So much of the contemporary religious liberty campaign being conducted by the Christian Right is demagogic fear-mongering designed to justify discrimination against other Americans, particularly LGBTQ people. While most of our attention is directed to larger-than-life marriage equality dramas being played out in courtrooms, legislative chambers, and major media outlets, the foundation is being laid for massive resistance to marriage equality and much more.
This is the story of one such effort that has received little attention.
The Liberty Institute, a leading Christian Right legal advocacy group based in Plano, Texas, is rolling out a plan to prepare people for what they suggest is an inevitable wave of anti-Christian legal attacks against everything from churches to frat houses and for-profit corporations. “What’s the solution to protecting yourself from legal attacks?” the Institute rhetorically asks. “In a word: ‘“religify.”” [Emphasis in the original]
“In a world where hostility toward religion is on the rise, it’s not a matter of if but when religious institutions will be faced with damaging, anti-religious legal attacks. That’s why Liberty Institute now offers free-of-charge Religious Liberty Templates and Guides to religious institutions—including churches and synagogues, faith-based charities, orphanages, shelters, sororities, fraternities and faith-based for-profit companies.” [Emphases in the original.]
The Liberty Institute says they want to help these agencies avoid “legal and financial ruin” due to the activities of “individuals and organizations that are offended by traditional religious viewpoints and seek to litigate employment or discrimination claims to further a larger political or cultural agenda.”
Yes, the answer to this alleged “open season on people of faith” is to religify your organization by specifying all of your beliefs, and to act in accordance with those beliefs by integrating them deeply into all institutional policies, from statements of faith to employment manuals to rental agreements for outside groups. The goal is to be able to “prove the sincerity of their faith—and protect themselves from coming legal attacks.”
The Institute draws on detailed understandings of recent Supreme Court cases as sources for this legal groundwork against the coming siege. They point particularly to the 2012 case of Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, which disallowed a discrimination complaint by a teacher, declaring that her role was part of the ministry of the church, and her employer therefore was exempt from employment discrimination laws. The decision is widely seen as having opened the door to a wide range of religious exemptions from civil rights and labor laws. The Institute also points to the 2014 decision in Hobby Lobby Stores, Inc. & Conestoga Wood Specialties Corp. v. Burwell, which for the first time endowed “closely held” for-profit corporations with religious rights under the First Amendment.
There are a lot of problems with the Institute’s approach. Let’s look at two of them.
In a recent article, the Institute offered six examples of how religious freedom is under attack, and therefore why religious institutions should reorganize using the Institute’s templates. The Institute claims, for example, that Catholic Charities was “forced” to close its adoption services in Boston. This is, unfortunately, typical of the hyperbolic distortion in many such claims. The Institute wrote:
“When a Massachusetts state law was passed stating that homosexuals must be allowed to adopt, Catholic Charities of the Boston Archdiocese made the difficult decision to stop offering adoption services—to avoid violating their sincerely held religious beliefs by providing adoptions to same-sex couples. Then, when the Catholic agency tried to obtain, an exemption from state law, it was denied.”
In fact, same sex couples had been able to adopt since a decision of the State Supreme Judicial Court in 1993. The Boston Globe reported in 2005 that for years, Catholic Charities had been placing children with gay adoptive parents in explicit compliance with Massachusetts anti-discrimination laws. In the wake of the Globe report, the 42-member board of Catholic Charities voted unanimously to continue gay adoptions, but the state’s four Roman Catholic bishops disagreed, and initially said they would seek an exemption from the law. Then-governor Mitt Romney said he did not have the power to grant such an exemption, so the bishops decided to discontinue their adoption program rather than comply with state non-discrimination laws or engage in potentially expensive litigation whose outcome was uncertain.
It should be added that Catholic Charities made its announcement near the expiration of a 20-year contract with the state to provide adoption services. That contract would likely not have been renewed in light of the Bishops’ refusal to obey the law.
Second, it is worth a look at the Institute’s recommended language for revising the policies of religious and other institutions to maximize the possibility of success in defense against lawsuits for violations of civil rights and labor laws.
In their template, Guidelines: Drafting Church Employment and Administrative Policies, Liberty Institute points to several court decisions, especially Hosanna-Tabor, that highlight the court’s recognition of “ministerial exceptions” to governmental regulation. The Supreme Court held in Hosanna-Tabor that the ministerial exception does not apply solely to persons that are traditionally thought of as “ministers.” The Institute believes that this may allow churches to cover most if not all church employees under the legal definition of ministry, and thereby justify broad exemptions from compliance with civil rights and labor laws. One of the ways they suggest accomplishing this is by tailoring job descriptions to emphasize how each position is an expression of their doctrine.
This has immediate implications, for example, on matters of sexual identity. The Liberty Institute’s template titled “Statement of Faith: Marriage and Human Sexuality” advances a strident, exclusivist, and detailed doctrine identifying permanent, heterosexual marriage or celibacy as the only acceptable parameters of human sexuality, adding:
“All of our members, employees, and volunteers must affirm and adhere to this Doctrinal and Religious Absolute statement on marriage and human sexuality to qualify for involvement with the ministry. This is necessary to accomplish our religious mission, goals and purpose.”
The Institute’s Facility Use Policy agreement would even require outside groups and individuals to conform to a given church’s views on faith, marriage, sexuality, and gender identity.
The Liberty Institute is not wrong to anticipate cultural and legal adjustments that will be made as LGBTQ equality advances, particularly in the wake of the marriage equality case currently before the Supreme Court. But people of good will across society will undoubtedly do their best to make adjustments to accommodate the rights of others without necessarily compromising their own views. (Others, perhaps not so much.)
However, the Institute is deeply misguided in its repeatedly articulated, conspiracist view that there is a massive effort to squelch religious belief and expression generally, and Christian belief and expression in particular. It’s an old saw with many today. But it has no more validity today than it did a hundred years ago, when the raging anti-Semite Henry Ford declared that Jews were waging a war on Christmas and Easter in America.
A certain amount of tension over the nature of religious activity and expression in our democratic, religiously plural society is normal. It’s not whether we all agree that matters so much as how we handle our disagreements.