Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Religious Freedom vs. Civil Rights

Stanley Carlson-Thies


Religious Freedom vs. Civil Rights
By Stanley Carlson-Thies

The claim is being made more and more often: when a religious organization asserts its religious freedom right to exempt itself from a general government rule, civil rights critics say that the organization actually is seeking to oppress people who don’t share its convictions.  The ACLU says that is what is happening when Catholic hospitals won’t perform elective abortions. Sara Kohn argues that when Hobby Lobby does not want to cover certain contraceptives in its employee health plan because of religious conviction, it is actually trying to “contort government to impose the religious views of some onto many.” A Political Research Associates report by Jay Michaelson earlier this year makes the same argument right in its title:  “Redefining Religious Liberty: The Covert Campaign Against Civil Rights.”

No doubt there are actual clashes between religious freedom and civil rights. In the 1980s, the Supreme Court ruled against Bob Jones University’s First Amendment religious freedom claim against federal policy prohibiting racial discrimination, saying that the constitutional right to racial equality trumps even a religiously motivated violation of such equality.  On the other hand, when Hosanna-Tabor Lutheran School asserted a right to insist on church mediation against a teacher’s lawsuit to enforce her disability rights, the US Supreme Court unanimously ruled in 2012 in favor of the church, saying that the First Amendment’s Religion Clauses created a ministerial exception to civil rights laws. 

More commonly, though, what is at stake is a contest between individual and institutional rights and between uniformity and pluralism.  The Catholic hospital might hope for a national policy forbidding all elective abortions, but what it actually is seeking is only the freedom not to perform such abortions itself.  Because elective abortions are broadly legal and many medical personnel, citizens, and organizations favor their availability, what the Catholic hospital declines to provide is usually available via some other hospital or clinic. 

Hobby Lobby is neither deploying its resources to get a federal law that outlaws contraceptives nor forbidding its employees to use contraceptives. It only asks that, as a company whose policies and services are thoroughly shaped by religion (as evidenced by its stores being closed on Sundays, generous wages, massive contributions to religious charities, chaplains on staff, commitment not to sell certain products), it be permitted not to facilitate drugs and procedures through its employee health coverage that the business owners are convinced end nascent life.  

And when a faith-based adoption or foster-care agency seeks to place a child in a Christian family rather than with a same-sex couple because of its biblically grounded conviction that children are best raised by a married mother and father, it isn’t preventing the same-sex couple from opening its home to a needy child, nor preventing a cohabiting opposite-sex couple or an atheist family from adopting or fostering a child.  Other agencies are glad to serve these other families; indeed, the Human Rights Campaign offers a comprehensive program to help child welfare agencies become LGBT-friendly.

In short, when religious organizations ask for the freedom to maintain for themselves and their organizations their distinctive faith-shaped practices and conduct guidelines, they are neither asking for nor receiving the ability to compel everyone to follow those practices and guidelines.  On the other hand, when civil rights advocates insist that the law must require those religious persons and organizations to ignore their convictions and follow instead different standards, then indeed, everyone is being forced to follow some people’s convictions.

Religious freedom, too, is a civil right and it, too, deserves respect. When deep differences of conviction arise and we are to avoid one or another kind of imposition on conscience, government policy will work best when it strives to be pluralistic, accommodating different practices.  That means not all individuals will consider themselves welcome in or well-served by every organization in our society. On the other hand, if organizations are forced to be uniform, many job seekers will be unable to find a workplace that fits their convictions, and many patients and clients and customers will discover there is no business or nonprofit able to serve them as they desire. If diverse convictions, then diverse organizations.  That is public justice and fairness, not religious imposition.

-  Stanley Carlson-Thies is the president and founder of the Institutional Religious Freedom Alliance. He also serves as a Fellow of the Center for Public Justice.

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