulfill these functions, the government remains in a supportive role. Second, these institutions serve as loci of authority outside of the government, reminding us of our rights and responsibilities as self-governing people.
Religious liberty is an ideal tool for the promotion of these mediating institutions because religious institutions are the ideal kind of mediating institution. Churches, for example, fulfill many of the aforementioned functions, particularly the formation of virtue. Religious schools educate the young, often outperforming their government-operated counterparts. Religious adoption agencies place children in loving homes. Religious professional networks exist to bring people together in a way that government simply cannot.
On the third point: Pluralism—the idea that we benefit from having a reasonable diversity of viewpoints or services available in certain sectors of our society—is premised upon the notion that we should allow a variety of beliefs to flourish in our society, so long as those beliefs are not hostile to liberty or good government. And we certainly do benefit from pluralism. In academia, for instance, new truths are uncovered and old truths reinforced by a continual exchange of ideas between different intellectual traditions. Religious intellectual traditions and, more specifically, religious universities, are and always have been a prominent part of that academic conversation. Similarly, in business, we as consumers benefit from having a diversity of services available for our choosing. If I am planning a wedding ceremony, for example, I might appreciate wedding services provided by persons of a similar religious background.
Religious liberty, then, fosters a pluralism that benefits all of us, not just the few members of a particular religious sect. We all learn more from a diverse academic discourse than we do from a singe-viewpoint echo chamber, and we would all prefer to have multiple options when we shop for goods and services.
Religious Liberty Under Threat
Despite the apparent benefits of broad protections for the free exercise of religion, and despite the Founders’ enthusiastic support for such protections, religious liberty has come under assault in modern American politics. Our public opinion has shifted from one which embraces free religious practice to one which is openly hostile to people of faith.
This modern hostility towards religious liberty is evident in our public discourse, our laws, and our courts. To see it in our public discourse, simply look at how people talk about legislative measures designed to protect religious practice. I.e., RFRAs or FADAs. Despite their good intentions—and despite there being no evidence to support the claim that these laws would result in material harm against any group of people—these laws are branded as “licenses to discriminate,” “hate laws,” and “anti-LGBT.”
To see it in our laws, look to places like California and Washington. Recently, in California, State Senate Bill 1146 attempted to remove private religious universities’ ability to make personnel, admissions, and housing decisions based on their religious convictions. And in Washington, the State Pharmacy Commission adopted a new rule in 2005 that barred religious persons from citing a conscientious objection as a reason for opting not to sell the morning-after pill (more on this below).
But, at the end of the day, our public discourse can be corrected through persuasive arguments and our laws can be rewritten. The greatest danger really lies in court edicts and judicial opinions, because they have in modern jurisprudence taken on an air of finality. Decisions that are hostile to religious beliefs, therefore, can be a significant setback to the cause of liberty and conscience.
The decisions in Stormans v. Wiesman and Barber v. Bryant are two such cases.
Stormans v. Wiesman
Stormans v. Wiesman centers on a family-owned pharmacy—Ralph’s Thriftway—operated by the Stormans family in Olympia, Washington. Throughout their 60 years in the pharmacy business, the Storman family has referred customers seeking abortifacient drugs to other nearby pharmacies. This allowed the Stormans to maintain their beliefs about life, while at the same time guaranteeing that their customers were able to acquire the desired products.
In 2005, however, under pressure from abortion activists and the State’s governor, the Washington State Pharmacy Commission adopted a new regulation requiring pharmacies to sell abortifacient drugs in violation of their religious beliefs. The new regulation still allows exceptions for reasons including business, economic, and convenience concerns. It simply singles out religious and conscientious reasons, even though ten times as many pharmacies refused to sell the morning-after pill for reasons of profit than reasons of conscience. It was patently clear that the reason for the new regulation was not to increase women’s access to these drugs, but to target and harass religious pharmacists.
Because of this, the Stormans claimed in court that the state unjustifiably, discriminatorily, and intentionally overburdened their free exercise of religion. The District Court agreed with them, holding that the new rule was “designed… to force religious objectors to dispense [abortifacient drugs]” and telling the State to carve out an exception for conscience claims.
The Ninth Circuit Court, however, reversed the District Court’s ruling and sided with the State. It determined that, despite the regulation’s disproportionate effect on religious persons, the Stormans must provide abortifacient drugs in violation of their religious beliefs because the regulation is “neutral and generally applicable.” The Court essentially disputed the claim that the rule was intentionally targeting religious pharmacists.
The Stormans appealed to the Supreme Court, which in June declined to hear their case, thereby maintaining the decision of the Ninth Circuit Court. These decisions by the Ninth Circuit and the Supreme Court result in considerable harms to religious persons specifically and society more broadly.
First, the actions of the State in this case are insidious. At heart, the government was not actually trying to increase patient safety. Rather, they were trying to harass religious pharmacists out of business. We know this because, one, there was no widespread problem of women failing to procure abortifacient drugs before the rule was implemented, and, two, the rule maintained exceptions for many reasons other than conscience claims. The effect of the rule, therefore, is largely to denigrate certain religious views and make it more difficult for people who hold those views to participate in the market. This fact was the basis of the District Court’s decision favoring the Stormans, and it is what makes the regulation constitutionally dubious.
Second, even if the State’s “interest” in ensuring easy access to abortifacient drugs were compelling—and even if the State felt that this interest outweighed any religious liberty claims—this particular policy wouldn’t be the ideal way to accomplish it. For truly religious people, like the Stormans, obeying one’s conscience is more important than financial profit. So, faced with the choice between complying with the regulation or shutting down their pharmacy, the Stormans and other like-minded pharmacists may actually choose to shut down their pharmacy, thereby decreasing access to all of the other drugs that they actually were selling.
Third, the State’s regulation and the Courts’ decisions are contrary to the goods of religious liberty we discussed above. The Washington rule prevents the Stormans from living in accord with their deepest convictions. And, by shutting down religious pharmacies, it hinders the diversity of services that we should value in the marketplace.
Washington State was wrong in implementing this rule, and the courts’ decisions were constitutionally questionable at the very least. As Justice Samuel Alito ’72 warned in his dissent, “If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern…”
Barber v. Bryant
The case of Barber v. Bryant was a test of Mississippi’s House Bill 1523, the Protecting Freedom of Conscience from Government Discrimination Act. The law was significant in that it was the first in the country to guarantee religious freedom in the wake of last year’s erroneous Obergefell decision. HB 1523 was narrowly tailored to protect traditional beliefs about marriage and gender.
In late June, District Court Judge Carlton Reeves struck down the law in its entirety. He argued that the law violated religious neutrality by favoring a certain view of marriage and that it violated the equal protection doctrine by protecting only that particular view. Judge Reeves’s decision was, like the Stormans decision, flawed for a number of reasons.
First, his two arguments essentially boil down to saying that the law is discriminatory. It’s perplexing, though, how a law can be discriminatory when it is explicitly designed to protect a group of people from discrimination.
Second, his claim that the law violates some principle of neutrality ignores the purpose of a narrowly tailored law. Narrowly tailored religious liberty laws are specific because they always side in favor of religious liberty. Consequently, we don’t want the law to be too broad because that would hinder the government’s ability to exercise its authority in cases where it actually is justified in limiting religious liberty. So, we limit the law’s coverage to beliefs that have been or will be disproportionately subject to discrimination.
Third, the decision also struck down the part of the law which guaranteed religious liberty protections for churches themselves. In striking down the entire law, Reeves has said that churches do not deserve special protection for their deeply held religious beliefs, and that the government may influence a church to alter its policies in violation of those beliefs. But if religious liberty doesn’t protect what goes on inside the four walls of a chapel, then what does it protect?
Finally, like the Stormans decision, the Barber v. Bryant decision ignores the goods of religious liberty. In striking down the law, Reeves has potentially prevented good-hearted Mississippians from living in accord with their deepest convictions. Furthermore, he has put at risk the many religious organizations which have contributed so much to Mississippi’s academic, social, and business sectors.
Rather than let the law stand—a decision which would have done no harm to those who disagree with the convictions protected in the law—Reeves piggybacked on the Supreme Court’s activist decision in Obergefell and sided against liberty.
Religious liberty is more than smart policy. It is a constitutional right that allows individuals and communities to flourish according to their own convictions. We do ourselves a great harm by ignoring this in decisions like the Stormans and Barber cases. Rather than turn our backs on the proud American tradition of religious liberty, we should learn once again to embrace free religious practice and appreciate the good that it does for our society.