Competing Freedoms: Freedom of Religion and Freedom of Sexual and Reproductive Liberty in Pluralistic Societies

By Ravitch, Frank S. | Contemporary Readings in Law and Social Justice, July 1, 2017 | Go to article overview

Competing Freedoms: Freedom of Religion and Freedom of Sexual and Reproductive Liberty in Pluralistic Societies


Ravitch, Frank S., Contemporary Readings in Law and Social Justice


1. Introduction

Recent events in Arizona, Arkansas, Georgia, Indiana, Michigan, Missouri, and New Mexico, along with the Supreme Court's recent decision in Obergefell v. Hodges2, have resulted in a national debate often pitting religious freedom against the civil rights and civil liberties of the LGBT community. This controversy follows closely on the heels of the Supreme Court's decision in Burwell v. Hobby Lobby3, which set off a firestorm over the balance between reproductive rights and religious freedom. Both conservatives and progressives have raised the level of hysteria. The media has been happy to oblige. Television and radio news programs, newspapers, magazines and the blogosphere are filled daily with reports of discrimination by one or both sides. We have entered a new, and heretofore unparalleled, battle in the culture wars. Of course, the framing of this controversy ignores one central fact: religious freedom and strong civil rights for all can coexist when properly understood.

The stakes are high. For one side fundamental civil and human rights are involved. For the other fundamental civil liberties are involved. This conflict, however, can be resolved. In fact, in most situations the conflict has been manufactured by partisans on both sides of the culture wars. Coexistence is possible, and it is necessary for the survival of the United States as a nation of freedom for all.

2. Freedom of Religion and Freedom of Sexual and Reproductive Liberty in Pluralistic Societies

The main allegations made by progressives against religious freedom claims in recent years arise from attempts by conservatives, courts, and legislatures to accommodate claims brought by for-profit entities and entities that serve the general public (including government entities). The Supreme Court's recent decisions in Obergefell v. Hodges and Burwell v. Hobby Lobby, and recent state legislation, have brought this to a head. Yet, protection of for-profit entities and those that serve the general public leads to many of the claims that religious freedom acts support discrimination against the LGBT community and reproductive freedom. The answer for government employees is more nuanced because it may be possible to accommodate them if doing so would cause no delay in services or inconvenience for members of the public they serve.

Yet, arguing that for-profit entities and some government officials should not be protected by religious freedom principles is deeply troubling to many people of faith. After all, for many people of faith, life is not separable into segments, some with faith and some without. Religion is at the core of their being and influences everything, including the businesses they build and run. Religion is not left at church on Sunday, Synagogue on Shabbat, or Mosque on Friday.

Ironically, this is something that progressives should be able to identify with. Progressives don't leave their values at rallies and speeches. They take them everywhere and those values are part of their being. There is an irony in the way that progressives often write off faith based commitments as base discrimination rather than understanding the trauma that occurs when law and society reject those faith commitments and require behavior that is in conflict with them.

The side asserting that religious freedom claims and Religious Freedom Acts lead to discrimination has vastly oversimplified these issues, and created a strawman that is easy to take down without a deeper understanding of religious freedom. Similarly, some religious freedom advocates have used religious freedom claims as a way to oppose LGBT rights in public accommodations and reproductive rights in employer benefit plans, without considering the impact and nature of such claims in their historical context. As a result, we have a battle against straw-men on both sides; a battle from which little good can come.

The recent media firestorm over Religious Freedom Acts has mostly ignored the history and meaning of religious freedom. …

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