This past June, the Supreme Court handed its latest victory to religious interests in the case Fulton v. City of Philadelphia, Pennsylvania, the most recent in a series of rulings expanding the scope of freedom of religion under the First Amendment. The Court unanimously sided with Catholic Social Services, an organization that did not recognize marriages between same-sex partners and refused to certify them as foster parents, allowing the organization to retain their place as an official foster service provider for Philadelphia. The case is yet another in the trend of organizations, corporations, and individuals using religious liberty to justify discrimination — over the past decade, an unprecedented series of ‘wins’ for religious freedom have threatened some protections against employment discrimination, allowed the refusal of service to LGBTQ+ people and weakened access to reproductive healthcare. We as a society must more specifically define what religious freedom is and is not and combat its use to harm marginalized communities.
Freedom of religion is, of course, an important right, but rights are limited for a reason. In this case, it is clear that CSS was engaging in discriminatory behavior. It is not even a requirement that one be married in order to be a foster parent, according to the non-profit Pennsylvania State Resource Family Association, so why should being a part of a nontraditional marriage be considered a barrier? Furthermore, CSS’s discriminatory policy, far from being merely a stand on principles, directly harms LGBTQ+ foster children. They are already overrepresented in the foster care system, and evidence has shown success in placing these youth in LGBTQ+ homes. CSS’s barring of gay and lesbian couples not only discriminates against them and diminishes the amount of welcoming homes available to at-risk youth, it also perpetuates future discrimination and stigma against queer individuals, deeming them unworthy of raising children, a role which many hold fundamental.
Religious freedom has been weaponized to support discrimination by actors other than the Supreme Court. The Trump administration issued several new Health and Human Services regulations that supplemented already-existing religious exemptions for healthcare professionals while repealing some Obama-era protections for women and LGBTQ+ patients. These rules limited patient access to healthcare and information related to abortion, sterilization, and gender-transition surgery. In another example, the Catholic hospital Dignity Health refused to provide a hysterectomy to a transgender patient — citing religious reasons — despite allowing the procedure for cisgender patients. In addition, due to the fact that a majority of Catholic hospitals are not transparently Catholic, according to a report from the Center for American Progress, women often do not find out that they cannot receive services such as a tubal ligation until they are already in labor or an abortion unless they are having life-threatening pregnancy complications. Religious beliefs should not take precedence over peoples’ health and wellbeing.
Freedom of religion has also been co-opted by corporations as a means to limit the rights of their employees. In 2014, the Supreme Court decision in Burwell v. Hobby Lobby upheld corporations’ ability to use the First Amendment to justify their refusal to provide otherwise legally mandated contraceptive health care to their employees. The religious rights of a for-profit corporation were and are deemed more important than the worker rights of actual people. In addition, in Our Lady of Guadalupe School v. Morrissey-Beru, the Supreme Court barred claims of employment discrimination by former Catholic school teachers because, the Court found, they counted as “ministers” and the church had large leeway to fire them. These teachers were alleging age- and medical-based discrimination, but because of a “ministerial exemption” that the Court applies to discrimination law, these claims weren’t even heard on their merits. The ruling’s result is that employees in roles even vaguely related to religion forego protections against discrimination based on arbitrary, non-religious reasons, so long as the discrimination comes from a religious institution. As Justice Sonia Sotomayor stated in her dissent, the decision allowed religious groups to “discriminate widely and with impunity for reasons wholly divorced from religious beliefs.”
In all of these cases, under the guise of religious freedom, conservative Christians have furthered their own interests at the expense of traditionally marginalized groups including women, people of color and LGBTQ+ individuals. However, we can stop this misuse of religious liberty. A place to start comes in the form of the “Do No Harm Act.” Introduced in the House of Representatives on Feb. 25, the act would clarify the Religious Freedom Restoration Act, an earlier piece of legislation that was passed with bipartisan support to protect religious rights, but that has since been reinterpreted and expanded to allow discrimination, such as in the Burwell v. Hobby Lobby case. The “Do No Harm Act” would outlaw exemptions to civil rights legislation that would result in harm to third-party, often vulnerable groups of people, restoring a narrower interpretation of the RFRA that protects religious freedom without allowing it to warrant discrimination.
A few smaller pieces of policy change can also help combat this religiously justified discrimination. For one, hospitals should be required to list the services that they do not provide because of religious reasons in an accessible place. Legislation that would close the loophole allowing for-profit corporations to subvert anti-discrimination laws for religious reasons is also necessary. In addition, the Equality Act —another piece of anti-discrimination legislation that passed the House of Representatives in February — would provide a framework of protections for LGBTQ+ people in areas including employment, housing, loan applications and education.
Resolving religious freedom with anti-discrimination protections also doesn’t have to entail a protracted legal battle ending in a Supreme Court case — a more collaborative approach can prevail. Local interfaith councils and task forces have proved to be successful avenues for communication between government and religious groups. These allow the two to work together at a local level, listening to one another, and allowing inclusive conversations coming from a variety of different beliefs. They also create opportunities for Christians to communicate better with non-Christians and find common ground.
I am a strong proponent of freedom of religion in that I believe every individual should be able to believe what they want to and practice religion how they see fit. However, this country’s ever-expanding definition of religious liberty has grown to the point where it allows one person or group’s beliefs to constrain others’ rights — and that is indefensible. Religious freedom isn’t a free pass to inflict harm on others. We must properly manage all our rights and liberties, allowing religious freedom and equal treatment to exist in harmony without the former strangling the latter.
