“Religious liberty” has become an excuse for attempts to restrict abortion and LGBTQ rights.
Among other things, the Trump administration has cited religious freedom in its efforts to empower anti-LGBTQ discrimination by federal contractors and let medical providers deny reproductive healthcare. Even before Trump, a web of state and federal laws have protected providers who object to services like abortion and contraception—and almost never protected those whose beliefs might inspire them to offer such services. Meanwhile, well-funded right-wing groups like the Alliance Defending Freedom and the Becket Fund for Religious Liberty have used religious arguments before the Supreme Court to defend a Colorado baker who refused to bake a wedding cake for a same-sex couple, and to win the right of for-profit corporations to deny contraception to workers.
But a varied cohort of people has been trying to reclaim religious liberty for more progressive causes.
Scott Warren with the group No More Deaths cited his religious beliefs to defend himself against felony charges after he was arrested last year for giving food and water to migrants in the Arizona desert. In Maine, a peer addiction recovery coach founded the Church of Safe Injection last year “to spread the gospel of harm reduction” by handing out overdose reversal medication and clean needles to people with addiction, even though it's illegal in Maine to have more than 10 syringes without a certification. In Georgia the same year, a group of Catholics broke into a nuclear base and marked it with their own blood to protest the threat of nuclear war.
This year, the City of Baltimore challenged the Trump administration’s “gag rule” banning recipients of Title X family planning funds from discussing abortion. The City claimed that the ban would violate the legal rights of doctors whose religious beliefs require them to counsel patients on all of their options. And as part of the multiyear fight against the Dakota Access Pipeline, members of the Standing Rock Sioux Tribe cited their religious beliefs to try to protect their land. For decades, people of faith have fed the homeless, defended marriage equality, and helped patients obtain abortions before it was legal because of their religious beliefs about charity, equality, and freedom of choice. And, in the case of the Satanic Temple, members argue that they shouldn't be subject to abortion restrictions that conflict with their views on bodily autonomy.
These stories are part of a new report out today that shows how groups are reclaiming religious freedom from the Christian right.
"I think the biggest overall takeaway is just to stop seeing religious liberty as a conservative value, as something that really only matters to conservatives and is really only relevant to this narrow band of claims related to LGBTQ rights and abortion,” said Elizabeth Reiner Platt, director of the Law, Rights, and Religion Project at Columbia Law School and lead author of the report.
While the Christian right has “positioned itself as the sole defender of ‘religious liberty,’” the report, titled "Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right," reveals how its efforts have in fact advanced a much narrower agenda: “conservative Christian hegemony.”
Last year, for example, Trump signed an executive order rolling back rules intended to protect the religious liberty of people who use government-funded programs by preventing these programs from pushing their religious beliefs on clients. This and other actions by the Trump administration, the report argues, have diminished religious freedom by allowing one group to impose its religious views on others. “By and large, what these policies are doing are really undermining religious liberty,” Platt said.
And while the Christian right has used religious arguments to win broad exemptions to a range of laws in recent years, social justice activists “have only rarely succeeded” with similar claims, the report acknowledges. This history of limited success has prompted some advocates of church-state separation to caution against the strategy of pursuing religious exemptions for politically progressive causes.
“A results analysis reveals pretty clearly that the tendency, and what will happen the most, is religion and the idea of religious freedom will be misused to maintain traditional power structures, not to advance social progress,” said Rachel Laser, president and CEO of Americans United for Separation of Church and State. “We've seen religion used to justify slavery, religion used to fight civil rights, religion used to keep women down, and now religion used to turn back the clock on LGBTQ equality.” But using religious freedom as a legal strategy hasn't worked out so well for people on the left.
Laser said that while she doesn't object to political advocacy motivated by religious beliefs, she does object to anyone seeking exemptions to the law for political causes, in part because it gives unfair weight to those who act out of religious, rather than secular, convictions. As the report notes, many on the religious left, including Dr. Martin Luther King Jr., have used civil disobedience, accepting punishment to draw attention to the injustice of laws, rather than seeking exemptions to them, as Scott Warren and others have done. (Jesse Harvey, founder of the Church of Safe Injection, intends to argue for a religious exemption to federal drug laws in order to open a safe injection site.)
Elizabeth Sepper, a professor at the University of Texas at Austin School of Law and a leading scholar on religious freedom, echoed Laser’s concerns. "Religious liberty arguments can marginalize people who are not religious, and we know that atheists are actually among the most despised groups in America,” Sepper said.
But Sepper and Laser praised the larger message of the report—that religious freedom is not the exclusive domain of the Christian right. “Overall, it may be both healthy and necessary to illuminate the spectrum of religious beliefs and the importance of religion for people who might be thought of as on the left or progressive rather than conservative,” Sepper said.
While social justice activists who cite their religious beliefs have seen few legal victories, their efforts have at times shifted the conversation on religious freedom.
"Even if the litigants aren't winning in court, they can use this as an opportunity and a platform to really talk very sincerely about their faith, and about what is motivating them to pour vials of their own blood on nuclear weapons, or what is behind their motivation to be leaving jugs of water in a place where there are dozens and dozens of people dying from dehydration," Platt said.
Sometimes these efforts have helped to enforce the separation of church and state. After the state of Oklahoma erected a statue of the Ten Commandments outside the Oklahoma State House several years ago, the Satanic Temple famously announced it would erect an eight-foot monument to the goat-headed deity Baphomet on the same grounds. Before the Temple could unveil its statue—which featured two children gazing up at the deity in adoration—Oklahoma’s Supreme Court ruled that the Ten Commandments statue violated the state Constitution and would have to come down. That was the entire point, the Satanic Temple’s co-founder and spokesperson Lucien Greaves told VICE News at the time. "We won this round,” Greaves said.
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