BY EMILY R. GILL, Caterpillar Professor of Political Science Emerita, Bradley University
In recent years, many religious individuals and organizations in the United States have displayed increasing concern about their ability to exercise their religious beliefs freely. Some of this concern has accompanied the increasing recognition of the rights of LGBT individuals. Much has stemmed from increasing religious diversity. Some feel threatened by new manifestations of religious faith and practice. Honoring these rights has increasingly been interpreted to require not only the negative liberty of freedom from interference, but also a positive governmental obligation to ensure the conditions of religious flourishing.
Although many suggest that government should be neutral toward religious belief and practice, the concept of neutrality is subject to conflicting interpretations. This point emerges clearly in disputes over the scope of religious exercise by organizations receiving public funds. For some, neutrality requires the denial of financial aid to all religious organizations. For others, neutrality requires that religious organizations have equal access to public benefits without having to shed their religious character. The Trump administration is currently seeking to allow discrimination based on religion, sexual orientation and gender identity in government-funded employment. Public funding for religiously based organizations has no place in a liberal democracy, however, unless these are separately incorporated and thus governed historically by laws against discrimination in hiring—which regulations Trump desires to change. Allowing the government to decide which religious groups are worthy of support, moreover, results in favoring some groups over others. These groups should not receive public funds when their policies impact those who may not share their values.
Private voluntary organizations, however, should not be forced to reflect the values of the larger society. Although the previous discriminatory Boy Scout policies were regrettable, the Scouts evolved over time as organizations often do. Organizations that exist within larger public entities, however, are different. The Supreme Court was correct to uphold Hastings Law School in forcing the Christian Legal Society as a registered student organization to admit all comers. Such groups also represent the values of a public entity, and they can continue to operate as independent entities loyal to their own values if they so choose.
Although Hobby Lobby Stores is a private entity, the Court was incorrect to justify the business owners’ religious refusal to cover certain contraceptives in their insurance plan. Employers should not be allowed to withhold generally available benefits from their employees—who will not all share their values—to satisfy their own religious beliefs. The Court found narrowly that bakery owner Phillips could refuse to create cakes for same-sex wedding celebrations, as the state of Colorado had displayed hostility toward his religious beliefs. Commercial establishments, however, are public accommodations and should not be allowed to discriminate against customers on the basis of those customers’ identities. Discrimination against conduct—formal commitment—is also discrimination against the identity or status of a same-sex couple.
Jurisdictional pluralists suggest that the government designate a sphere of noninterference as a jurisdictional boundary that it will not cross. However, a prior authoritative structure must exist to define the nature and scope of this jurisdiction, just as the Constitution defines the relationship between national government and states. Religious individuals and groups should exercise their convictions within their areas of competence, but in a liberal society and state, they cannot define for themselves the limits of these areas.
“Free Exercise of Religion in the Liberal Polity: Conflicting Interpretations,” by Emily R. Gill, Palgrave Macmillan, 2019. E-book, $84.99; hardcover $109.99; paperback to be available in a year.