The Washington PostDemocracy Dies in Darkness

Opinion When did religious belief become an excuse to discriminate?

Police officers stand in front of a temporary security fence at the U.S. Supreme Court building on June 21. (Anna Moneymaker/Getty Images)

Louise Melling is deputy legal director of the American Civil Liberties Union.

Emboldened by the U.S. Supreme Court, today’s religious right is pressing in courts nationwide for what amounts to a sweeping right to discriminate. U.S. courts are flooded with cases brought by institutions claiming their right to religious freedom entitles them to refuse to comply with anti-discrimination laws.

Under the banner of religion, an employer is asserting a right to deny its workers insurance coverage for drugs that prevent HIV— an argument that just Wednesday found favor in federal court. Religiously affiliated schools posit a right to fire unmarried pregnant women. And taxpayer-funded child placement agencies turn away families seeking to foster or adopt because they are Jewish, Catholic or a same-sex couple.

For the past decade, the American Civil Liberties Union has tracked cases invoking a religious right to discriminate, and we’ve never been more alarmed. The sheer number of these cases has exploded. In 2012, the first ACLU report documenting them came in at seven single-spaced pages. The most recent report runs close to 30.

The scope of these claims has also mushroomed. When we began our monitoring, most claimants sought to restrict women’s access to abortion and contraception and deny wedding services to same-sex couples. Now, in the name of religion, businesses assert a right to refuse to hire LGBTQ people, public school teachers a right to misgender students and others a right to discriminate against terminally ill patients exploring end of life options.

These efforts are simply incompatible with a pluralistic constitutional democracy that values both equality and religious freedom. Religious freedom, after all, doesn’t mean a right to hurt others.

Consider an example currently making headlines from Texas. On Wednesday, a U.S. district judge accepted the argument of a for-profit business that it has a right to deny employees insurance coverage for pre-exposure prophylaxis (PrEP), pioneering drugs used to prevent the transmission of HIV that can cost as much as $20,000 a year. The employer argued that buying insurance that covers this treatment — as required by federal law — “substantially burdens” its religious freedom because “homosexual behavior” conflicts with its Christian faith. The court accepted the argument, letting the employer’s religious beliefs override the health of its employees.

The PrEP case is no outlier. In Massachusetts, the Salvation Army is arguing that its shelters can discriminate against people with opioid use disorder who rely on medication-assisted therapy, the most effective treatment for addiction. The charity maintains that its objection is religiously based and should therefore trump its obligations under federal civil rights law to serve people with disabilities.

Proponents of religious exemptions portray them as a shield to protect religious people from an increasingly secular United States. In reality, they’ve become a sword wielded to impose religious beliefs on others.

There’s a straightforward explanation for the surge we’re seeing in religious refusals. In recent years, the Supreme Court has found in decision after decision that requiring compliance with anti-discrimination laws injures Christians, even as it blatantly ignores egregious forms of discrimination inflicted on women, racial minorities and LGBTQ people.

Particularly important was the 2014 case Burwell v. Hobby Lobby Stores, in which the arts and crafts chain challenged a requirement that employer insurance cover contraception. In that case, the court expressly extended religious exemptions to “the commercial, profit-making world,” to quote Justice Ruth Bader Ginsburg, for the first time.

In a recent speech, Justice Samuel A. Alito Jr., quoting scripture, implored “champions of religious liberty” to “go out as wise as serpents and as harmless as doves” to challenge the “growing hostility to religion” in America. The justice, who penned the Hobby Lobby opinion, now has a solid majority hungry to give these “champions” whatever they want.

This fall, the court will hear a major case asserting a constitutional right to discriminate. A public website design business in Colorado is objecting, on religious grounds, to serving same-sex couples seeking a wedding website. Although the court agreed to hear only the claim asserting a free-speech right to discriminate, declining to hear the religious freedom claim, a ruling in favor of the business could entitle those with religious or any other objections to ignore anti-discrimination laws. The United States could soon see bakeries with “wedding cakes for heterosexuals only” signs next door to shuttered abortion clinics.

We have been here before. In the mid-1960s, a white supremacist who refused to serve Black people at his South Carolina barbecue restaurants argued that he was entitled to a religious exemption from the newly enacted Civil Rights Act. His lawyers told a trial court that the owner believed “as a matter of faith that racial intermixing or any contribution thereto contravenes the will of God,” and therefore enforcing the Civil Rights Act against him “constitute[d] State interference with the free practice of his religion.” The Supreme Court dismissed the argument as “patently frivolous.”

Champions of this “patently frivolous” claim are back before a remade Supreme Court. Half a century ago, the court snuffed out the flame on claims that religious freedom gave institutions the right to violate anti-discrimination laws. This time, it is lighting the match.