Everyone should obey the law. Obeying the law protects peace, public order, and good health.
The First Amendment’s Religion Clauses were designed to protect such a legal system. They aimed to keep a diverse population at peace by giving them one shared system of law. That system sensibly arose from the terrible Wars of Religion, which are the main historical background to religious freedom in the United States. Religions always disagree, and frequently dispute their disagreements. Therefore, the common law cannot be religion-based, and everyone must follow it. Professor Ellis West made this point in his book, The Free Exercise of Religion in America: Its Original Constitutional Meaning, when he concluded “it is highly unlikely that early Americans believed that the free exercise of religion entails a right to religion-based exemptions from civil laws that the government has a right to pass” (p. 305).
Occasionally the Supreme Court understands this point, as it did in Employment Division v. Smith, the sensible, yet controversial, case that ruled everyone must obey the law, without judicially-concocted religious exceptions. Smith is frequently criticized, and may be overruled soon. Post-Smith, moreover, Congress and many state legislatures granted legislative exemptions to religions through their federal and state Religious Freedom Restoration Acts (RFRAs).
It was the federal RFRA, not the Free Exercise Clause, that granted employers the right to refuse contraceptive insurance to their employees in Burwell v. Hobby Lobby. Even though using contraceptives is a constitutional right, and even though the government was trying to pass universal health care coverage in the Affordable Care Act, i.e., health care coverage that would cover everyone, RFRA’s religious exemption gave many employers the right to disobey health law and set their own no-contraception standard. President Donald Trump has expanded the exemption so that even more employers can deny their employees the insurance coverage. The employers no longer have a responsibility to report their denials to the government or the insurance company. Trump also threatened to cut off all federal health aid to California because it has a law that requires insurance companies to cover constitutionally-protected abortions.
Trump has also enlarged medical conscience against patients’ rights. Medical personnel already enjoyed extensive conscience clause protection, a legal right given to protect them from providing any service they do not want to provide. Trump’s new religious freedoms policies allow medical personnel to refuse patients for any reason of conscience. The medical conscience trumps the health of women, LGBTQIs, people of color, minorities, the poor, or anyone the doctor’s or nurse’s conscience dislikes. The more appropriate, follow-the-law, standard would be to recognize that health law is supposed to protect patients’ health first, not consciences of medical providers.
LGBTQIs are a special object of discrimination. The dissenting justices in the gay marriage case, Obergefell v. Hodges, urged the protection of anti-gay conscience. Next term, the Supreme Court will hear a case, Fulton v. Philadelphia, in which Philadelphia refused to fund Catholic adoption agencies because they discriminated against same-sex couples in the placement of children. Philadelphia correctly wants the same antidiscrimination laws to apply to everyone. The religious freedom asked for in the case gives Catholics the possibility of winning a case in which Smith is overturned, and they earn a right to set the law their own way instead of obeying the law as it is.
Vaccines are needed by everyone in order to preserve herd immunity and protect each other from disease. States are learning what happens if they hand out religious or philosophical exemptions, letting people be vaccine-exempt for any personal reason. Outbreaks of measles in California, New York and other states have taught that everyone needs to be vaccinated. States have been changing their laws to require vaccination, realizing only everyone’s obedience to the health laws can protect everyone else.
For many years, religious sex abusers hid their abuse under the argument that the First Amendment protected them from the law. That claim allowed them to hide their abusers’ records, and to protect the abusers instead of the abused. Gradually the courts learned in many abuse cases that religious people of any status need to be sued and to be required to obey the laws that protect children. Unfortunately, not all states allow these lawsuits to proceed. There is still the wrong idea that unlawful religions are protected from court scrutiny by the First Amendment.
Due to numerous court decisions from both state and federal courts, the First Amendment now leaves religious organizations free to discriminate against anyone they call a minister. According to the Court, the right to discriminate on the basis of age, disabilities, gender, sexual orientation, race and all the other antidiscrimination laws belongs to religions. This rule is called the ministerial exception, which is an affirmative defense. It generally protects employers instead of employees because the case never gets to trial if the affirmative defense is met.
The Ninth Circuit recently ruled, correctly, that a Catholic laywoman and a non-Catholic woman were teachers, not ministers, and so able to sue their employers for disabilities and age discrimination. The Supreme Court was originally scheduled to hear oral argument in the two cases, St. James School v. Biel and Our Lady of Guadalupe School v. Morrissey-Berru, on April 1, but due to the COVID-19 pandemic, has postponed argument. We wait to see if the Court will affirm the Ninth Circuit, or will instead expand the ability of employers to turn their religious employees into ministers who can never sue for wrongdoing.
It is hard to imagine a peaceful United States that allows religions a constitutional or statutory right to discriminate against all types of people. A system that, at the same time, allows them tax benefits. Church status with the IRS gives churches tremendous advantages, allowing churches to keep private much information about them. A whistleblower recently complained that the privacy of the tax laws allowed the Latter-day Saints to make $100 billion in a supposedly tax-exempt investment fund requiring the funds to be distributed.
Bob Jones should have set that issue straight. In 1983, the Supreme Court, 8-1, upheld the IRS’s decision to revoke Bob Jones University’s tax-exempt status because the school discriminated on the basis of race. Justice Samuel Alito asked in the oral argument at Obergefell if Bob Jones would apply to cases involving sexual orientation discrimination:
Well, in the Bob Jones case, the Court held that a college was not entitled to taxexempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?
The answer to that question should be yes, but the IRS has not yet moved to make it so. The non-exempt rule should be applied to all organizations that violate antidiscrimination laws. They should not have a constitutional right to break the laws and be tax exempt while they do it.
Imagine what that a law-obeying country would look like. Everyone would obey the laws banning racial discrimination. All employers would provide contraceptive insurance. All employers and stores would respect LGBTQI rights. No law would protect child abuse or abusers. Everyone would be vaccinated to protect their own and everyone else’s health. Conscience clauses would not provide medical providers a reason to deny sterilization, contraception, abortion, the right to die, or any other medical procedure to any patient.
That’s what would happen if everyone would follow the law.
