By Audrey Ackerman*
Religious liberty is a fundamental part of our law, politics, and individual morality. In pursuit of protecting that liberty, religious lobbying groups have long been non-obvious actors that work to affect lawmaking at the state and federal level.[i] As of 2010, 215 religious advocacy groups were registered in Washington and collectively spent over $350 million on lobbying efforts.[ii] This religious institutionalism has two foci: protecting religious liberty and enhancing democratic participation.[iii] In practice, religious lobbying undermines both of its goals by equating fact and opinion. Holding a religious truth to be as universal as a scientific truth undermines our democracy by eroding the foundation for responsible legislation and policy. It forgets the diversity of beliefs in America and applies religious liberty exclusively to religious majorities, not to everyone.
While the religious lobby cites the Firsts Amendment’s Free Exercise Clause to enact laws that reflect their values, the Supreme Court has sometimes acted as a buffer to balance universal liberties.[iv] This tension is illustrated in the passage of the 1993 Religious Freedom Restoration Act (RFRA). This law was intended to “ensure that interests in religious freedom are protected.”[v] RFRA was a direct response to Employment Division v. Smith, in which the Supreme Court held that there was no constitutionally mandated religious accommodation from generally applicable and neutral laws.[vi] Religious interest groups such as the Christian Legal Society, the American Jewish Congress, and the National Association of Evangelicals pushed for higher protections under RFRA.[vii] The new “compelling interest test” balanced religious liberty and government interests by requiring that governments should not substantially burden religious exercise without compelling justification pursued in the least burdensome way.[viii] While RFRA’s language is inclusive, in practice it is used to defend majoritarian religions, often at the expense of minorities and secularists.[ix]
When the Supreme Court limited RFRA’s application exclusively to the federal government in City of Boerne v. Flores, religious lobbies began focusing on state action.[x] To date, 21 states have enacted their own versions of RFRA.[xi] One of the recent passages of RFRA was in Indiana (INFRA). While based on the 1993 version, INFRA expanded to include (1) freedom of exercise for unaffiliated for–profit corporations, rather than only individuals and religious organizations;[xii] (2) preemptive invocation of the religious liberty right if it is likely to be substantially burdened by government action;[xiii] (3) religious belief use as a claim and a defense, whereas RFRA only used it as a claim.[xiv] These three changes cumulatively act to protect any person, group or organization that discriminates on the basis of religion. In 2015, then Governor Mike Pence signed the act into law, surrounded by religious leaders and lobbying groups.[xv] The state’s most prominent lobbyists for conservative values were present: Micah Clark of the American Family Association of Indiana, Curt Smith of the Indiana Family Institute, and Eric Miller of Advance America.[xvi] All three lobbyists have consistently supported laws that value certain religious beliefs over the civil rights of others, particularly the LGBTQ+ community, opposing statewide anti-discrimination laws.[xvii] In attempting to protect their religious liberties, the lobbyists undercut LGBTQ civil rights by creating a law that allows the queer community be discriminated against on the basis of religion.[xviii] Moreover, INFRA undercuts their ability to address discrimination effectively in court. [xix]
In some states, this religious freedom has extended to the classroom. In Louisiana, the Science Education Act of 2008 uses a “wedge strategy” advocated by the Discovery Institute, a religious lobbying group.[xx] This strategy encourages teachers to use materials critical of scientific thought to function as a wedge to make scientific “materialism” appear dubious and to promote intelligent design in its stead.[xxi] The justification for this is to give students critical thinking skills.[xxii] The wedge method ultimately is a way to circumvent a 1987 ruling which held that state law requiring creationism to be taught in science classes was a violation of the Establishment Clause.[xxiii] In practice, wedge strategy education encourages students to distrust the scientific method and to accept biblical allegory as the truer alternative.[xxiv]
This equating of fact and opinion is echoed in the highest office of our country. The Trump Administration, which includes now Vice President Mike Pence, is actively seeking to expand specific religious liberties. In May of 2017, President Trump signed an Executive Order Promoting Free Speech and Religious Liberty which instructed IRS officials not to enforce the Johnson Amendment.[xxv] The Johnson Amendment is a 1954 provision that was added to the tax code and prohibits charitable nonprofits, such as churches, from endorsing or opposing political candidates, at the risk of losing their tax exempt status.[xxvi] The objective of this amendment was to minimize the involvement of partisan non-profits in policymaking.[xxvii]
The effect of this Executive Order on the enforcement of the Johnson Amendment to date is unclear. What is clear is that the beliefs of religious majorities have become an accepted basis for legislation. This legislation effects what is taught as fact in the classroom. It effects individual access to medical care and civil rights. It effects how free you are to practice a religion, or to practice no religion at all. Religious institutionalism attempts to extinguish religious difference by holding up one group’s beliefs as factual and universally true. This undermines religious liberty because it treats the religious opinions of others as untrue. It undermines democratic participation because it constructs laws that force opinions on many unwilling or unwitting Americans.
True liberty does not apply to just one person, or even just to the majority. It applies to everyone. It requires an acceptance of different opinions and to distinguish these opinions from facts. The danger of basing legislation and regulation on opinion is that it can be used to infringe on the liberties of others. The danger of using opinions to make decisions rather than using facts is that it will create a society with no common basis for representing its citizens, legislating fairly, and improving as an informed democracy.
*Audrey Ackerman is a Junior Editor on MJEAL. She can be reached at firstname.lastname@example.org.
[i] Zoë Robinson, Lobbying in the Shadows: Religious Interest Groups in the Legislative Process, 64 Emory L. J. 1041, 1043 (2015).
[ii] Pew Forum on Religion and Public Life, Pew Research Ctr., Lobbying for the Faithful: Religious Advocacy Groups in Washington, D.C. 13-14, 55 (2012), http://www.pewforum.org/files/2011/11/ReligiousAdvocacy_web.pdf.
[iii] Robinson, supra note 1, at 1045.
[iv] Id. at 1079.
[v] Burwell v. Hobby Lobby Stores Inc., 134 S. Ct. 2751, 2751 (2014).
[vii] Louis Fisher, Religious Liberty in America: Political Safeguards 80 (2002).
[viii] Sherbert v. Verner, 374 U.S. 398, 403 (1963).
[ix] Robinson, supra note 1, at 1083.
[x] 521 U.S. 507 (1997).
[xi] National Conference of State Legislatures, State Religious Freedom Restoration Acts (May 4, 2017), http://www.ncsl.org/research/civil-and-criminal-justice/state-rfra-statutes.aspx.
[xii] IND. CODE ANN. § 34-13-9-7 (West 2015).
[xiii] IND. CODE ANN. § 34-13-9-9 (West 2015).
[xv] Tony Cook, “Who attended religious freedom bill signing? Gov. Pence’s office won’t say,” IndyStar (March 26, 2015), https://www.indystar.com/story/news/politics/2015/03/26/attended-religious-freedom-bill-signing-gov-pences-office-say/70511374/.
[xvii] Id. See generally Report from the Southern Poverty Law Center, The Anti-Gay Lobby: The Family Research Council, the American Family Association & the Demonization of LGBT People (Oct. 7, 2011), https://www.splcenter.org/sites/default/files/d6_legacy_files/downloads/publication/Anti-Gay_Lobby_final.pdf.
[xviii] Katy Steinmetz, The Debate Over What Indiana’s Religious Freedom Act Is Really About (March 31, 2015), http://time.com/3764347/indiana-religious-freedom-discrimination-act/.
[xx] Louisiana Science Education Act, LA. STAT. ANN. § 285.1 (2008) [hereinafter Science Education Act].
[xxi] Discovery Institute, The Wedge Strategy (1998), https://ncse.com/creationism/general/wedge-document.
[xxii] Science Education Act, supra note 10.
[xxiii] Edwards v. Aguillard, 482 U.S. 578 (1987).
[xxiv] Discovery Institute, supra note 11, at 2
[xxv] Exec. Order No. 13798, 82 Fed. Reg. 21, 675 (May 9, 2017).
[xxvi] Miriam Valverde, “Trump Claims He Got Rid of the Johnson Amendment. Is That True?”, PolitiFact (July 18, 2017), http://www.politifact.com/truth-o-meter/statements/2017/jul/18/donald-trump/trump-claims-he-got-rid-johnson-amendment-true/.