Few Americans oppose religious liberty in the abstract. But what should happen when a general law or policy aimed at advancing the common good unintentionally burdens people of faith?
Historically, Democrats and Republicans alike have supported accommodating or protecting religious citizens. Alas, this one-time consensus seems to be collapsing.
Over the past year, owners of several small businesses have been subjected to ruinous fines for declining to participate in same-sex wedding ceremonies. Relatively few such cases have arisen, and in each instance, multiple vendors were available to provide the desired services.
Nevertheless, activist groups such as the American Civil Liberties Union, along with many leading Democrats, have been adamant that the deeply held beliefs of religious citizens should not be protected.
Those who object to protecting religious liberty in these cases seem to believe that doing so would undermine the good produced by laws banning discrimination on the basis of sexual orientation.
Yet, as I argue in a recent paper for The Heritage Foundation, America has a long and noble history of accommodating religious faith by protecting practitioners from generally applicable laws. The states and the nation as a whole have been able to meet important policy objectives in spite of these accommodations.
In my Heritage essay, I discuss in detail a wide range of accommodations that have been supported by both liberals and conservatives. Here is a brief taste:
Beginning in the 1670s, American colonial governments began to excuse some religious pacifists from military service if they paid a fine or hired a substitute. In the modern era, these accommodations were expanded to permit all religious pacifists to avoid combat service. No one believes that these protections have hampered America’s ability to defend itself.
In the midst of World War II, some schoolchildren refused to salute and pledge allegiance to the American flag for religious reasons. In spite of pleas that state laws requiring these practices were necessary to promote national unity, the United States Supreme Court ruled in 1943 that the First Amendment demanded an exemption for these students. America was still able to win the war.
During Prohibition, religious Americans were permitted to use wine for sacramental purposes. Today, Native Americans are allowed to use the narcotic peyote in religious ceremonies. The abuse of alcohol and drugs has caused great harm, but few would attribute this damage to these accommodations.
In Wisconsin v. Yoder (1972), the Supreme Court famously ruled that Amish families could not be forced to violate their religious convictions by sending their children to public schools. Quakers and others are permitted to affirm rather than swear oaths, in spite of concerns that allowing them to do so poses a risk to the integrity of the judicial system.
National and state laws regularly protect doctors and nurses from being forced to provide most abortions and other services to which they have religious objections. Pharmacists in some states may refuse to fill prescriptions for abortion-inducing drugs if they have religious objections to doing so. There is little evidence that patients have been harmed by these protections.
Even the famous Civil Rights Act of 1964 contains important religious accommodations, ones supported (at least for the time being) by groups such as the American Civil Liberties Union and Americans United for Separation of Church and State.
Of course, not all religious convictions can be accommodated. In the essay, I discuss criteria that historically have been used to discern when religious convictions should, and should not, be protected.
Reasonable people can disagree about where to draw lines in some cases. If American history is any guide, however, bakers, florists, and photographers should not be forced to participate in wedding ceremonies against their religious convictions.
