The Cognitive Dissonance of Religious Liberty Discourse: Statutory Rights Masquerading as Constitutional Mandates

By Hamilton, Marci A. | Harvard Journal of Law & Public Policy, Winter 2018 | Go to article overview

The Cognitive Dissonance of Religious Liberty Discourse: Statutory Rights Masquerading as Constitutional Mandates


Hamilton, Marci A., Harvard Journal of Law & Public Policy


There is a cognitive dissonance in current religious liberty discourse. On the one hand, there are vulnerable groups emerging as strong rights holders in the culture, including LGBTQ, women, and children. On the other hand, there are the religious believers who cannot or will not fit this new social order into their worldview and, therefore, assert rights against it. In fact, the religious liberty "rights" asserted are not constitutional, but rather statutory. (1) It is critically important that our public debate be built on this fact.

Rights for the vulnerable are under attack by some religious actors who have sought to turn religious liberty into a weapon of exclusion, control, and harm. "Cognitive dissonance" is the "psychological conflict resulting from incongruous beliefs and attitudes held simultaneously," (2) and is often experienced as discomfort, which can lead the person to choose various routes away from the discomfort, such as denial or action. (3) As politically powerful religious actors experience unease in a culture they no longer control, there has been a multiplication of demands for extreme religious liberty in the United States, (4) including by law professors as well as national advocacy organizations like the Becket Fund and the Alliance Defending Freedom, (5) who routinely trivialize the costs extreme religious liberty externalizes onto others as their discourse treats all religious liberty as constitutionally required. This is a time of religious triumphalism. The vulnerable are at risk from some religious who insist that their liberty does not end with their own practices but rather expands to include the culture around them. As a matter of public policy, it is necessary to choose between the rights of the vulnerable and the ever-increasing demands--not for liberty, but rather autonomy divorced from responsibility for harm. This is a threat to our peaceful coexistence. For that reason, the United States Commission on Civil Rights' report on religious liberty is correctly titled, "Peaceful Coexistence: Reconciling Nondiscrimination Principles and Civil Liberties." (6) The challenge is to draw the boundary line that squares civil rights for the vulnerable with religious liberty for conduct, and in my view the Report is the best analysis to date, albeit with inadequate attention to the plight of children at risk in religious communities of sex abuse, medical neglect, and educational neglect, as I discussed in my testimony before the Commission. (7)

The recent Supreme Court cases with impact on the religious liberty debate have centered on two of the vulnerable populations: LGBTQ and women. The former was empowered by the Court while the latter were not. According to the Supreme Court, LGBTQ have a right to live lives of love and devotion to family on par with heterosexual couples. (8) The response from religious actors has been a doubling down on demands to exclude LGBTQ from any arena in which they are present including employment and the marketplace of goods and services. (9) Although they do not acknowledge the divided culture they seek, their approach is different in degree but not kind to the former religious liberty of South African apartheid, (10) which was an expression of the Dutch Reformed Church.

Some religious actors have long been fighting the rights of women to obtain contraception and abortion, (11) but the fight has progressed from tactics that are intended to deter abortions to those that empower an employer to deny health care coverage that includes reproductive healthcare based on the employer's religious beliefs, even in a for-profit setting. (12) Now, religious actors aggressively seek two ways to further erode women's rights to personal reproductive care through the institution of sweeping prerogatives on the part of employers, a right to refuse to provide care to women, (13) including in pharmacies, (14) and a right to discriminate against women by permitting an employer to impose a benefits plan that reflects his beliefs without regard to the female employee's health needs or her own faith. …

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