But well-funded, right-wing religious legal advocacy groups have promoted a very different and quite false concept of religious freedom. To distinguish it from the idea it traduces, I will call it “religious liberty” here. It has little to do with the traditional idea that all people should be free to worship or not worship without interference or coercion from law or government. It is instead the idea that (certain) religious groups and perspectives have a right to trump those civil laws of which they disapprove on religious grounds. The idea is invariably accompanied with either implicit or explicit favoring of certain religious groups and perspectives over others, and it involves granting special privileges, and indeed public funds, to such favored groups.
A recurring target of the religious refusal complex that has arisen on the back of this conception of “religious liberty” is the health-care industry. In January 2018, the Trump administration established the Division of Conscience and Religious Freedom in the Office for Civil Rights at the U.S. Department of Health and Human Services. From the name of the new unit, a visitor from outer space might have supposed that the purpose of the office was to guarantee the rights of health-care patients to enjoy equal care and respect, without regard to their religion or other matters of conscience. But the actual mission of the office was not to ensure that patients get care but that providers may deprive them of it when it suits those providers’ religious beliefs.
Under the leadership of Roger Severino, a trial attorney with a history of right-wing legal activism, the office first focused its efforts on making it easier for providers to abstain from caring directly for women in need of certain reproductive health services as well as LGBT Americans. Then on May 2, 2019, after declaring a National Day of Prayer, President Donald Trump proudly broadened the unit’s mandate to cover essentially all health-care industry workers and all services that receive federal funds. Announcing a new rule, called Protecting Statutory Conscience Rights in Health Care, Trump signaled that all health-care industry personnel, from physicians and nursing staff to receptionists, ambulance drivers, and schedulers, would be permitted to refuse to serve or treat patients if doing so offends their personal “religious beliefs or moral convictions.”
Under the new scheme, the religious beliefs or moral convictions of patients did not count for much—as Nicole Arteaga, a first-grade teacher in Peoria, Arizona, learned the hard way. In June 2018, at the 10-week mark of a much-wanted pregnancy, Arteaga was informed by her doctor that her fetus had no heartbeat. At the doctor’s suggestion, Arteaga decided to take misoprostol, a drug that anti-abortion activists call an “abortifacient,” rather than risk a medically unmanaged miscarriage or undergo an invasive and expensive surgery. When she went to her local Walgreens to pick up this medication, however, the pharmacist refused to fill the prescription on the grounds of his own “ethical beliefs.”
“I left in tears, ashamed and feeling humiliated by a man who knows nothing of my struggles but feels it is his right to deny medication prescribed to me by my doctor,” Arteaga wrote on her Facebook page.
Arteaga was eventually able to fill her prescription at another pharmacy. So, the defenders of this form of privilege may say that no harm was done. But this is quite false. The humiliation Arteaga experienced was precisely the point of this bullying exercise in religious privilege. The pharmacist took advantage of an opportunity to announce, in public, that the U.S. government gives him the right to single out individuals who offend a certain set of religious beliefs, to discriminate against them, and to publicly shame them.
State legislatures have gotten in on the action, too, with a new wave of “religious refusal” bills that would allow broad religious exemptions, many of them tucked into bills intended to allow churches to hold in-person services during a pandemic. And it is not just institutions but also individuals who aim to have the “religious freedom” to revise or deny services and equal treatment to others on grounds of their own religious conscience. It allows them, like the pharmacist who denied to fill Arteaga’s prescription, to grandstand over what they see as principle. But this kind of “liberty” is really just a form of religious privilege. This new religious right—a license to discriminate—has become one of the chief talking points of leaders of the Christian nationalist movement, which ties the idea of America to specific religious and cultural identities. And it acts as a kind of partisan appeal to conservative religious voters across the board.
There are many factors that led to this perversion of the idea of religious liberty, but a watershed moment occurred in 2009 when, following over a decade of discussions, high-level operatives on both the conservative Catholic and the conservative Protestant side agreed that taking on the common enemy is far more important than continuing a centuries-old theological feud and signed the Manhattan Declaration: A Call of Christian Conscience. The document was endorsed by a powerful roster of pastors, prelates, and religious scholars and leaders, forging the compact that was an essential precondition for the significance of Christian nationalism in the current political culture.
By then, the groundwork for the new jurisprudence for entrenching religious privilege had, in fact, been a long time in the making. It was laid in a series of Supreme Court cases whose implications were far better understood by the right than the left. Leading lights of the rising conservative legal movement, such as Jay Sekulow, had adopted a curious line of argument in Establishment Clause cases. Sekulow, a Messianic Jew who later served as one of President Trump’s personal attorneys, made his name by arguing cases before the Supreme Court that would help overturn the central tenets of the reigning judicial consensus on religion in public schools and elsewhere. In most such cases, there is a distinction between the First Amendment right to the free exercise of religion, such as a public school teacher’s personal right to pray, and the First Amendment prohibition on establishment of religion, such as an attempt by that public school teacher to lead students in prayer during class.
Rather than invoke the Free Exercise Clause, however, Sekulow and his allies suddenly began to appeal to the Free Speech Clause of the First Amendment. In an argument that became the tip of the legal spear aimed at the Establishment Clause, they asserted that religion is just speech from a certain religious point of view. And to prohibit speech on the basis of viewpoint is, by definition, to violate the Free Speech Clause.
As an interpretation of the text of the Constitution, whether in any “originalist” sense or not, this is as coherent as mashed potatoes. The Constitution unambiguously gives distinct meanings to the terms “speech” and “religion”—for why else would the First Amendment take the trouble to guarantee the freedom of religion and then in virtually the same breath add a separate guarantee of the freedom of speech? Religion is subject to two competing clauses, anti-establishment and free exercise, precisely because it is a category of activity distinct from speech. Our tax code reflects this fact because it offers exemptions and benefits to religious groups that it does not extend to nonreligious “speaking” groups.
As far as the legal advocates of the Christian right are concerned, making a hash of the First Amendment is largely the point. The Framers clearly understood that we are free to exercise religion because the state refrains from establishing religion. But there is no such balance required nor supplied concerning the very different category of speech. If religion is characterized as just “speech from a religious point of view,” as representatives of the conservative legal establishment have argued, then any efforts by government to exclude religious activity on the basis of the Establishment Clause can be recharacterized as attempts to interfere with the freedom of speech. The effect would be to incapacitate the Establishment Clause. And that was the whole point of the exercise.
In the near term, the biggest future gains for the Christian nationalist version of religious liberty are likely to come from the Supreme Court. During the now forgotten part of then Judge Brett Kavanaugh’s Senate confirmation testimony, before questions about his temperament and alleged past sexual aggressions consumed the proceedings, the two senators from Texas, Ted Cruz and John Cornyn, both praised Kavanaugh as a jurist who would uphold “religious liberty”—that is, the religious privileges of conservative Christians at the expense of other people’s rights. Indeed, Kavanaugh repeatedly signaled his concurrence with this theory animating the Trump administration when he invoked “history and tradition” in discussing his record of defending certain forms of religious liberty.
The underlying message about “religious liberty” operates on two straightforward assumptions. The first is that the religion in need of protection of its liberty is almost always a particular family of socially conservative Christianity. If a commitment to human equality, a duty to help all those in need, or the right to reproductive self-determination form the basis of your sincerely held religious beliefs, there is no liberty in this movement for you. The second is that the exercise of this liberty always involves a target group. This is the real meaning of this kind of “religious liberty”: the privilege enjoyed by certain groups to identify a despised other and to mobilize around the politics of grievance and hate.
Parts of this article are adapted from The Power Worshippers by Katherine Stewart.