Commemorating RFRA & IRFA: Why Religious Freedom Remains Vital to U.S. Law and Policy

In by Katie Jo Larsen

This year marks the 30th anniversary of the passage of the Religious Freedom Restoration Act (RFRA) and the 25th anniversary of the International Religious Freedom Act (IRFA). These bipartisan pieces of legislation, signed into law by President Bill Clinton, have been integral to preserving religious liberty protections at home and abroad for the past three decades.   Event Overview: This …

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Public Bioethics & the Failure of Expressive Individualism

How we understand the human person shapes our social mores, institutions, and laws.  DOWNLOAD THE PDF There is a clear correlation between the rise of artificial intelligence (AI) and other emerging technologies and the attention given to bioethics. Bioethics—the study of defining what is moral with regards to science, medicine, and technology—must have, at its base, a working definition of …

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Religious Liberty in American Higher Education

DOWNLOAD THE PDF Religious liberty is having a moment. Every recent Supreme Court term has included at least one high-profile religious liberty case on its docket, and the regulatory docket of every presidential Administration of late (including the current one) also has included a number of regulations implicating religious liberty. The highest profile cases and conflicts tend to involve wedding …

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Indonesia’s New Criminal Code Leads to Conflict with U.S.

Paul Marshall, Director of RFI’s South and Southeast Asia Action Team, wrote an article published in Providence this week on criticisms of Indonesia’s newly revised Criminal Code, including those provisions that have harmful religious freedom and other implications. He writes: Although it is the world’s fourth largest country by population, and the third largest democracy, Indonesia usually attracts comparatively little …

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RFI Senior Fellow Speaks at Notre Dame Law School Religious Liberty Event

Jennie Bradley Lichter, RFI’s Senior Legal Fellow and Deputy General Counsel at the Catholic University of America, recently joined a panel discussion at an event hosted by Notre Dame Law School’s Religious Liberty Initiative titled, “Careers in Religious Liberty.” Lichter gave advice on how to enter the religious liberty space, stressing the importance of first learning the craft of lawyering, …

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Why Religious Freedom Can’t Protect Abortion

Andrew Kubick, Research Fellow for RFI’s National Center for Religious Freedom Education, recently penned an essay for Public Discourse titled, “Why Religious Freedom Can’t Protect Abortion.” In it, Kubick disputes the argument that access to abortion where it is restricted by law can be grounded in religious freedom. Kubick explains: Because direct abortion intentionally kills an unborn human being, no …

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RFI Joins Letter Urging GOP Senators to Oppose ‘Respect for Marriage Act’

In 2015, the U.S. Supreme Court’s decision in Obergefell v. Hodges imposed same-sex marriage throughout the United States. Seven years later, the matter of marriage has surged back into the center of public debate, this time prompted by House passage of  the “Respect for Marriage Act.” The Senate is expected to act in the coming days.  On Tuesday, I joined more than 80 …

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RFI’s Eric Patterson Interviewed on “Ed Stetzer Live” on State of Religious Freedom in U.S. 

RFI’s Executive Vice President Eric Patterson was recently interviewed on the “Ed Stetzer Live” radio show to discuss the outcome of Carson v. Makin, in which the Supreme Court rejected Maine’s policy to exclude faith-based schools from its private-school choice program. Patterson discussed this important victory for religious liberty, and provided an overview of the broader religious liberty landscape in …

A Firm Foundation for the Trinity Lutheran Decision

Chief Justice Roberts was on pretty solid ground when he observed, in his opinion for the Court in the recent Trinity Lutheran case, that “[y]oungsters . . . often fall on the playground or tumble from the equipment. And when they do, the gravel can be unforgiving.” And, the foundation is no less firm for the Court’s conclusion that the First Amendment does not permit governments to discriminate against religious believers and organizations when distributing public benefits.

Conscience Protection and Discrimination in the Republican Party Platform and Mississippi’s H.B. 1523

By: Linda McClain

Last May, before the Supreme Court issued its landmark opinion in Obergefell v. Hodges,Cornerstone sponsored a symposium on “Responding to Indiana RFRA and Beyond,” which focused on Governor Mike Pence’s swift “fix” of Indiana’s RFRA, after protests and threats of boycotts, to clarify that it would “not create a license to discriminate.” Particularly controversial were provisions protecting the conscience of persons operating for-profit businesses.

Battleground Over Religious Freedom Shifts Southward, with Broad Implications

By: Matthew Quallen

Last month, the battleground over religious freedom in the United States shifted southward. On March 22, North Carolina Governor Pat McCrory signed a law rolling back municipal protections for gays and lesbians and banning transgender people from using bathrooms other than those corresponding to their assigned sex. The nation erupted. A week later, Georgia Governor Nathan Deal vetoed a bill, the “Free Exercise Protection Act,” aimed at protecting organizations that might withhold services or employment from some on the basis of religious beliefs. 

Obergefell and the Reconstituting of American Community

To say that marriage was merely incidental to the same-sex marriage decision, Obergefell v. Hodges,  would be an exaggeration. There were surely people, after all, who sincerely wanted the blessings of marriage to be extended to same-sex couples. In a broader perspective, though, marriage was merely one convenient point of attack in a larger campaign. Consequently, far from calming cultural conflicts, the Court’s decision has instead provoked an intensification of such conflicts.

Congress Hits Refresh Button on U.S. International Religious Freedom Policy

By: Judd Birdsall

In May the House passed a bipartisan bill that would bring America’s global religious freedom advocacy into the twenty-first century. The Frank R. Wolf International Religious Freedom Act (H.R. 1150) provides a number of critical updates and upgrades to the existing International Religious Freedom Act (IRFA) of 1998. The new bill—or Marco Rubio’s nearly identical Senate version (S. 2878)—merits the Senate’s prompt approval. 

Antonin Scalia and Religious Freedom

By: Matthew Quallen

On February 13, news of Antonin Scalia’s death hit the Republican Party like a thunderbolt. Racing out of Texas, the news stunned the would-be Republican nominees, who observed a moment of silence during a debate that same night. The death of the conservative jurist jolted a sleepy senate to life: within hours, senators left and right cast the opening salvos in what promises to be a nasty fight over the balance of the Supreme Court. That fight pushes on, gathering steam. And while the hurly-burly intensifies, pundits on both sides breathlessly analyze exactly what is at stake: major decisions on abortionaffirmative actionunionsNative sovereigntyreligious freedom, and districting during the Court’s current term alone. As some candidates tell it, until and unless a neo-Scalia takes a seat on the bench, the Court’s fidelity to the constitution is blowing in the wind. 

The Kim Davis Situation: How to Make Distinctions When Conscience and Duty Collide

By: Robert Vischer

Though her release from jail may have temporarily reduced the drama surrounding Kim Davis’ refusal to issue marriage licenses to same-sex couples, the Kentucky clerk’s case will not be the last that pits a public official’s claim of conscience against our constitutional order. Those of us who believe that the liberty of conscience is an important hallmark of US law may be tempted to rally to Davis’ defense. That temptation should be resisted. We can take conscience seriously and still recognize that the level of deference the community owes conscience is a function, in part, of one’s professional role. 

The Kim Davis Case, Religious Conscience, and the Rule of Law

By: Matthew J. Franck

On June 26 of this year, five justices of the Supreme Court, led by Justice Anthony Kennedy, inflicted a grievous wound on the Constitution by falsely claiming that it requires states to grant marriage licenses to same-sex couples. In an opinion that would be hilarious (for its incompetent reasoning) if its effects were not so tragic, Kennedy and his fellow justices in the majority chose sides with the aggressors in a culture war that has made political prizes out of fundamental pre-political institutions such as marriage and family, and even of the meaning of human dignity—which now comes attached in law to the self-constituting choices of adults, but not to the very lives of the unborn. 

“L’etat, C’est Moi” Is Not a Religious Accomodation

By: Michael Masinter

Louis XIV supposedly once remarked, “L’etat, c’est moi.” But in the United States, public officeholders like Kim Davis are not the state. Although the Free Exercise clause of the First Amendment protects the right of public officials to believe same sex marriages are sinful, the Establishment Clause forbids their offices from having any religion. Yet under the banner of religious accommodation, Ms. Davis seeks to impose her religious objection to same sex marriage on the office she holds. Although some claims for religious accommodations can pose difficult questions, this one does not. Ms. Davis is free to believe as she does, but cannot make those beliefs the religion of the office of the county clerk.  

In Kentucky, A Win-Win for the Constitution

By: Charles C. Haynes

Kim Davis, the now famous county clerk in Rowan County, Kentucky, is out of jail and back to work this week. But she is not interfering with the clerks in her office who are processing marriage licenses for same-sex couples.

Davis, who objects to gay marriage on religious grounds, is apparently satisfied that removing her name and position from the licenses sufficiently guards her freedom of conscience.

No One Should Lose Freedom After Obergefell

By: Jennifer Marshall

The Supreme Court has mandated same-sex marriage for all 50 states. No one should lose freedom as a result of that decision.

To ensure that Americans have as much freedom after the redefinition of marriage as they did before, the law should prohibit government discrimination against those who dissent from the conclusion of five justices in Obergefell v. Hodges

Real Religious Liberty Risks and Misplace Fears

By: Robin Fretwell Wilson

A sharply divided United States Supreme Court, led by Justice Kennedy, concluded last week that States may not lock same-sex couples out of marriage —provoking calls by religious leaders and others  for civil disobedience. While the fight over how marriages are celebrated, recognized or facilitated, particularly by religious organizations and government employees, continues to unfold, it is crucial to parse real concerns from misplaced apprehension.  Dissenting “from the court’s ruling,” a collection of 128 religious figures said, “We will not allow the government to coerce or infringe upon the rights of institutions to live by the sacred belief that only men and women can enter into marriage.”

Protecting Same-Sex Families and Religious Dissenters After Obergefell

By: Thomas C. Berg

Obergefell v. Hodges, declaring a constitutional right to same-sex civil marriage, is a historic vindication of the rights of same-sex couples and the welfare of their children. It also leaves open many questions whether the rights of religious objectors will receive meaningful protection too.  Justice Kennedy’s majority opinion correctly held that the challenged state laws denied same-sex couples their fundamental right to civil marriage under the Due Process Clause and denied them equal protection of the laws in access to that right. Same-sex couples fit within the most accurate description of today’s institution of civil marriage: a committed mutual relationship of multi-faceted intimacy (emotional, domestic, and physical), often but not always directed to raising children. And the reasons given for excluding same-sex couples did not come close to justifying the burdens from that exclusion.

Getting Beyond the “Right to Be Wrong”

By: Patrick Deneen

Now that the decision has been rendered, the question is now “What next?” The outcome was not surprising; what happens next, however, is as predictable as it is troubling. Religious liberty is destined for the same fate as traditional marriage.  As many perceptive defenders of faith have long understood, advances in official recognition of same-sex relations—including, but not limited to, marriage, adoption, employment law, education, tax law, etc.—would necessarily come into conflict with religious belief, believers, and institutions. Some prescient thinkers began organizing for this eventuality by advancing the case for strengthening religious liberty as a bulwark.

“Liberty,” “Marriage,” and Religious Freedom

By: Steven D. Smith

Religious freedom is only obliquely addressed in Obergefell v Hodges. Justice Kennedy’s majority opinion mainly declaims on something that he dubiously calls “liberty,” and on an august institution (albeit one that seemingly eludes definition) that he chooses to call “marriage.” The dissenting opinions mainly denounce the judicial usurpation of democratic self-governance. Still, the decision has important, if unpredictable implications for religious freedom, and it is our painful duty to contemplate—“through a glass, darkly,” so to speak—what these might be.

Apocalypse Now?

By: Robert Tuttle and Ira Lupu

For many years, religious conservatives have been sounding alarms about the threat that marriage equality poses to religious freedom. As same-sex marriage spread across the United States and the world, those alarms became increasingly intense, with predictions that religious conservatives would suffer all manner of harms, from civil penalties to criminal sanctions. Now, in the immediate aftermath of the Supreme Court’s decision in Obergefell v. Hodges that the Constitution requires all states to recognize marriage equality, we’ve witnessed an outpouring of prophecies that the apocalypse for religious freedom is near. These prophets of doom are just wrong, except in one crucial respect.

Same-Sex Marriage and Religious Freedom: Portents of Future Trouble

By: Matthew J. Frank

Obergefell v. Hodges , the pending Supreme Court case on same-sex marriage, is the year’s most closely watched case among advocates of religious freedom. Yet it is doubtful that considerations of religious freedom, or questions of individual conscience, will enter into the central reasons for judgment given by the justices in deciding the case. Such considerations may not even be mentioned at all in the opinions of the justices.

Muslims Women, Religious Freedom, and EEOC v. Abercrombie

By: Engy Abdelkader

The US Supreme Court’s recent decision in EEOC v. Abercrombie & Fitch  —supporting a Muslim woman’s civil right to observe hijab at work and prohibiting employers from considering a job applicant’s religion or belief practices in hiring decisions—reinforces America’s commitment to religious freedom. 

Additionally, one might draw a number of broader insights. 

First, the case highlights female agency in challenging anti-Muslim discrimination.

Religious Freedom in America: Constitutional Roots and Contemporary Challenges

By: Allen Hertzke

When we organized a national symposium on religious freedom in America at the University of Oklahoma in the spring of 2012, little did we know that clashes over the contours of this constitutional right would soon erupt in major political battles, court challenges, public mobilization, news commentary, and lobby campaigns. Nor did we expect that in some circles religious liberty would take on partisan or even pejorative connotations.

Supreme Court Debates Meaning of Marriage and Consequences of Judicial Redefinition

By: Ryan T. Anderson

Last Tuesday’s oral arguments at the Supreme Court were excellent. There were so many good points made about what marriage is and why redefining marriage would cause harms.

This serious consideration of the harms of marriage redefinition stands in stark contrast to outrageous lower court rulings that had declared no rational basis to state marriage laws defining marriage as it always had been in America: a union of husband and wife. 

Conscience, Discrimination, and Marriage Equality: Are Analogies to 1964—and 1967—Inevitable?

By: Linda McClain

The swift “fix” of Indiana’s Religious Freedom Restoration Act (RFRA) to clarify that the law would “not create a license to discriminate” followed “storms of protest” from “the worlds of arts, business and college athletics” and threats of boycotts. To some, the highly publicized controversy had parallels to Arizona’s preemptive effort in 2014 to protect religious conscience, even though Arizona neither permitted nor recognized same-sex marriage. Former governor Frank Keating criticized the Arizona law (vetoed by Governor Jan Brewer), commenting: “This isn’t 1964 anymore. We’ve moved beyond that. If you open up your doors to the general public, you can’t pick and choose who are you are going to deal with.”  Following criticism of the Indiana law, Governor Pence invoked his activities in the Civil Rights Movement, asserting that “the issue of discrimination has been an anthem throughout my life.” 

Redefining Marriage Would Erode Religious Liberty and Free Speech Rights of Citizens and Churches

By: Carl H. Esbeck

Among the many friends-of-the-court briefs in support of the states in the current same-sex marriage litigation, three especially noteworthy briefs have been filed by religious organizations, public speakers, and scholars concerned about religious liberty and free speech. One brief expresses the joint views of several Protestant churches and the Church of Jesus Christ of Latter-day Saints (LDS), while a second brief was filed by the United States Conference of Catholic Bishops. Both reject the notion that support for man-woman marriage is founded on animus and that the marriage laws can be struck down on that basis. They also warn that elevating sexual orientation to a protected class or same-sex marriage to a fundamental right would impede religious liberty. 

Religious Freedom and the Demands of “Dignity”

By: Ralph C. Hancock

The Church of Jesus Christ of Latter-day Saints took a very significant step into the political arena this past January by holding a news conference to urge balancing “religious freedom protections with reasonable safeguards for LGBT people—specifically in areas of housing, employment, and public transportation.” Elder Christofferson in his brief introduction made very plain that this practical, civic accommodation did not signal any doctrinal shift regarding Church teachings on marriage and sexuality: “We are announcing no change in doctrine or Church teachings today.” The point, he said, is rather to “seek for solutions that will be fair to everyone.”

Protecting Religious Liberty Requires Protections for All

By: J. Stuart Adams and Robin Fretwell Wilson

This month, we have heard more about wedding vendors and same-sex marriage than many imagined possible. The cause for such discussion: plain-vanilla religious freedom restoration acts (“RFRAs”) enacted in Indiana and Arkansas.

RFRAs operate in contexts far removed from gay marriage to protect religious believers from being stepped on by governments. RFRAs test the need for governments to take heavy-handed approaches that trod on religious practices. Last year, Kentucky jailed 10 Amish for refusing to display orange safety triangles on their horse-drawn buggies. 

Indiana Among the Pagans?

By: Steven D. Smith

Contributors to this colloquy are invited to undertake, in light of the recent tumult over the Indiana religious freedom statute, a “cost/benefit” analysis of such legislation. But a plain lesson of that sorry episode, I think, is that the contemporary struggle is not over mundane costs and benefits. Something different—something larger and more portentous—is going on. If we try to understand the controversy in our accustomed terms—of interest balancing, of legal commitments to freedom of “religion” in competition with “secular” governmental interests—we will mistake the real nature of the controversy.

Anomalous and Unjust

By: Ira Lupu and Robert Tuttle

The United States vigorously protects religious liberty. Americans are free to worship as they choose. The government is forbidden to prescribe for any faith the content of prayers, the choice of ministers, or the criteria for distribution of blessings or sacraments.

Contrary to what some scholars have lately been arguing, however, the United States has no broad or consistent tradition of exempting religiously motivated practices from general legal norms. 

Locus, Policy, and Free Will

By: Scott M. Hamberger

Before responding to the questions concerning business and religious freedom, I find it useful to make some observations about the behavior in the two cases cited: the resignation of Brendan Eich as Mozilla CEO, and Abercrombie and Fitch’s (A&F) firing of Samantha Elauf for wearing a hijab. We must consider: i) whether the behavior occurred within the workplace and was connected to job responsibilities; ii) whether the behavior was known to conflict with workplace policy; and iii) whether the subject individual entered (or sought to enter) willingly into an employment relationship conditioned by limitations.

Religious Freedom and Business: A Complicated Relationship

By: Samuel Gregg

Though strong correlations have been made between political and civil liberties and religious freedom, it’s unusual for people to make strong connections between religious liberty and the freedom of individuals and businesses to operate in the economy. More recently, however, increased attention has been given to the ways in which businesses can be impacted by apparent infringements of religious liberty. The recent Hobby Lobby case is one instance in which the Supreme Court of the United States maintained that the religious freedom of a business had been infringed by various regulations associated with the Affordable Care Act.