There is a tendency today to frame the debate over religious freedom and the separation of church and state in terms that are far too narrow. We are often urged to view the debate as a conflict over symbols, such as crosses on public land and prayers in public meetings, and we typically imagine that the harm is confined to the hurt feelings and suppressed speech of those whose symbols lose out. But the debate over church and state is a political conflict over the nature of the government we wish to have, and the potential harm is the dismantling of democracy. I take it that religious freedom involves a right to worship any God or no God in a peaceable way. I agree with Thomas Jefferson that religious freedom in America also requires a wall of separation between church and state. Wherever Peter is taxed to pay for the religion of Paul, or when Paul’s participation in the public sphere is in any way conditioned on religious belief, religious freedom is violated.
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.