Stop Accusing Religious Conservatives of ‘Using’ Religion
Raphael A. Friedman
Identifying proper boundaries for religious liberty in American public life continues to be a hot-button issue. Stories of friction between religious groups and other members of society have pervaded the headlines, and such conflicts aren’t going away anytime soon.
Over the last few years, the Supreme Court has ruled on a number of cases in which religious liberty claims clashed with other rights. Suits have challenged laws involving public health during the pandemic, several anti-discrimination laws protecting LGBT rights, and laws designed to ensure access to contraceptive care. The list is likely to grow.
These conflicts are deeply personal and arouse fiery passion on all sides. And, as with all emotionally charged debate, the rhetoric we use matters – a lot.
A number of phrases commonly used to characterize certain religious liberty claims only harm the debate. Here, I do not judge the merits of any legal argument. Instead, I identify terminology frequently aimed at religious conservatives which should be retired. The terms are usually inaccurate, hurtful, and unnecessarily polarizing. Moreover, they often muddle what is at the core of the legal issue.
There are obvious examples, like the label of “bigot” sometimes branded on religious conservatives who embrace particular viewpoints. Then, there are the more subtle examples. A common one is the phrase “using religion to (fill in the blank).” For example, the American Civil Liberties Union’s website features a page with the title: “End the Use Of Religion to Discriminate,” followed by a list of legal issues where religious freedom claims arise.
If one says they “feel used,” they are suggesting that someone feigned allegiance to them for their own selfish benefit. That is not usually the case when it comes to religious observance. It’s one thing to call the dictates of a religion immoral, or to suggest the person is misunderstanding the teachings of their religion. But to accuse someone of merely “using” their religion is quite another.
A majority of the Supreme Court highlighted this point when they condemned statements made by a member of the Colorado Civil Rights Commission during a hearing involving complaints levied against a devout Christian baker. Jack Phillips, a bakeshop owner, refused to bake a wedding cake for a same-sex couple because he said it would be “a personal endorsement and participation in the ceremony,” which he opposed on religious grounds. One commissioner told Mr. Phillips that “it is one of the most despicable pieces of rhetoric” when people “use their religion to hurt others.” The Court said the statements, in suggesting that Phillips was “insincere,” displayed “clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”
It is beyond doubt that Mr. Phillips’s beliefs are deeply insulting to the LGBT community and that his actions “hurt others.” But he was not “using” his religion. As the Court noted, rather than looking for an excuse to hurt people, he was doing his best to adhere to his “sincere religious beliefs.”
In addition to adding polarizing fuel to an already raging fire, the commissioner’s statements did a disservice to the resolution of a pressing legal dispute. The legal question that should have been the sole focus of the Commission’s hearing was whether Mr. Phillips was allowed to flout a Colorado law which prohibits discrimination on the basis of sexual orientation. The Constitution forbids the government from enacting laws which prohibit the free exercise of religion. On the other hand, anti-discrimination laws cannot fulfill their purpose if religious storeowners are exempted. Plus, the scope of protection afforded to religious practice by the Free Exercise Clause has long been debated at the Court.
Instead of just tackling the legal questions which lie at the heart of the case, the commissioner personally attacked Mr. Phillips, distracting from meaningful consideration of the litigants’ claims. And as a result, we were left with a Supreme Court decision that largely skirted the pressing question of whether antidiscrimination laws must accommodate religious opposition to same-sex marriage.
Phrases like “using religion” presuppose that the religious belief in question is merely a disingenuous guise for insidious hate, when usually this is inaccurate. Moreover, the more these phrases are used, the harder it will be to reach resolutions.
Certainly, some religious justifications for activities which harm others are pretextual. However, determining the authenticity of another person’s belief is very difficult, if not impossible. Consequently, judges and litigants on the other side should, at the very least, be open to the possibility that a religious party is acting in good faith.
The Colorado commissioner also referenced religious justifications which were used to promote slavery and the Holocaust. Disturbingly, two dissenting justices on the Supreme Court refused to join their colleagues in condemning the comparison. Many legal scholars jumped to defend the commissioner, arguing that her historical observations were “undeniably true.”
However, the accuracy of the commissioner’s statements was never in question. Her statements evidence hostility toward religion because they suggest that Mr. Phillips’s beliefs share the insincerity and reprehensibility akin to the beliefs of slave owners and Nazis. The statements were not said in the abstract; they were directed at Mr. Phillips. Context matters, especially when words like “slavery” and the “Holocaust” are bandied about.
It is somewhat curious that some of the same legal scholars, usually champions of sensitivity and inclusivity, were quick to marshal a variety of creative interpretations and linguistic maneuvering to defend the commissioner’s statements.
The intuition to treat some religious liberty claims with disdain is likely motivated by a virtuous empathy for those who are hurt by such claims. While understandable, the urge to demonize religious adherents should be resisted. Name calling and labeling never resolve conflict. Besides, the damning of religious conservatives is usually wrong. Here’s why.
Nuns who oppose contraception or abortion do not hate women. Church or synagogue goers who oppose harsh COVID-19 restrictions on their houses of worship are not apathetic toward public health. Jack Phillips did not hate the couple who requested the cake.
There is a subtle but fundamental difference between the motivation for a behavior and its effect. Opposition to abortion, contraception, or same-sex marriage is not (necessarily) rooted in prejudice against women or gay people, despite the fact that they are undoubtedly the ones most affected by it.
I appreciate that the inextricable link between gender and reproductive decisions, as well as the obvious link between homosexuality and same-sex marriage, makes parsing discriminatory intent from discriminatory effect difficult. Still, if parties on the opposite side of conservative religious beliefs acknowledge that distinction, religious parties will be better understood. This will improve rhetoric and allow the legal questions these cases present to take the stage without distraction.
None of this means that the religious beliefs are correct. Nor does it mean that the law should grant religious exemptions that interfere with others’ rights. But the debate must be reframed, so that it is less demeaning and more tolerant of deeply held religious beliefs, even when they collide with other rights.
Similarly troubling rhetoric also appears in the political arena. In an undeniably poignant and stirring plea on the House floor, New York representative Alexandria Ocasio-Cortez denounced religious exemptions to laws which promote access to healthcare. Amidst the eloquence and depth of conviction that permeated her address, however, was language that echoed the sentiment of the Colorado commissioner.
Consider her claim that “the only time religious freedom is invoked is in the name of bigotry.” A quick Google search belies that assertion. The history of religious liberty jurisprudence is replete with cases in which the religious parties were the ones who were victims of bigotry. But even if we extend Ms. Ocasio-Cortez the benefit of poetic license, her underlying point is misguided for all the reasons stated above.
Issues surrounding conservative religious beliefs will continue to sit front and center in courts of law and in the court of public opinion. We will do better if certain tropes are dropped from the conversation. ♦
Raphael A. Friedman is a recent graduate of New York University School of Law and has written on the Free Exercise Clause, juvenile sentencing, and the intersection of tort and administrative law.
Friedman, Raphael A. “Stop Accusing Religious Conservatives of ‘Using’ Religion.” Canopy Forum, June 9, 2021. https://canopyforum.org/2021/06/09/stop-accusing-religious-conservatives-of-using-religion/.