Finding the Judicial Balance for the Freedoms of Faith

About the Author: Bennett Briggs was born in California and raised in Rexburg, Idaho. Bennett graduated cum laude from BYU-Idaho with a BS in Communications and from the J. Reuben Clark Law School at BYU with a Juris Doctor. During his tenure at BYU, Bennett worked as a student fellow for the International Center for Law and Religion Studies where he wrote numerous articles, book chapters, U.S. Supreme Court briefs, and other academic works on law and religion. He has been a contributing writer and editor for the Encyclopedia of Law and Religion, Religion and Law in the USA, and the second edition of the seminal Legal Treatise Religious Organizations and the Law. Bennett currently practices law in Pocatello, Idaho.

The Supreme Court of the United States has long held that an individual’s freedom of expression and belief should be respected and given great deference; after all, our country was first settled by people fleeing religious oppression. The first amendment to the Constitution solidifies these rights and grants all citizens the right to worship how they please.

These rights, to a large extent, have held fast over the last 200 plus years. Waves have washed along the shore and eroded some pillars, but the legal protections that individuals and religious organizations have are well established and generally well respected. Numerous books and entire law school courses are built upon the Amendments, laws, and Supreme Court cases dealing with religion and religious organizations. The legal standards which apply, the burden of proving a case, and the level of scrutiny the Court will utilize are likewise broad and worthwhile topics. This article however seeks to present a bird’s eye view of the protections, but also the tensions, that exist in the legal realm of religious liberty.

From an institutional standpoint, the Supreme Court has long held that government bodies have no place or oversight abilities when it comes to the internal governance of church organizations1. Religious organizations are free to choose who their leaders are and make other internal church law and doctrinal decision without fear of government interference. That principle has been extended to include decisions made by a Church in relation to employment decisions in their secular non-profit activities2 as well as activities that are public and private/ religious and secular.3 Recently, the Court has even found that for-profit corporations can invoke religious protections in their business activities.4

From an individual worshipper’s standpoint, the same protections generally apply. A person is free to worship how, where, and when they please. With such robust and broad protection however come some difficult situations. Inevitably, circumstances arise where one person’s religious beliefs conflict with someone else’s, with a rule or law, or even with the federal government. In these circumstances the results are generally in favor of the individual, such as when a prisoner is allowed to grow a beard for religious reasons even though such is against prison regulations,5 or when a company is found to violate civil rights laws for not accommodating an employee’s hijab even though such is contrary to company dress code.6 Other times however, individual’s beliefs and actions are found to be inferior to a greater or more important goal such as when the Court ruled that a person cannot break federal controlled substance laws even if doing so was simply an expression of religious beliefs.7

When the government is an actor in a case, or constitutional issues are in question, certain standards apply. These are fairly well established and recognized by the Courts. In recent years however, the focus has shifted to the interactions between people – individual citizens – in life, in business, and in daily interaction one with another. It is the situations that arise surrounding “the bakers, the Quakers, and the candlestick makers” and perceived discrimination (on either side) which do not have the precedence8 that other legal forums have.

Attributed to many in early American legal history is some iteration of the admonition that “the right to swing ones first ends where the other man’s nose begins.” More and more, people of faith are finding themselves in tense conversations and interactions where it is increasingly difficult to stand their ground without feeling defensive, or in the alternative, overbearing. People who act in conformity with their sincerity held beliefs are more frequently being viewed as bigots and having lawsuits levied against them for the practice of their religion.

Individual’s rights are constantly conflicting, but one should not be expected to flee and live in the wilderness in order to exercise those rights. People of differing faith traditions, or no faith tradition at all, must figure out a way to coexist. It is interesting to note that in a world in which acceptance is the new age, progressive, innovative, and forward thinking approach, acceptance of religion and religious viewpoints is often left out of the program or suppressed.

Where is the balance though and what is to be done in these situations? What people should not do is draw a hard and fast line in the sand and sit there silently, arms crossed, chest puffed, and lips pursed waiting for someone to cross that line so they can punch them in the face or sue. Such a course of action is rarely helpful. If people create a zero-sum game someone will always lose, and usually they will lose big.

One issue that non-religious people may not fully understand is that for religious people some of these things are non-negotiable. If that means closing a business or changing a profession, a religious person may very well opt to do that rather than violate their conscience. But should they have to? Legally, sometimes the answer may have to be yes. But legal action or reaction should never be a tool to force someone to do something that encroaches upon their beliefs. In these regards we have ultimately seen that people would rather get out of their business than get out of their religion. One only need look to the wedding industry to see this difficult battle raging. In recent years bakers, photographers, and florist have been forced out of business because their decision to stand up for their own rights was seen as not validating someone else’s. Sadly these situations have rarely resulted in fair and equate treatment for religious people.

Other people who have opted out of requirements in their workplace, such as not providing certain jobs or services have been marginalized and censored to the point of either quitting or conforming. Similarly, numerous faith-based organizations have elected to discontinue certain endeavors in order to ensure that their beliefs are not met with claims of discrimination. One example is adoption agencies run by the Catholic Church and Church of Jesus Christ of Latter-day Saints who elected to close their doors rather than face the potential backlash, social and legal, that would certainly have ensued.

If however, instead of creating a barrier that will only allow one side to be heard, good people should create a space where both sides can feel comfortable together. Neither side will get everything they want, but neither will be left out in the cold. An excellent example of this is what happened in Utah in early 2015. As growing concern for the protection of LGBT rights in housing and employment grew, so did the concern for religious personnel in their employment responsibilities. In order to strike this balance, members of the Utah Legislature, the Church of Jesus Christ of Latter-Day Saints, LGBT advocacy groups, and other legal and academic scholars worked together to provide an option which allowed both sides to feel that they were being recognized and protected. Did either side get everything that they wanted? No. But both sides are now able to live in relative peace. So too must our discussions and disagreements be. Creativity, not contention, will help balance differing positions without discrimination or the marginalization of either side.

Such a course of action is not unique to Legislative bodies. Although highly publicized initially, the final decision of a recent Supreme Court case sadly went mostly unnoticed by the general public, but illustrates this point well. The case, commonly referred to by one of the plaintiff’s organizations, “Little Sisters of the Poor,” was brought by numerous faith-based groups seeking relief from government requirements to provide contraceptives to employees. In a unanimous decision, the Supreme Court set aside the rulings of the lower courts, which would have required such organizations to provide these services against their religious beliefs, and ordered the parties “to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full and equal health coverage… .”9 This ruling, from the highest legal body in the United States, further demonstrates the ability, and responsibility, that opposing sides have to find a way to “make it work” and protect all involved.

Although the legal tension that exists between religious organizations or individuals and other competing interest, groups, or laws is far from being a settled area of law – and frankly much more could be said about the social stigma, media coverage, political influence, religious censorship, and general public perception on the topic10– when circumstances have reached the highest levels of the judicial system, individual rights have been protected, organizational authority has been respected, and groups have been asked to find ways to work it out rather than fight it out. So while the future of religious freedom seems dire at times, it is this author’s hope that people of goodwill everywhere can continue to finds ways in which they can accommodate each other rather than sue each other and that the judicial system will continue to recognize the benefits of protecting our most foundational and fundamental rights.

1. Serbian Orthodox Diocese v. Milivojevich, 1976.

2. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 1987.

3. Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, 2012.

4. Burwell v. Hobby Lobby Stores, Inc., 2014.

5. Holt v. Hobbs, 2015.

6. Equal Employment Opportunity Commission v. Abercrombie and Fitch Stores, Inc., 2015.

7. Employment Division, Department of Human Resources of Oregon v. Smith, 1990.

8. That is not to say that a principle such as discrimination is not well-established. Discrimination is very well established, but in the realm of competing rights such as religion and identity - as such battles are fairly new - the history and long-standing rule of law that is so vital in other legal areas is not yet present here.

9. Zubik v. Burwell, 2016.

10. Religious freedom seems to be under attack and a topic of discussion more and more frequently as of late and those political, social, economic, and legal arguments deserve more than passing reference. This paper therefore sought to illustrate from “10,000 feet” the general climate and approach to the status of religion and religious persons in the law. There are numerous other areas where these tensions are just now coming to a head. Education, employment, other services, and even sports are all areas in which religious groups or faith based organizations are seeing an increase in pressure and even litigation when they take a stand.

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