Recently, anti-LGBT activist Bryan Fischer of the American Family Association boldly claimed on his radio show that “[w]e can’t have homosexuality and the First Amendment.” The U.S. Conference of Catholic Bishops says pretty much the same thing about equal benefits for women when they rail against the Obama administration’s new rules requiring insurance plans to cover birth control. This type of argument is getting a lot of play lately, and it’s often accepted uncritically – despite the fact that it betrays a fundamental misunderstanding of the First Amendment and its protections for religious liberty. Unfortunately, it’s a misunderstanding we’ve seen in past civil rights struggles – but fortunately, it’s also one that we’ve resoundingly rejected.
Drawing on this theme, the bishops this week kicked off their “Fortnight for Freedom.” It’s a much-hyped campaign that purports to champion religious freedom, but in actuality distorts it by promoting the use of religion as a license to discriminate. The bishops have made headlines lately for their vociferous opposition to contraception. They argue that because Catholic doctrine opposes birth control, no woman should be guaranteed coverage of it in her health plan. But their agenda goes much further than contraception.
Cardinal Timothy Dolan, who chairs the bishops’ conference, recently took the president to task for his support of marriage for same-sex couples, and the bishops have been forcefully advocating that Catholic agencies should be able to get government contracts while refusing to perform the required work. In other words, they believe that a Catholic charity that receives public funding to provide adoption licenses, for example, should be able to turn away otherwise qualified same-sex couples who want to provide loving homes to children in need. On all these fronts, the bishops claim that this is about religious liberty. Don’t be fooled. It’s about discrimination plain and simple. And it’s not the first time this has happened.
From the birth of the civil rights movement, some opponents of those rights argued that their religion required them to discriminate against others. Restaurants wanted out of laws requiring businesses that are open to the public to treat everyone equally regardless of race. They claimed that religion compelled them to segregate their establishments, and asserted that the First Amendment required the government to put civil rights laws aside.
Likewise, in justifying the miscegenation laws that prohibited mixed-race marriages, the trial court in Loving v. Virginia noted that “Almighty God created the races … and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.” Though that opinion was reversed by the U.S. Supreme Court in a landmark ACLU case in 1967, such objections were deeply rooted. Indeed, the Bible was long used to defend the practice of slavery.
The same arguments were used to exclude women from public life. In 1869, the Illinois Supreme Court famously explained that it was a commonly held belief that “God designed the sexes to occupy different spheres of action,” when it upheld a law that prevented women from becoming lawyers. More recently, schools have tried to get out of the Equal Pay Act so that they could pay male employees more, because scripture teaches that only men can be the “head of the household.” And in the last few months, we’ve seen a rash of stories about religiously-identified schools firing unmarried teachers for being pregnant, or married teachers for using in vitro fertilization to try to start a family.
These claims are all borne out of the same world view – that “religion” justifies treating certain segments of our society as second-class citizens. It animates the bishops’ campaign and others like it. And it’s that world view that threatens to undermine the progress we’ve made, and that we continue to press for, toward equality and fairness for all people. As a nation, we rejected it when it came to integration, and we must reject it now.
Campaigns like the so-called “Fortnight for Freedom” are all the more dangerous because they call upon and then distort the meaning of true religious liberty. We have the right to a government that neither promotes nor disparages religion generally, nor any faith, in particular. We have the absolute right to believe whatever we want about God, faith, and religion. And we have the right to act on our religious beliefs – unless those actions harm others.
We can have the First Amendment and strong protections against discrimination. But we cannot allow the bishops or anyone else to redraft the terms of religious liberty according to the dictates of one set of religious beliefs. That would be the end of the First Amendment and religious freedom as we have all come to know it.
Laura W. Murphy is director of the ACLU Washington Legislative Office.