Constitutional Law

The Effort To Turn Free Conscience Liberty Into An Oxymoron

For some religious conservatives and this current administration, free conscience liberty somehow means they can force unwilling others to practice their beliefs.

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I am continually astounded to hear religious conservatives farcically claim that the free exercise of religion is under some kind of great threat here in the United States. Because the simple fact is our constitutional Free Exercise guarantee possesses more enumerated protection today than at any other point in U.S. history. Federal statutes such as the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the more well-known Religious Freedom Restoration Act (RFRA) have expanded free conscience protections beyond what even the First Amendment requires.

The positives to this increased protection is that having a robust free exercise guarantee is an essential element to James Madison’s superior vision of constitutional free conscience liberty. There exists, however, another equally essential element to constitutional free conscience liberty: anti-establishment liberty. Unlike the Free Exercise clause, however, the Establishment Clause is something religious conservatives despise and the result has been a modern dismantling of original anti-establishment liberty.

In the New York Times, Linda Greenhouse has offered a fantastic examination into how Establishment Clause protection “has shrunk noticeably at the hands of the current supreme court.” Because of this steady retraction, Greenhouse is deservingly skeptical about anti-establishment liberty in the future:

The court will face another Establishment Clause test, which it will predictably fail, in a year or so when it confronts the Trump administration’s Religious Exemption Rule. This rule grants employers who have religious objections to birth control an opt-out from the Affordable Care Act’s mandate to cover contraception in the employee health plan. The rule represents a metastasis from the Supreme Court’s Hobby Lobby decision in 2014, which granted an exemption on the understanding that female employees would get their birth-control coverage directly from the employer’s insurance carrier. But the Trump rule offers no such workaround. Women with the misfortune to work for anti-contraception employers will become second-class citizens, their statutory right to full health care benefits sacrificed to protect the boss from complicity in the sin of birth control.

In other words, according to this administration, free conscience liberty means not only allowing individuals to exempt themselves or their business from general applicable laws (which can be constitutionally acceptable), but that individuals can force others to be exempt from laws even when they don’t share the same beliefs. For what should be obvious reasons, this new rule represents a complete and total perversion of free conscience liberty.

It is also altogether unnerving that religious conservatives would not be satisfied with their complete exemption from providing certain birth-control coverage but would then begin to feel their faith must extend over others who do not share their beliefs. Even more striking is that Greenhouse is likely correct that we cannot expect this Supreme Court to ever provide any sort of check on this absurdity. In fact, while the Court has readily accepted exempting Christians from government extractions, the Court is widely expected to allow government to forcibly extract money from citizens, over the objections of the irreligious and those of different faiths, to pay for the continual maintenance of once-private Christian monuments. But apparently, we now have to add onto the pile of incongruity the attempt by the current administration to redefine free exercise liberty as some kind of weapon to deny the statutory rights of others.

As long as religious conservatives continue their delusional persecution complex we can expect more bad law and attempts to destroy original free conscience liberty in the future. Indeed, every generation has had to confront a significant group of American Christian conservatives who want to redefine freedom of conscience in their favor at the expense of everyone else’s liberty (see the Blaine Amendment). Which is why Greenhouse is also correct that we need to start making the Establishment Clause more integral within “our working civic vocabulary” moving forward.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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