Level the playing field for religion and civil rights

by Kimberly Atkins Stohr

The Bill of Rights, at its core, serves as the muscle for the lofty goal the nation’s Founders set out in the Constitution’s preamble: “to form a more perfect Union.” It’s meant to protect the fundamental, inalienable rights of every individual. But it also recognizes that creating an exhaustive list of inalienable rights is impossible. One reason: Some rights will inevitably come into conflict in a way that the text of the Constitution itself cannot fully resolve. The exercise of one American’s liberty will feel to another like infringement.

We see this at the intersection of religious freedom and equality rights. Increasingly — and particularly over the past several decades — religious freedom and equality rights have bumped against each other in ways that threaten to pull us apart. Legal battles between religious rights advocates and those seeking greater equality and civil rights protections have created bitter adversaries.

Those asserting religious freedom claims have sought exemptions from rules and laws designed to ensure that others live free from bias and attack based on their race, sexual orientation, gender or gender identity, or differing religion. For example, a religious adoption agency that refused to work with same-sex couples challenged the loss of government contracts over its discriminatory policy. Those demanding greater equality rights say laws designed to protect free religious exercise have been weaponized against them in an attempt to reverse hard-fought protections, as when a baker refused to make a wedding cake for a gay couple.

But the way to fully realize the ambitions of the Bill of Rights is not to scale back religious freedom or equality rights. It’s to give both the fullest constitutional protections possible.

Religious freedom — which includes not only the freedom to exercise religion but also freedom from the establishment of religion by the government or the majority — has and should keep the highest level of constitutional protection.

But equality rights should have that standing as well. The prohibition of discrimination on the bases of race, sex, sexual orientation, gender identity, place of origin, and other historically marginalized classifications must always be recognized as a paramount compelling interest under the Constitution. And that includes the liberty-based privacy right that protects women’s and others’ right to bodily autonomy.

This would solve a critical problem that has helped fuel the legal and political battles between equality rights and religion: The sides do not stand on an even constitutional playing field.

Few constitutional rights enjoy greater protection than religious freedom. That’s not to say that the history of religious rights in America has been easy or peaceful. The First Amendment was born as a result of deep and often violent religious discord. And religious freedoms are not absolute; the right to practice one’s religion ends where it infringes on the rights of others. But the strong and broad wording — “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” — and a spate of Supreme Court decisions in favor of religious freedom claims are evidence of the formidability of this right.

The foundational bases of equality rights, on the other hand, were not as clearly laid out in constitutional text and the road to protecting them has been tumultuous. They’ve come in an unsteady stream of constitutional amendments, building upon the Ninth Amendment, which was a placeholder for fundamental protections not otherwise enumerated in the document’s earliest forms. And unlike protecting religious freedom, protecting civil rights was not a goal of the Founders, who created a government that gave crucial basic rights of citizenry only to a narrow group of white men.

As a result, the struggle for equality in America has been long, uphill, and brutal. And among its biggest obstacles have been those who have claimed to be acting in the name of God.

That claim carries a kind of “cultural power,” says Tisa Wenger, an American religious history professor at Yale Divinity School.

“Its status is based not only in the First Amendment but [asserted] as a point of pride in what I would call an American exceptionalist narrative about the founding of the nation,” Wenger says. “There’s so much wrapped up in American identity about how we prize . . . religious freedom in particular.”

One of the clearest battle lines has been over abortion, which pits the privacy and liberty interest emanating from the Constitution against religious objections. But the rise of the modern religious right as a political movement didn’t start with Roe v. Wade.

As Randall Balmer, the John Phillips Chair in Religion at Dartmouth College, has pointed out, it began in the 1960s with attempts by some conservative Christian and fundamentalist leaders to defy school desegregation orders.

Private, whites-only schools existed in several places, founded by people like Bob Jones Sr., who created Bob Jones University and claimed that the Bible mandated racial segregation. When in 1970, the Internal Revenue Service revoked those institutions’ tax-exempt status due to their racial discrimination and a court upheld that move, Bob Jones Jr., Jerry Falwell, and other conservative Christians angrily blamed Democrats, and the religious-right movement took flight.

But one of the biggest boosts to the religious freedom movement came from the Religious Freedom Restoration Act of 1993, which was ushered into law with broad bipartisan support and at the urging of a wide-ranging group of religious and secular organizations.

It was in response to the US Supreme Court’s 1990 decision that laws that inhibit some religious practices — in this case, a state prohibition of the use of peyote, even in Native American religious rituals — don’t violate the First Amendment as long as the laws are not specifically directed at religious practice.

In that ruling, the court abandoned the strict scrutiny standard, meaning that the government no longer had to prove that infringing on religious freedom was the only way to achieve the goal of a law.

The Religious Freedom Restoration Act reversed that call. It restored such religious claims to the highest constitutional standard of review, requiring the government to prove that any law burdening religious exercise must be the least restrictive way to advance a compelling government interest.

Claims of racial discrimination are also covered by this highest constitutional standard of review. But equal protection claims involving gender inequality and LQBTQ rights, among others, are not. This belies the claim by the Christian right that their faith is under governmental and constitutional attack by antidiscrimination laws. In fact, the constitutional thumb is on their side of the scale.

That has caused equality rights advocates to urge Congress to rein in the Religious Freedom Restoration Act, saying it has been hijacked by those with agendas grounded more in rolling back civil rights and liberties than protecting religion.

There is no easy solution to this dilemma. Even if the 1993 law were amended to make clear that it does not give cover for individuals, religious groups, employers, or others to opt out of laws protecting civil rights, such a move would only pour fuel on the claims by the political religious right that their way of life is under attack, sparking more bitter legal and political battles.

But a good start — one that would better serve the Constitution’s goal of ensuring equal rights for all — would be to level the legal landscape by lifting the protections for civil rights, not by lowering those for religious freedoms.

The new standard would mean, among other things, any religious exemption to civil rights laws would require proof that such a law in fact infringes on religion and that such an exemption is the least restrictive means of protecting against that infringement. It would require that those making such religious claims live by the same constitutional rules with respect to civil rights that the law requires others to do with respect to religion.

It would not end the tension, legal or otherwise, between the two sides. But it would underscore that the role of courts in these challenges should not be to pick winners and losers. It should be to further establish the foundational principles on which the Bill of Rights is based — that fundamental individual rights deserve the highest protections but cannot be used to infringe on the rights of others. And it would encourage cooperation and coexistence over confrontation.

It wouldn’t be perfect. But it would be more perfect.

Kimberly Atkins Stohr can be reached at [email protected]. Follow her on Twitter @KimberlyEAtkins.