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Blow by Blow: Beyond Religious Liberty vs. Civil Rights

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My freedom to swing my fist ends where the other man’s nose begins. — old saying, often attributed to Oliver Wendell Holmes, former Chief Justice, US Supreme Court

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof….—First Amendment, US Constitution

I didn’t hit him. His face ran into my fist.

This is a useful way to understand the current debate over “religious liberty” between (mostly) conservative Catholics and Evangelicals on the one hand and (mostly) the rest of us on the other. Both sides seem to agree that face and fist have made contact; we disagree about who is to blame.

Jay Michaelson’s recent Political Research Associates report, “Redefining Religious Liberty: The Covert Campaign for Civil Rights”, provides an important overview of this debate’s history, the major players, key issues and implications. He is primarily concerned with two issues that have become the focus of conservative advocates’ opposition: the expansion of LGBT rights and the passage of health insurance requirements relating to women. Each is portrayed by opponents as a threat to religious liberty, which can be mitigated only through “conscience clauses” and other exemptions. Supporters view these exemptions as infringements on their civil rights.

I’m impressed with the report’s unwillingness to overreach. If you’d expect Jay to be a zealous defender of civil rights and indifferent to religious liberty, you’d be disappointed. His disagreement isn’t over the importance of religious liberty, only when it should trump other rights.

Jay also is willing to concede that while conservative Catholics and Evangelicals may be paranoid, that doesn’t mean someone isn’t out to get them.

And we ARE out to get them. Well, maybe not “them” exactly. But those of us who believe that all people should have equal rights, regardless of sexual orientation, want to change more than just the law. We want to make homophobia and anti-LGBT bias an anachronism. We may not want to force clergy to perform same-sex marriages, but we do want to create a society where those who refuse to do so are in the minority. A small, isolated, minority.

In the language of my opening analogy, if homophobia is outside the accepted norm, then religious bigotry is the fist; if homosexuality is outside the accepted norm, then religious coercion is the fist.

This is not the first time conservative Christians have asserted their “religious liberty” at the expense of others. The lines separating church and state were thin, even transparent, for much of American history. And then, arguably starting with the Scopes monkey trial nearly a century ago, those lines became increasingly substantial.

When you fall from a position of hegemony, the transition is bound to be rough. Think about how many battles conservative Christians have lost in the past 100 years. Evolution is a majority view point. Contraception is used by all but a few. Public school prayer is proscribed. Homosexuality is quickly losing its social stigma. Racial and gender discrimination are banned and widely considered anachronistic. Abortion remains constitutionally protected. Divorce is common. Pornography is widely available to anyone with internet access.

The contemporary, politically engaged Christian Right arose out of frustration with a series of Supreme Court rulings in the 1950s and ’60s. Collectively these cases strengthened the Establishment Clause of the First Amendment to prohibit sanctioned prayer in schools, government-sponsored religious displays, and other forms of comingling religion and state.

Interestingly, Jay focused not on these landmark cases of the Warren Court, but on a case from the 1970s decided in 1983 by the Burger Court: Bob Jones University vs the United States.

This is a fascinating case. Essentially, Bob Jones University openly discriminated against blacks. In response, the government withdrew its tax exempt status. The university protested, claiming that its racist policies were protected religious expression. The case went to the Supreme Court, which ruled against the university.

The Court didn’t question the sincerity of the religious belief; they simply asserted that the religious liberty of Bob Jones didn’t trump government’s interest in protecting the civil rights of black students.

So, how is Bob Jones relevant today? For conservatives, a gay Bob Jones case is their nightmare scenario. If LGBT people become a protected class, like blacks, then the government could revoke the tax-exempt status of religious institutions with anti-gay policies.

Jay goes to some lengths to explain why this fear is a red herring. It’s an important explanation, but in the end it boils down to this: your race can put you in a constitutionally protected class (see the Civil War amendments) while your sexual orientation cannot.

The truth is, both sides in this debate are trying to create societal norms. The evangelicals and Catholics Jay explores want to create a norm around religious liberty that extends far beyond religious institutions to include religious individuals. In this society, they don’t expect anyone to be forced to hire gay people or provide insurance with contraception coverage to our employees if it violates their conscience. For those on the other side of this debate, we want to create a societal norm that says if you decide to go into business, you will need to abide by the same rules as everyone else. Just as pacifists can’t withhold payment of taxes because of their opposition to our standing military, individuals who oppose homosexuality and contraception can’t discriminate against gays or women.

Societal norms both shape and are shaped by the law. When the Supreme Court ruled in Loving v Virginia that a state couldn’t ban interracial marriage, it helped to shape a societal norm that did not yet exist. More recently, the Supreme Court’s rulings against anti-gay laws demonstrate the Court’s willingness to let its reading of the Constitution be shaped by evolving societal norms.

Cultural shifts are important. In the past few weeks, we’ve seen violent attacks on gay men. But the crowds, the public, quickly denounced gay-bashing, with community groups and activists joining faith leaders. Thirty years ago, you just didn’t see that as much.

When it comes to fists, it’s not just who’s throwing the punches. It’s how the crowd reacts. That’s why changing hearts and minds matters as much, if not more, than changing laws.

Mik Moore, the principal and founder of Moore + Associates, is recognized as one of the leading digital media campaign strategists in the United States, combining a deep understanding of public policy with years of experience as a writer, editor, and public speaker. Mik co-founded the Super PAC responsible for many of the most viral videos of the 2012 and 2008 campaigns, including Wake the Fuck Up with Samuel L. Jackson and Let My People Vote with Sarah Silverman. In 2010-2011 he played a leadership role in the successful campaign to get Glenn Beck off of Fox News. Before starting Moore + Associates in 2011, Mik was the Chief Strategy Officer at Bend the Arc: Jewish Partnership for Justice. Mik earned a law degree from Georgetown University Law Center and a BA in History from Vassar College. He lives in New York City with his wife, Deborah, and their two children.