He urged—and then forced—a conversation about religion and democracy
Had Jeremiah Wright's antics not forced Barack Obama to expound famously on race in 2008, the most significant speech of his short Senate tenure would have been his 2006 remarks on religion and democracy. Appearing before Call to Renewal's conference on “Building a Covenant for a New America,” Obama urged Christian activists and Democratic voters to reconsider the relationship between church and state. Mankind may have grappled with our dueling obligations to Caesar and Creator—the City of Man and the City of God—for millennia, but the time finally had come for a “serious debate.”
“I think we make a mistake when we fail to acknowledge the power of faith in people's lives,” he said. “And I think it's time that we join a serious debate about how to reconcile faith with our modern, pluralistic democracy.”
Well, if a decade ago America lacked “serious debate” on how to reconcile faith with democracy (or, one might add, on how to reconcile democracy with faith), then Obama surely has spent the intervening years doing everything possible to force what he might call a “national conversation.” That conversation is not just about faith and democracy, but also about the non-democratic parts of our government, the administrative agencies promulgating new laws and the courts creating new civil rights, which in turn collide with religious freedom, raising questions our country is only beginning to grapple with.
One such conversation occurred in April, between Justice Samuel Alito and Solicitor General Donald Verrilli. As the Supreme Court heard oral arguments in Obergefell v. Hodges, on whether the Fourteenth Amendment protects same-sex couples' right to marry, Alito asked Verrilli whether the creation of such a nationwide right might force religious organizations to make an impossible choice: either acquiesce in same-sex marriage or risk the philanthropic death sentence of losing their tax-exempt status. It was an obvious question and, in the aftermath of the IRS's scandalous treatment of conservative groups, one for which the administration would be expected to have a simple, reassuring answer. But, astonishingly, the solicitor general replied with little more than a shrug: “It's certainly going to be an issue. I—I don't deny that. I don't deny that, Justice Alito. It is—it is going to be an issue.”
Another recent conversationalist is Martha Minow, dean of the Harvard Law School. Last month, the school convened a conference on “Law, Religion, and Health in America.” It was occasioned by the Supreme Court's decision last year, in Burwell v. Hobby Lobby, that the Obama administration could not use the Affordable Care Act to force certain corporate employers to subsidize their employees' abortifacient contraceptives. In her remarks, Dean Minow warned that when “people of faith” are forced to choose sides in a conflict between their religious beliefs and national policies to the contrary, the faithful will sometimes choose God over country, and leave. “That would be sad,” she said, “since this country actually has been a haven for religious freedom really since even before its founding.”
Sad, yes, but: “On the other hand, there will be some issues where the values of this country will run into conflict with some people's religious views, and if they can't live with it, they should leave.” Our goal, she concluded, must be to find compromises where we can, so that the choice offered to religious believers won't be “more all-or-nothing than it needs to be.”
A lot of conversations seem to go like this in the closing years of Obama's presidency, where so much of his agenda returns us, over and over again, to the collision of government power and religious liberty. First and foremost, Hobby Lobby and cases that have followed it—Wheaton College v. Burwell; Little Sisters of the Poor v. Burwell; Priests for Life v. Department of Health and Human Services—make plain the constitutional difficulties inherent in a federal regulatory agenda that would force religious organizations and private employers to play a central role in providing contraceptives to third parties.
Elsewhere, concerted efforts by the administration and its allies not just to create and enforce a constitutional right to same-sex marriage, but to go still further and force third parties—such as the proverbial photographers and bakers—to personally and directly facilitate such weddings, raise increasingly stark questions of religious freedom under federal and state law.
And there are other examples. In 2012, the Supreme Court struck down the administration's assertion of control over a church school's choice of ministers. Such an extension of government power, the unanimous Court held, went far beyond the normal boundaries of federal employment regulation—it would have “interfere[d] with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.”
If, as Obama observed in 2006, America's “religious tendency” speaks “to a hunger that goes beyond any particular issue or cause,” much the same could be said for his administration's tendency to encroach upon the space that our country normally reserves for religion, conscience, and community—reflecting not just the particular circumstances of same-sex marriage or Obamacare, but something more fundamental about his administration's aims and assumptions. After he leaves office, the most challenging question to answer about Barack Obama's presidency may be that of why so much of his administration's work seemed to insist—either intentionally or unintentionally—on reducing and restraining the role that religion and conscience, separate from government, plays in our society.
The Obama-era conflicts between religious liberty and government power are the latest chapter in an age-old story, but they are not merely a simple reiteration of familiar arguments. They result from the assertion of government power through executive and judicial branches, rather than legislative branches. The difference is crucial, both for the present debate and for the future we face.
Traditionally, we think of conflicts between government power and individual liberty as pitting majority against minority. This basic narrative has prevailed from the very beginning: At the Virginia convention ratifying the Constitution, James Madison argued that express protections of religious freedom would be superfluous in our broad and diverse republic, because “where there is such a variety of sects, there cannot be a majority of any one sect to oppress and persecute the rest.” Later, when the first Congress proposed what would come to be the First Amendment's religious protections, Madison reiterated that it was motivated by public fear that “one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform.”
Two centuries later, the Supreme Court's canonical cases on religious liberty embody that majority-versus-minority paradigm. In Sherbert v. Verner (1963), the Supreme Court faced a conflict between South Carolina's statute requiring unemployment beneficiaries to make themselves “available for work” and Seventh-day Adventists' observation of the Sabbath on Saturdays. In Wisconsin v. Yoder (1972), the Court faced a conflict between Wisconsin's statute requiring parents to enroll their children in school and Amish families' historical refusal to formally school their children beyond eighth grade. And in Employment Division v. Smith (1990), the Court faced a conflict between Oregon's laws prohibiting drug use and Native Americans' religious use of peyote.
The common thread connecting these cases is not the Court's ultimate resolution of the conflicts. (In Sherbert and Yoder, the Court held that religious exemptions must be made to the generally applicable laws. In Smith, the Court reversed course and held that religious liberty does not justify exemptions to such broad, facially neutral statutes—a doctrinal about-face that spurred Congress to enact the Religious Freedom Restoration Act.) Rather, what connects these cases is the context in which they arose: not religious minorities being specifically targeted by the laws in question but religious minorities touched incidentally by statutes written by legislatures in broad terms, statutes that were eminently justifiable in general—unemployment compensation, public education, and public health and safety legislation.
In such contexts, there is good reason to hope that the give-and-take of ordinary politics will result in compromises that ultimately vindicate the public's general legislative purposes while at least somewhat softening their impact on religious minorities. As Justice Scalia wrote for the Court in Smith, “a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.” He added, “it is therefore not surprising that a number of States have made an exception to their drug laws for sacramental peyote use.”
The legislative tendency toward compromise and accommodation is exemplified by the Religious Freedom Restoration Act, which requires, as President Clinton remarked at its signing, that “the Government should be held to a very high level of proof before it interferes with someone's free exercise of religion.” To that end, RFRA establishes a balancing test to mitigate laws' burdens on religious freedom. The legislative process is no panacea, of course—as the religious communities in Sherbert, Yoder, and Smith saw firsthand. But its inherent checks and balances reduce the risk that religious groups will be gratuitously burdened, and thus the legislative context gives judges reason to presume, at least initially, that the resulting law is justifiable.
During Obama's presidency, by contrast, the collisions between progressive policy and religious liberty are not the result of legislative compromise or political give-and-take. Rather, they come from administrative agencies pushing a specific agenda as aggressively as possible, or from courts announcing new rights in absolute terms, leaving little apparent room for religious freedom. In this respect, the threat to religion comes not from popular majorities, but from minority factions that succeed in capturing either administrative or judicial power and leveraging it against religious minorities who stand in the way of their policy agenda.
Administrative absolutism was illustrated perfectly in Hobby Lobby and subsequent cases. The contraceptive mandate that the Obama administration wants to enforce against religious employers, and now against religious organizations, is found nowhere in the Affordable Care Act itself. However partisan the act itself may be, however rushed and ideological the act's promulgation may have been, it does not seek to impose such controversial requirements on religious believers. (It probably would not have passed either chamber of Congress if it had.) Indeed, at oral argument Justice Anthony Kennedy voiced doubts that an agency could plausibly be trusted to restrain its own policy agenda in order to protect religious liberty: “What kind of constitutional structure do we have,” he asked Solicitor General Verrilli, “if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?”
But regulators are not the only unelected officials prone to writing new laws in absolutist terms. To the extent that same-sex couples' right to marry ultimately results from judicial decisions (at the administration's behest) rather than legislative compromise, judges' expansive vision of such new rights may leave legislators little room to exempt religious institutions, organizations, and persons from direct involvement with same-sex weddings. As Harvard's Dean Minow acknowledged in her remarks, “adversarial litigation leads to black and white, yes and no, win and lose answers.” The legislative process, by contrast, often facilitates the inclusion of “accommodations [for religious liberty] that can be worked out on a much more nuanced level than win-or-lose when there are two parties,” especially when there are “third parties, fourth parties, and fifth parties affected by the resolution between two parties [in court].” In the present Supreme Court litigation over same-sex marriage, religious persons, organizations, and institutions are among the third, fourth, and fifth parties who may be directly affected by the Court's eventual decision in Obergefell v. Hodges, either in terms of their tax-exempt status or in terms of their freedom, under state law, to decline to participate directly in same-sex weddings.
Ultimately, that context could prove crucial in a conflict between religious liberty and the judicial creation of same-sex marriage rights. A poll recently published by the Associated Press, for example, reports that Americans are closely split over whether “the Supreme Court should or should not rule that same-sex marriage must be legal nationwide”—50 percent supported it, 48 percent opposed. But the same poll found a majority of Americans believe that “wedding-related businesses with religious objections should be allowed to refuse service to same-sex couples”—52 percent endorsed such religious protections, 45 percent opposed them. Finally, when the respondents were asked bluntly, “in cases where there is a conflict, which do you think is more important for the government,” to “protect the rights of gays and lesbians” or “protect religious liberties,” they picked religious liberty over gay rights by a margin of 56 to 40.
Such public sentiments suggest that legislative processes resulting in the recognition of same-sex marriage would also include protections for religious liberty. When courts and agencies, by contrast, are the government bodies deciding how to create and enforce a right to same-sex marriage, such generosity cannot be assumed.
Indeed, by attempting to resolve these issues in courts rather than in legislatures and public referenda, same-sex marriage proponents changed dramatically the very character of the debate. In legislatures or referenda, arguments for and against same-sex marriage must be calibrated to convince the unconvinced, the undecided voters or outright converts. Proponents of same-sex marriage thus argue extending marriage to same-sex couples will benefit society, not harm it. Its opponents argue the reverse. To prevail in those public forums, same-sex marriage's proponents must grapple seriously with tradition, religion, and other sources of public values, while its proponents must grapple just as seriously with cultural change and changing notions of equality. In courts, by contrast, proponents of same-sex marriage must argue that their opponents are not merely wrong but irrational, if not altogether hateful—and thus that religion is not merely wrong but irrational, if not altogether hateful.
Even more worrisome is the long-term outlook. As ever more power gravitates toward agencies and courts, rather than elected legislatures and the people generally, we can expect to see more and more conflict between government policy and religious liberty. In short, the future of religious liberty in America is tied inextricably to the future of administrative and judicial power in America.
The trend toward administrative and judicial power carries with it a corollary problem. When minority factions capture either administrative or judicial power and leverage it to achieve their policy agenda, there emerges a risk that religious minorities may fall victim to government officials' outright animus—subjected not just to incidental burdens necessary to achieve a particular policy outcome, but to gratuitous punishment for their moral beliefs.
Here, too, the Obama administration's contraceptive mandate may be an illustrative example. In Hobby Lobby, the Supreme Court raised an obvious question: If providing abortifacient contraception to the public at large is a compelling governmental objective, why must private parties be forced to bear the cost of third parties' contraceptives? “The most straightforward way” of providing contraceptives to those who can't afford them, the Court observed, “would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers' religious objections. This would certainly be less restrictive of the plaintiffs' religious liberty, and HHS has not shown ... that this is not a viable alternative.”
Despite losing Hobby Lobby, the Obama administration continues to insist upon forcing religious organizations to participate directly in the provision of subsidized contraception, even when utterly unnecessary. In Priests for Life v. Burwell, a case recently decided by the D.C. Circuit Court of Appeals, the Obama administration argued that religious organizations can be required to file paperwork facilitating the provision of contraceptives to their employees. That reduced role in the process is offered by the administration as a nominal “religious accommodation”—an alternative to the organizations' having to pay for the contraceptives outright or incur significant penalties.
The administration prevailed in the D.C. Circuit last November, and in May the full court decided not to rehear the case. But in dissenting from the court's refusal to rehear the case, Judge Brett Kavanaugh posed a simple question: Why force religious organizations to participate at all? The government can achieve the very same policy aims by simply asking organizations to identify themselves as having religious objections to the contraception mandate, at which point “the Government can independently determine the identity of the organizations' insurers and thereby ensure that the insurers provide contraceptive coverage to the organizations' employees.” That process “may create some administrative inconvenience for the Government, because the Government itself will have to identify the religious organizations' insurers.” But, Kavanaugh concludes, “administrative inconvenience alone” cannot justify the burdens that the Obama administration would rather place on religious organizations.
We eventually will see whether the Supreme Court elects to hear the case, and if so whether it shares Kavanaugh's view. But as Kavanaugh and others demonstrate, the administration's insistence upon binding religious objectors to the contraception-subsidy process seems completely gratuitous. As a result, one cannot help but wonder how much of that policy is driven by regulators' simple hostility toward religious objections.
The Religious Freedom Restoration Act protects against such hostilities by requiring the government to show that significant burdens upon the free exercise of religion are kept to the absolute minimum level needed to achieve the government's compelling interest—that is, that the burdens imposed on religious persons are the “least restrictive means” of achieving the government's ultimate policy objective. When such burdens arise from generally applicable statutes—say, restrictions on drug use, in Smith—one might presume that they are merely incidental. But when they arise from specific regulations promulgated precisely to apply to religious believers, outright hostility toward the religious minority becomes a worrisomely plausible explanation of the government's conduct.
In recent years, concerns about government animus against minorities have been a crucial part of the public case in favor of same-sex marriage, largely because of the jurisprudence of Anthony Kennedy. Writing for the Court in United States v. Windsor (2013), Justice Kennedy held that the federal government's refusal to recognize same-sex marriages, in the Defense of Marriage Act, violated constitutional rights of due process and equal protection because it was “motivated by an improper animus” against homosexuals, accomplishing nothing more than “interference with the equal dignity of same-sex marriages” performed under state law.
This piece originally appeared in Weekly Standard