“A dangerous movement, undetected by many, is now challenging and eroding our great tradition of religious freedom,” said Attorney General Jeff Sessions this week, announcing the formation of a Justice Department task force devoted to defending religious liberty.
The movement “must be confronted and defeated.” Sessions added, painting a grim picture in which ministers were afraid to preach the word of God, religious organizations were labeled as hate groups for espousing traditional morality, and — famously — a baker was sanctioned by Colorado for refusing to create a cake for a gay couple’s wedding.
But that baker recently won his case before the Supreme Court (even if the victory was not as sweeping as religious conservatives might have hoped). Indeed, as Vox’s Tara Isabella Burton points out, religious plaintiffs seeking religious exemptions have amassed a solid record in the courts in recent years — notably in Hobby Lobby, in which the owners of the craft store chain were freed from the obligation to cover contraception in their health plan.
So why does the rhetoric of religious liberty remain so potent on the right? I spoke with Nelson Tebbe, a law professor at Cornell Law School and the author of Religious Freedom in an Egalitarian Age, about how this once-sleepy corner of the law became a flashpoint in the culture wars, about Justice Antonin Scalia’s surprising role in awakening the modern debate, and about what might happen if that Colorado baker, Jack Phillips, makes it back to the Supreme Court.
This interview has been lightly edited for clarity.
Sessions’s language was pretty strong — suggesting that Christians are second-class citizens in the US. Do you think that kind of language connects with a significant constituency?
I do think Sessions is speaking to a sector of the population that does feel beleaguered on account of their religious beliefs, as well as [on account of] a constellation of other sorts of cultural and social characteristics and preferences. Sessions is speaking to a real perception of a significant substratum of the American citizenry. And in a sense, our law reinforces the idea that religion has been — and could be again — a salient characteristic on the basis of which groups can be subordinated within the American populace.
What makes Sessions’s comments so interesting, however, is that we don’t normally think of mainstream Christians as the targets of that kind of subordination. In his statement, Sessions also mentions minority religious groups. They are more familiar as needing the solicitude of law and government to protect them from the vagaries of social and economic discrimination. But we don’t normally think of mainstream Christians in that way.
Think about the background facts: The Supreme Court has not decided a religious freedom case in a way that’s adverse to the interest of Christians for the past few terms. I can’t think of a single religious freedom case that they’ve lost. And the other two branches of government are currently controlled by the Republican Party, which has been consistently understanding of religious freedom — including the desires and wishes of mainline Christians.
So where is the sense of beleagueredness coming from?
It’s coming mostly from debates over two questions. The first is reproductive freedom for women; the second is LGBTQ rights.
Thinking about [reproductive freedom] doesn’t really clear up the mystery because there, too, it seems like religious traditionalists in America are mostly winning the fights. But there have been some decisions, especially by the Obama administration, that were protective of reproductive freedom for women in ways that set up conflicts with conservative Christians — in particular the decision by the Obama administration to interpret the Affordable Care Act in a way that requires the provision of cost-free contraceptive coverage for employees.
The second explanation, and I think the more powerful one, has to do with LGBTQ rights. Religious conservatives have lost important LGBTQ rights cases, including, most prominently, Obergefell [which established same-sex marriage as a constitutional right]. So I think that’s where a lot of the tension is coming from.
But that doesn’t clear up the mystery entirely either, because the politics of LBGTQ rights are such that Obergefell probably won’t be reversed even by a court that includes, say, Brett Kavanaugh [who is nominated to replace retiring Justice Anthony Kennedy]. And President Donald Trump hasn’t come out against gay rights, even though he has made some changes that are unhelpful to LGBTQ interests. So I think some mystery still remains as to where exactly the sense of victimization the attorney general expresses comes from.
To what extent can a Justice Department task force sway things one way or another? Isn’t this largely a matter of constitutional law, to be settled by the courts?
I do think the Justice Department can be very effective, including on constitutional questions, in part because the attorney general, like justices of the Supreme Court, swears to uphold the Constitution; also because a lot of these questions will never get to the Supreme Court, either because there is no one to challenge them or because they just won’t get litigated for other reasons. So I think this is an example of constitutionalism outside of the courts, and it can be very effective and very important.
Can you step back historically for a second? It seems like for a long time, religious liberty was not a very active area of the law. There were small-bore cases involving whether, say, the Amish had to keep their kids in school till they were 16. What caused this to explode into a culture war issue?
I’ll tell you how that history unfolded, as I see it. Before 1990, the Warren Court [during which Earl Warren served as chief justice] had developed a jurisprudence of religious freedom that was quite protective of religious minorities. The Court applied what’s called strict scrutiny to free exercise infringements.
And that was of a piece with the Warren Court’s “rights revolution” more generally, where individual rights were protected more strongly than they had been. At the same time, the Warren Court continued its strengthened establishment clause jurisprudence that was quite adamant about the separation of church and state.
In 1990, all of that changed, when the Court decided Employment Division v. Smith, about Native American use of peyote. In that case, the Court announced a new rule, which was that normally religious actors would not receive exemptions from general laws. So unless the laws were discriminating against them in some way, they wouldn’t get exemptions.
That was announced as a change in the law and understood that way. It also sparked widespread bipartisan opposition. And so in 1993, Congress did whatever it could to reverse Employment Division v. Smith by enacting the Religious Freedom Restoration Act (RFRA), which passed by overwhelming bipartisan majorities. That reflected an alliance between, on the one hand, religious groups who were protecting their interests and also their beliefs, and civil liberties groups that saw this as protecting certain vulnerable groups, namely religious minorities.
It still took a while, you might notice. It took three years for RFRA to be passed even though it had overwhelming support, and the reason is the first dynamic that I mentioned earlier: reproductive freedom. [In the early 1990s,] there was some thought that the Supreme Court was getting ready to reverse Roe v. Wade. In actual fact, it did not: It reaffirmed the central holding of Roe v. Wade in Planned Parenthood v. Casey, in 1992.
The Roman Catholic Church [was concerned that] if Roe were reversed, the RFRA could be used by women who wanted to obtain abortions; [those women might say] that they deserved a religious freedom exemption from laws that prohibited abortions.
But after Casey came out the way it did, the church no longer had any objection to RFRA. The law sailed through Congress and was signed into law by President Bill Clinton.
I take it Democrats didn’t foresee that it would be used as a weapon against contraception or gay rights.
No, because gay rights was not on the national agenda in the very early 1990s. What happened next was a Hawaii court found a presumptive right to same-sex marriage in a case that was litigated in the early to mid-1990s. And that case put the gay rights agenda on the national scene for the first time.
Suddenly, civil liberties groups thought, “Oh, my goodness. It may be the case that religious landlords could use the Religious Freedom Restoration Act to get exemptions from civil rights laws, if they didn’t want to rent to gay tenants on the same basis as they were renting to heterosexual tenants.” They started to realize that with an ascendant gay rights movement, the RFRA could have retrogressive effects — as indeed started to happen.
So the coalition that supported RFRA disintegrated. … And that sort of set up the contemporary dynamic where there’s tension between, on the one hand, religious freedom for mainstream Christian groups and equality law on the other hand.
That Scalia wrote the opinion in Smith, the case about Native American use of peyote, seems ironic. We think of him as a champion of religion in the public sphere, yet the decision he wrote asserted the primacy of general law over the religious exemptions.
There were two commitments of Scalia that were at war in that case. One was the one you mentioned. Justice Scalia was quite sympathetic to and protective of religious freedom interests.
But on the other hand, Scalia was not a fan of the Warren Court’s rights revolution. He had a jurisprudential difficulty with it, namely that he thought it gave judges too much power to strike down or create exemptions to general laws. That jurisprudential concern won out in Employee Division v. Smith. He just thought the test the Warren Court put in place gave courts too much power to act against democratic majorities.
At the time, that was seen as a conservative kind of position … but the political polarities have shifted over time. So now many progressives support Employment Division v. Smith and oppose exemptions for religious traditionalists.
I’m not one of those. Even though I consider myself an egalitarian, I think there’s a place in our law for religious exemptions from general statutes. So I support RFRA, but I don’t think it should be used as a sword to undermine civil rights protections for other vulnerable groups, rather than as a shield.
The Court has kind of punted in the last couple of cases. They didn’t squarely decide Masterpiece Cakeshop. They found some discriminatory language in Colorado officials’ discussions of the case, but they didn’t say whether the baker had the right to outright deny service to gay customers. If they had come down one way or another, would that help to cool this debate, or just inflame it?
The accepted liberal reaction to Masterpiece Cakeshop is that the decision was narrow and incorrect. I actually think the decision was quite broad in articulating principles of law that should guide the court in future cases, and that those principles were correct. There’s a lot to embrace in Masterpiece Cakeshop. But there is something to the idea that the Supreme Court was trying to get out of a case that was very tricky.
I think what happened was this: It only takes four votes to grant certiorari to hear a case. And we can say with some confidence who voted to hear that decision, right? It was the conservative justices who disagreed with the outcome in the court below.
That put Justice Kennedy in an awkward position. He had to decide the outcome of a case that he probably didn’t want to hear in the first place, because it pitted, on the one hand, his commitment to LGBTQ rights against, on the other hand, his solicitude for religious freedom and freedom of speech. So Kennedy was looking for a way out, and he found it in these stray comments by members of the Colorado Civil Rights Commission. That allowed him to resolve the case without setting a lot of precedent.
What broad principles are identifiable in Masterpiece?
First, the Court reaffirmed the idea that religious actors do not get exemptions from general civil rights statutes. At the very beginning of the opinion, Kennedy says this quite clearly — and this was a proposition that was signed on to not only by the seven justices who joined the majority opinion but also by the two dissenters: In an ordinary public accommodations case, a religious actor does not receive an exemption from a civil rights statute.
That’s the first thing. The second is that on these questions conservatives had been arguing that “dignitary harm” — the degrading of equal citizenship status of gays and lesbians — was not enough to defeat a religious freedom exemption.
They looked at Masterpiece Cakeshop and they said, “Hey, the couple in this case, [Charlie] Craig and [David] Mullins, were able to get a cake down the road with no difficulty after they were refused by Jack Phillips. So there were no economic harms to them, and unless there is tangible economic harm, the government doesn’t have a strong enough interest in protecting gay couples to defeat a religious freedom claim.”
The Court, I think, clearly rejected that position and said dignitary harm is enough to defeat a religious freedom claim. The Court had never said that before.
The third proposition is also quite helpful: Very slim evidence of discriminatory intent can be enough to hold government action unconstitutional. In previous cases, including cases involving race discrimination, stray remarks that were discriminatory by government officials were not enough to condemn government actions as being discriminatory or as violations of the equal protection clause. But in this case, the Court said that these two remarks by members of the Colorado Civil Rights Commission were enough to defeat the government action. That’s a principle that we should embrace.
If you combine Smith, the Religious Freedom Restoration Act, and Hobby Lobby, does that add up to a workable framework for religious liberty? Or is it the system broken?
In general, and in practice, I think the jurisprudence is pretty good. Despite what the Court said in Employment Division v. Smith, there is in most jurisdictions in the United States a right of religious people to get exemptions from general laws. And that can be very important in situations where a Muslim prisoner wants to a grow a half-inch beard despite prison grooming regulations, for example. So we need laws like that to protect religious minorities.
I would prefer if the constitutional rule were changed to reflect that ability of religious minorities to get exemptions from general laws. So I would rewrite Employment Division v. Smith … but in practice, the doctrine is fairly workable. … But the key is how the Court interprets and applies those rules. And I think many of the recent decisions were deeply misguided, including Hobby Lobby.
In that case and others, the Court did not take adequate account of the effect of religious exemptions on third parties. In Hobby Lobby, the religious actor got an exemption from a general law, but that exemption imposed costs on others — in this case, women employees or the women dependents of men employees of a major corporation. And I think the doctrine should be changed to better reflect the interests of third parties in these kinds of situations.
So there are some changes that I would make if I were on the Court, or that I would vote for. But I don’t think the real problem is doctrinal. I think the real problem is political and interpretive.
In other cases, like Holt v. Hobbs, when the Muslim wanted to grow a half-inch beard, there is no harm to third parties.
If Masterpiece Cakeshop, or a similar case, makes it back up to the Court, do you think it will establish the principle that you cannot refuse service to gay couples because of the resulting “dignitary” harm?
I sure hope so. It would be hard for a court that wants to gainsay that purpose to get around that language in Masterpiece Cakeshop. However, look, I’m a realist. I understand that Justice Kavanaugh, if he becomes Justice Kavanaugh, will take a position on these questions that’s more conservative than Kennedy’s.
I don’t think there’s any doubt that it was Kennedy who insisted — he wrote the opinion — on this language about dignitary harm. I think he genuinely hopes that principle survives a changed Court.