JURIST Guest Columnist Jordan Lorence of Alliance Defending Freedom discusses the benefits of religious freedom to liberty protections …
Listening carefully to objections to state religious freedom laws, two assumptions emerge that are demonstratively false. Those who assert them should weigh their implications carefully and reconsider their opposition to these laws.
The first wrong assumption is that those who oppose religious freedom laws never have conscientious objections to coercive governmental requirements like conservatives do, because they assume government never misuses its power in a way that would create a conflict of conscience for them. The second wrong assumption is that only conservative religious business owners refuse to serve selected customers—that liberal business owners always serve everyone and never have a conscientious conflict with what a customer asks the owner to do.
These religious liberty laws respond to the reality that government asserts itself through coercion of people. Most of the time, citizens have little disagreement with the government forcing people to do certain things or refrain from other behaviors. For example, we all benefit when the police pull over speeders, drunk drivers or those running red lights. But the government can sometimes use its power to compel people to do things that violate their beliefs. Right now, those who oppose the legislation to protect religious liberty in North Carolina and other states fail to remember these laws protect everyone’s individual beliefs and that one day the government could order them to do something that violates their beliefs and they will be glad that the religious freedom law offers them a defense to protect them from government coercion.
And yes, those who consider themselves liberal need protection from government actions forcing them to violate their beliefs too. For example, in the 1960’s many who opposed the Vietnam War did so because of their pacifist religious beliefs that fighting in a war dishonors God’s creation of human beings in His image. The pacifists therefore had a massive conflict of conscience with military draft laws. Congress could have forced the pacifists to serve in the military, but instead Congress passed laws exempting the pacifists from the draft. Congress viewed protecting the pacifists’ right of conscience as so important that it was willing to exempt them, even though it meant that others would have to go to fight in their stead.
Also during this time, a Memphis high school (Tennessee) required all students to take a ROTC course in order to graduate. One student, a religious pacifist, objected to taking the ROTC class. Rather than granting him an exemption, school officials said he could not graduate. He filed a lawsuit, and the US Court of Appeals for the Sixth Circuit ruled that the high school had to allow him to graduate without taking the class. The court ruled in his favor by using the same four-part religious liberty test that is expected to be part of North Carolina’s proposed religious freedom law.
In October 2011 Eastern Michigan University (EMU) argued in court that it had no legal obligation to accommodate the religious convictions of its graduate students. It claimed it could force them to perform any assignment the school deemed necessary and could expel the students if they declined on conscience grounds not to perform the assignment.
Judge Jeffrey Sutton, one of three judges on a panel of the US Court of Appeals for the Sixth Circuit that heard the case, pointed out that he has had law clerks who object on religious grounds to the death penalty and have asked him to excuse them from working on any death penalty cases. Sutton accommodates them, even though it means that the other law clerks shoulder a disproportionate load of work in capital cases. During oral argument, Sutton asked EMU’s attorney if he thought that he should force the law clerks to work on death penalty cases. Of course, the answer is fairly obvious. Sutton is doing the right thing by accommodating the beliefs of his law clerks who oppose the death penalty.
Similarly, in March 2015 the American Pharmacists Association passed [PDF] a resolution urging its members not to sell to the government the drugs needed for lethal injections to execute convicted murderers. The association said that selling drugs used for executions is “fundamentally contrary to the role of pharmacists as providers of health care.” One could imagine a pharmacy board in a state with the death penalty ordering all pharmacists in the state to stock and sell the drugs used in lethal injections or the government would revoke their licenses to dispense drugs. If those pharmacists live in the 20 states with religious freedom laws, they can invoke it as a defense in opposition to the government’s retaliation against them for refusing to sell those drugs.
Sometimes, a customer can create a conflict of conscience for a supporter of same sex marriage, who must, because of his beliefs, deny service to that customer. Antonio Darden runs a hair salon in Santa Fe, New Mexico. Susana Martinez, the Republican governor of New Mexico, used to go to Darden to get her hair styled and dyed. Darden struggled with his beliefs and then finally announced publicly that he could no longer style and dye Martinez’s hair because she believes marriage is the union of one man and one woman. Darden, a supporter of same-sex marriage, could not in good conscience style the hair of a woman who opposed his views, so he told the governor to find another stylist.
Martinez did not sue Darden for discrimination, though she suffered the inconvenience of finding a new hairdresser and changing hair color because Darden would not give her the secret formula for her dye, the Huffington Post reported. It also said that wait staff at Santa Fe restaurants were emboldened by Darden’s stand on principle and were now prepared to deny service to the governor because of her beliefs on marriage.
Martinez was right not to sue Darden for what he did. He has a right not to be compelled by the government to violate his beliefs when plenty of other hairdressers will do the governor’s hair, despite the inconvenience it has caused her. And all North Carolina’s proposed religious freedom law will do, like the similar laws in other states, is to ensure that those who wish to force people of faith to violate their beliefs in the course of doing business don’t have the freedom to do so without a compelling reason. None of these laws give an automatic victory to anyone who invokes religion as the basis for their actions; they allow them to make a defense that the court weighs. These laws do not pick winners or losers in advance; they require the government and the religious adherent to work through a four-part test, or filtering system, to separate the good cases from the bad cases, to determine when the government must accommodate the person’s religious beliefs, and when the government’s interest is so important that it does not have to grant the religious person an exemption from the general requirement.
Without federal and state religious freedom restoration acts, or similar legal protections, the pacifists in the 1960’s likely would have been drafted to fight in Vietnam, the Memphis student may have been forced to attend ROTC training, and Eastern Michigan University probably would have been allowed to violate the faith convictions of its graduate students. But that is far less likely to happen in North Carolina if it joins the 20 other states and the federal government in adopting a religious freedom law.
The debates over state religious freedom laws has devolved into partisan and ideological warfare. But those who oppose these laws should reconsider viewing “religious liberty” as a stronghold of their opponents that they must destroy in an ideological battle. Religious liberty is not an enclave of one’s political enemies. Religious liberty protects every one of us. Because one day, sooner or later, many of us may face government requirements that violate our conscience, and we should all want legal protection on the books that protects our freedom to opt out.
As societies change and grow, conscientious objections will inevitably conflict with governmental requirements. Religious liberty laws protect us all. We denigrate and destroy them at our peril.
Jordan Lorence is senior counsel with Alliance Defending Freedom, which has advised state legislators across the country, including North Carolina, on religious freedom laws and is also defending the religious freedom of many clients in court.
Suggested citation: Jordan Lorence, Everyone benefits from religious liberty protections, JURIST – Professional Commentary, May 7, 2015, http://jurist.org/professional/2015/01/jordan-lorence-religious-freedom.php.
This article was prepared for publication by Marisa Rodrigues, a Staff Editor for JURIST Commentary. Please direct any questions or comments to her at firstname.lastname@example.org
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