Since before Trump, religious conservatives in this country have been developing a doctrine that the Constitution’s guarantee of freedom of religion allows them to refuse to comply with laws that are against their religion. On this basis religious people claim the right to refuse to participate in legal abortions, for example, but also to refuse to provide other services such as birth control. Hotel owners and restaurateurs reserve the right to refuse service to LGBTQ persons if such behavior is against their religion.
The Supreme Court in recent years has supported the religiously-based right to refuse to provide birth control as part of a health plan available to employees. The Trump administration has been supportive, but a federal judge recently ruled that the Department of Health and Human Services regulation supporting such “religious freedom” is actually unconstitutional. The administration will certainly appeal.
What’s novel about this new approach by religious conservatives is that it seeks to justify their refusal to recognize rights to which they object.
The constitutional basis for this position is of course the First Amendment, which reads in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Thus it is argued that there can be no legal constraints on religious beliefs or behavior. Seems reasonable, right?
Let’s look at the historical context. It was actually normal in the British colonies for each colony to have an established church. Sometimes this was an arm of the established Church of England (Virginia, South Carolina), or one or another Puritan denomination (Massachusetts, Connecticut). Maryland was founded to provide shelter to Catholics. Rhode Island, North Carolina and Pennsylvania were established with official freedom of worship (i.e., no established church). So when the framers adopted the First Amendment, they were particularly concerned that the new federal government not impose any religion on states that already had their own established religious order—or not, as the case may be.
The amendment has normally been interpreted to guarantee to adherents of any religion the right to worship as they saw fit without interference from state authorities or from other religious groups. From the beginning this guarantee applied not only to Protestant Christians, but to Catholics and to Jews. But it has never been absolute: the Mormons of Utah had to outlaw polygamy as a condition of entering the Union, and freedom for more exotic (to Americans) religions such as Hinduism, Buddhism or Islam is of fairly recent vintage. Freedom of religion was the right to be left alone, with the corollary that each religious group should also leave others alone.
What’s novel about this new approach by religious conservatives is that it seeks to justify their refusal to recognize rights to which they object. Even though use of birth control is legal, people who think it’s against God’s law assert the right under the First Amendment not to provide such a service. Even though discrimination in public accommodations like restaurants or hotels is illegal, people who object to homosexual conduct assert the right to refuse to serve such people. If that right to refuse service is recognized, we can see a smooth path toward denying such service to African Americans, Latinos, women or others supposedly protected by law.
What is presented as freedom of religion, then, turns out to be an agenda for positing the tenets of conservative Christianity as uniquely deserving government protection and support. The agenda is to make conservative Christianity our established church.