No One Owns ‘Religious Liberty’

Conservatives have always been great at using language to frame issues. “Family values.” “Pro-life.” “Tax relief.” “Partial-birth abortion.”

In each instance, the right has been disciplined in finding seemingly anodyne words to refer to very loaded policies. The right framing can soften the edges of an unpopular or controversial policy, or use emotion to subvert the other side’s arguments. Who can be against “life”?

Successful framing presents a problem for journalists, who need to pithily explain an issue without taking sides. Using terms like “family values” or “law and order” in a headline can appear to endorse one side’s framing of an issue.

The latest example of conservative framing is the term “religious liberty.” When the Supreme Court ruled last week to strike down Gov. Cuomo’s Covid-19 restrictions on synagogues and churches, Agudath Israel of America — which brought the case — hailed the announcement with a headline reading, “High Court Victory for Religious Liberty.”

In its 5-4 ruling, the court reasoned that imposing certain limitations on houses of worship and not on “‘essential’ businesses such as acupuncture facilities… strikes at the very heart of the First Amendment’s guarantee of religious liberty.”

The Trump administration previously appointed a Religious Liberty Task Force within the Justice Department to make sure that its employees “know their duties to accommodate people of faith.”

But the phrase obscures a deep divide between conservative and liberal interpretations of the Constitution.

Liberals tend to use “religious liberty” to mean a nation where all citizens have the right to worship freely, and where no religion is preferred over another. A landmark case underlining this version of religious liberty was Stone v. Graham (1980), which struck down the mandated display of the Ten Commandments in public school classrooms because such a law provided official support of religion.

Liberals also insist that the Constitution ensures the right of individuals and religious institutions to worship as they see fit — except when they engage with the broader public. In that case, they mustn’t infringe on the rights and religious freedoms of others. Religious liberty stops, argue the ACLU and liberal groups like the Guttmacher Institute, when religious-run hospitals and other institutions seek extensive religious and moral exemptions from generally applicable laws when they provide health care, educational, social service and other programs.

Conservatives use the term in a different way: to embrace these religious and moral exemptions, if certain laws and regulations violate believers’ conscience and free exercise. In practice, that means exemptions from laws meant to protect LGBT rights, same-sex marriage, transgender rights, contraception and, in the Covid case, public health.

That’s the argument of the Christian baker in Colorado who refused to make a cake for a gay couple’s wedding. Religiously affiliated hospitals and health systems invoke religious liberty to seek exemptions from rules on abortion, contraception, miscarriage management, prenatal diagnosis, infertility and end-of-life care.

And that’s religious liberty as understood by Supreme Court Justice Samuel Alito, who recently gave an impassioned speech saying “[r]eligious liberty is fast becoming a disfavored right.” He listed a number of recent cases that have come before the court, from the “protracted campaign against the Little Sisters of the Poor” — Catholic nuns who refuse to allow their health insurance plan to provide contraceptives to their employees — to a rule in the state of Washington that required a Christian-owned pharmacy to carry morning-after pills.

“The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs,” is how Alito framed it.

Guttmacher, by contrast, doesn’t call these cases “religious liberty.” It prefers “institutional refusal.” Argues Guttmacher: “Religious rights — like all rights — must have limits when they threaten the rights, needs and health of others. And because institutions have more power than individuals, their rights must be more carefully balanced and checked.”

I am not going to argue the merits of these arguments, not here anyway. I worry, instead, that glibly using “religious liberty” as either side interprets it does a disservice to readers by prejudging the issue.

Glibly using ‘religious liberty’ as either side interprets it does a disservice to readers by prejudging the issue.

Journalists “have an obligation to the public to be accurate,” writes law professor Marci Hamilton. “‘Religious liberty’ is now an opaque term—often used to mislead as much as to illuminate.” She suggests a distinction between “constitutional religious liberty” – close to the liberal understanding – and “statutory religious liberty” to refer to the conservative framing.

That’s a little subtle for a newspaper article. I would prefer that when using the term, we define it according to the user’s context. If groups or individuals use “religious liberty” to claim exemptions from a law or regulation, we should say so. And if a liberal uses the term to mean the right for people to believe whatever they want, so long as the state doesn’t prioritize religious exemptions over all other rights, we should say that too. No one side should be allowed to own a phrase as hallowed as “religious liberty.”

Andrew Silow-Carroll (@SilowCarroll) is the editor in chief of The Jewish Week.