Rationing Religious Freedom

Does the religious freedom of a company's owners trump that of its employees? Are some "persons" more equal than others?
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The religious right is fighting to turn America's religious freedom from a shield into a sword against public policies and groups they dislike. Posing as victims, they demand a religious trump card that would nullify civil rights protections and allow the redlining of public commerce and health care along lines of gender, class, and sexual orientation. Their most prominent targets are gay marriage and birth control; but with each success, their appetite can be counted on to grow.

The U.S. Supreme Court this term will hear another challenge to the Affordable Care Act. At issue in Sebelius v. Hobby Lobby Stores, Inc. (linked with Conestoga Wood Specialties Corp. v. Sebelius and Autocam Corp. v. Sebelius) is whether a for-profit corporation can deny contraceptives in health coverage to their employees based on the owners' religious beliefs. The case touches on the Religious Freedom Restoration Act of 1993 (RFRA), which states that the government "shall not substantially burden a person's exercise of religion" without a compelling government interest, and unless the burden is the least restrictive means of furthering it.

Can a corporation, as distinct from its owners, hold religious beliefs? Is a corporation a person for religious purposes? Does the religious freedom of a company's owners trump that of its employees? Are some "persons" more equal than others?

Advocates in the marriage equality movement have navigated the church-state boundary. In 2009, as the D.C. Council was considering the Religious Freedom and Civil Marriage Equality Amendment Act, the Catholic Archdiocese of Washington sought an exemption to the D.C. Human Rights Act so they could discriminate against gay employees and clients as a government contractor for foster care services. That not only went beyond First Amendment protections, it twisted the Gospel by rendering everything to their God and nothing to Caesar, the public square that people of all faiths must share. Fortified by decades of gay rights advocacy, District officials refused to be bullied.

The "freedom for me, but not for thee" stance, pushed through the prism of corporate rights, advances the prospect of a new feudalism in which workers enjoy fewer protections and opportunities while business owners are free to run roughshod.

Those of us in cities with many merchant options risk falsely generalizing from our circumstances. As Sarah Warbelow of the Human Rights Campaign said at the Center for American Progress on December 12, the clustering of religious groups in different areas means there are many towns where professionals could be rendered unemployable if a few employers in their field imposed a religious test. The same for customers facing "unwelcome" signs at the local bakeries or pharmacies they rely upon.

If discrimination is wrong, as most voters believe, then carving out overly broad exceptions, in which "micro churches" can opportunistically pop up and impose their will anywhere at any time, undermines the respect and tolerance that cement our pluralistic democracy. It takes us closer to (or worsens) an age of robber barons who are a law unto themselves; a day when only corporations are people; a return to a time when only the lord of the manor had any rights that anyone need respect.

There is cause for hope. In 2011, Mississippi voters rejected a measure to grant personhood to fertilized eggs. In 2012, North Dakota voters rejected a "religious freedom" measure that would have made it harder to crack down on child neglect and domestic violence. This month, an anti-gay baker in Colorado was found guilty of discrimination. Yet concerns remain over the breadth of the religious exemption in the Employment Non-Discrimination Act, pending in Congress.

"Religious freedom" is a vague and slippery term. Casting a keen eye on its misuse is essential if we are to preserve the real thing.

This piece appeared in Bay Windows and Metro Weekly.

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