The Christian Right, Gay Marriage, and the Abuse of ‘Religious Liberty’

The Christian right is deep in the grip of gay marriage derangement syndrome. As demonstrated by the vulgar spectacle instigated by Kentucky county clerk Kim Davis and her enablers, its activists refuse to adapt to the new world in which they live, and they find it impossible to exercise discipline over their demands, rhetoric, or legal arguments. And so, having lost the culture war they started decades ago over homosexuality, the Christian right is now on its way to losing the war it provoked over “religious liberty.”

Outside of fever swamps like this weekend’s Values Voters Summit, most Americans are skeptical of the Christian right’s persecution complex. For example, an ABC News/Washington Post poll last week showed that Americans overwhelming believe the need to treat everyone equally under the law is more important than someone’s religious beliefs.

And so the term “religious liberty,” which once signified a noble American value on which both the right and left could find common ground, appears to be headed toward the same fate as that old chestnut “family values”: a once-potent rallying cry that was so misused and abused that it became just another synonym for bigotry.

This is a tragedy for those who care about individual rights and a principled understanding of religious freedom. The most important voice on religious liberty once belonged to Supreme Court justice and liberal lion William Brennan, whose 1963 opinion in Sherbert v. Verner mandated strict judicial scrutiny of laws infringing religious exercise. (This was around the same time that one of the nation’s most prominent evangelicals, Bob Jones, Sr., was arguing that racial segregation was part of “God’s established order.”)

But Sherbert, like so many generous constitutional understandings, was a victim of the Rehnquist court, specifically a 1990 decision called Employment Division v. Smith. In that decision, the Court said the First Amendment’s Free Exercise Clause did not make the religious believer “a law unto himself,” and so religious objections could not overcome “neutral, generally applicable” laws – like, say, a law directing county clerks to issue marriage licenses to all qualified couples. Governments may give greater protection to religion if they choose in the form of exemptions or accommodations (more on that in a moment). But Smith goes a long way toward explaining why Kim Davis has no constitutional argument in her favor.

The Christian right was once a formidable political machine and home to some of the Republicans’ most celebrated strategists. But today it is a collection of sideshow acts like Ted Cruz and Mike Huckabee, who can’t even break double digits with the Republican base; hard-core theocrats like Roy Moore; disgraced frauds like Ralph Reed; and impresarios of fading relevance like Tony Perkins, organizer of this weekend’s evangelical summit in Washington.

And then there’s the over-the-top-homophobic group Liberty Counsel, which represents Kim Davis. In a filing to the very Supreme Court justices who had just legalized marriage equality in the name of “equal dignity,” the hacks in charge of Liberty Counsel’s brief couldn’t even restrain themselves from referring to gay “marriage” in scare quotes.

To listen to her legal team, you might think Kim Davis was the first person ever to experience a conflict between religion and her responsibilities as a citizen, employee, or public official. In fact, at both the federal and state levels, there is a well-developed body of law concerning religious accommodations in the workplace.

American law is highly individualistic when it comes to the definition of religious beliefs. This means that if Kim Davis says allowing a gay couple to receive a form with her name machine-printed on it somehow inhibits her own personal exercise of religion, and that she believes citizens elected her to arbitrate whose marriages are valid in the eyes of God, a court will probably accept such assertions with a straight face. But accommodations made on behalf of a believer must be objectively reasonable. Beliefs may be grandiose, but accommodations may not unduly burden other people.

Even under so-called “religious freedom restoration acts,” a government’s compelling interest in maintaining efficient public services and complying with Supreme Court law on marriage equality weigh against claims like Davis’s. As a federal appeals court observed this year in a case under the federal RFRA, “The very word ‘accommodation’ implies a balance of competing interests.” (The federal RFRA, at issue in the Hobby Lobby case, doesn’t apply to the states due to another Rehnquist-era decision. Davis’s arguments under Kentucky’s state RFRA remain to be litigated.)

Such legal balancing tests don’t work when one side believes it is the center of the universe and everyone else’s rights must give way. As “accommodation” for her beliefs, Davis thought that gay couples should be forced to drive to another county for their marriage licenses, or that the governor should convene a special session of the legislature to change state marriage procedures. Even when her name was removed, Davis’s lawyers were blowing smoke that the marriage forms were invalid. To anyone who knows something about religious-freedom law, it was predictable that the federal courts would respond to all this by saying, in effect, “Get back to us when you have something serious to offer.”

Properly understood, religious liberty refers to limitations on the government’s power to interfere with a believer’s conscience and how she chooses to live her own life. But as used by the Christian right, it is a demand that government laws or policies conform to evangelical doctrine. Like everyone else, religious believers are entitled to try to persuade their lawmakers and fellow citizens in the political marketplace. But a diverse democracy cannot function when one side basically claims a constitutional right to get its own way, or labels a court decision as a tyrannical assault on the rights of those who disagree with it.

The Christian right has stopped even pretending that its understanding of religious liberty involves anyone other than certain Christians. Witness the remark of evangelical standard bearer Ben Carson Sunday on Meet the Press that a Muslim could not be president. (And by the way, did we ever hear about the religious liberty of gay Episcopalians, Disciples of Christ, Unitarians, or Jews whose congregations were forbidden from marrying them by state “defense of marriage” acts the Christian right rammed through not so many years ago?)

Religion has long enjoyed a variety of special rights and legal privileges – tax breaks, God on the currency, a minister’s authority to act in the state’s name in solemnizing a marriage, to name a few. Conservative Christians grew accustomed to hegemony in a world where judges and lawmakers frequently deferred to their preferences. Only last year, the Supreme Court, relying on nothing more than “history and tradition,” said it was just fine if a city wanted to make everyone sit through appeals to Jesus and other sectarian prayer at government meetings. But as Americans become markedly less religious, things are changing, and the law’s treatment of homosexuality is a cutting edge of that change. So far the Christian right is reacting exactly like an indulged child throwing a particularly stormy tantrum.

Americans are not very sympathetic. The ABC News/Washington Post poll in the wake of the Kim Davis circus showed 63 percent believe she should be required to do her job regardless of her religious objections. Nearly three-quarters (including 66 percent of Republicans) said it was more important to “treat everyone equally” than to accommodate someone’s religious beliefs when the two conflict.

The Christian right hasn’t learned from its experience with the state Religious Freedom Restoration Act in Indiana last spring. Although RFRAs can be used to challenge virtually any law that is alleged to substantially burden someone’s religious exercise, the politics made clear that the only thing most Christian-right activists cared about was winning exemptions from civil rights laws that protected gays against discrimination. Legislators and business leaders became so concerned that the RFRA would tar Indiana with a reputation for anti-gay bigotry that they rushed through an amendment so that now, the one scenario where a religious accommodation is not available to a private business is in defense to any charge of illegal discrimination.

Never did the Shakespearean metaphor “hoist by his own petard” – to be destroyed by one’s own scheme intended to harm another – seem so appropriate.

Because most Americans seem to yawn both at the existence of gay marriage and at right-wing panjandrums saying some of the most incendiary possible things about both homosexuality and the Supreme Court, the republic likely will survive the end times of this particular culture war. But it may be with a distorted understanding of religious freedom, deeper confusion about the Constitution, and a more-impoverished understanding of our rights and responsibilities as members of a pluralistic society.

Steve Sanders

Steve Sanders teaches constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law in Bloomington.