Is Religious Freedom Discrimination?
Over 400 years ago, the Pilgrims sailed the Mayflower to the New World, seeking religious freedom. And after a difficult first year in America, the surviving Pilgrims gave thanks and feasted, joined by about 90 Native Americans.
The Pilgrims were neither the first nor the last group to come to America to make a new life and worship freely. In recent years, however, some people have raised questions about whether religious freedom is worth protecting at all. Does religious freedom harm society? Does it lead to discrimination? Does protecting religious freedom mean going back to before the Civil Rights Era? The short answer to all these questions is no.
Religious freedom allows for human flourishing.
What is religious freedom?
In 2010, then-President Barack Obama recognized that “[o]ur Founders understood that the best way to honor the place of faith in the lives of our people was to protect their freedom to practice religion.” Indeed.
Religious freedom doesn’t mean the absence of religion or freedom from religion.
Section 16 of the Virginia Declaration of Rights, adopted in 1776, encapsulates the meaning of this important freedom:
“That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience.”
So religious freedom entails the freedom to believe and speak your convictions, practice your faith, and live in line with your conscience. Recognizing these truths, the framers of the Constitution drafted a First Amendment designed to prevent the state from establishing a religion and using it to punish dissenters.
Religious freedom vs. discrimination
While religious freedom values the human person, racial discrimination does the opposite.
Tragically, there was a time in our country when restaurants, hotels, and other establishments were segregated or implemented “whites only” policies. Underneath the injustices of Jim Crow, arbitrary and prejudicial distinctions were being made between white and black Americans. And this discrimination was steeped in myths about a group’s abilities, character, roles, and sometimes even biology. These repugnant stereotypes undermined black Americans’ ability to pursue human flourishing by attacking their dignity and excluding them from social and economic spheres.
Against this backdrop, the U.S. Supreme Court has said that people “have the right not to be excluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce patterns of historical discrimination.”
Today, unfortunately, the word “discrimination” is sometimes invoked even when no prejudice and no arbitrary distinctions are involved. But “discrimination” should not be wielded as a weapon against those with deeply held religious beliefs, including about marriage and sexuality.
The effects of suppressing religious freedom
Recently, some governments have attempted to wield antidiscrimination laws to suppress the speech of those who hold to such beliefs. Traditionally, these laws restrained private discrimination by regulating conduct: for example, restaurants can’t serve only white people or only women. Yet although court case after court case has held that compelling speech is unconstitutional, some governments are still pressing for it: if you speak one message, you also must speak a different message.
Religious freedom is often caught in the crosshairs.
Cake artist Jack Phillips
For millennia, people of various faiths have viewed marriage as a union between one man and one woman. In 2015, the U.S. Supreme Court announced a constitutional “right” to same-sex marriage. But even then, the Court recognized that the belief that marriage should be between one man and one woman is “based on decent and honorable religious or philosophical premises.” ADF client Jack Phillips is one person who holds that belief.
Jack is a cake artist who owns Masterpiece Cakeshop in Colorado, and he has been in court for over a decade after he respectfully declined to create a custom-designed cake celebrating a same-sex wedding.
Jack serves everyone, regardless of their background. But he can’t express messages that violate his conscience. Jack does not design cakes that celebrate violence, for example. He doesn’t design cakes promoting Halloween. And he doesn’t design cakes with anti-American messages.
None of this is discrimination. When the two men requested a wedding cake, Jack offered to sell them any item on his shelves, or to create for them a cake expressing a message he would create for anyone else. He just could not promote a message contrary to his beliefs through his custom art.
Because of Jack’s beliefs about marriage, Colorado officials targeted him. The Colorado Civil Rights Commission ordered Jack to either violate his faith by designing custom cakes that celebrate same-sex marriages or stop designing all wedding cakes, which was a big part of his business.
Thankfully, Jack’s case advanced all the way to the Supreme Court, which ruled that the Commission was wrong to punish Jack for operating his business according to his religious beliefs about marriage.
But Jack’s legal journey didn’t end with his victory at the High Court. Colorado officials continued to target Jack. After new evidence emerged showing that members of the Commission still held animus toward Jack and his religious beliefs, the Commission dismissed its complaint against him.
And that still wasn’t the end of it. In 2019, a local activist attorney filed a civil lawsuit against Jack, and that case is still being litigated. (Read more about the case here.)
Faith-based adoption agency
New Hope Family Services is a private Christian adoption agency that has served families in upstate New York for over 50 years. Consistent with its faith, New Hope places children in homes with a married mother and father. In 2018, the State of New York gave New Hope an ultimatum: change its policy in violation of its religious beliefs, or shut down.
Shutting down New Hope would mean one less adoption agency able to vet families and place children in loving homes. That wouldn’t be good for anyone.
In December 2018, ADF assisted New Hope in filing a lawsuit asserting, among other things, that New York’s actions violated New Hope’s right to free speech and the free exercise of religion. In July 2022, the U.S. Court of Appeals for the 2nd Circuit strongly agreed with New Hope’s arguments, and in September 2022 a federal district court entered a permanent injunction ordering the state of New York to not force New Hope to violate its religious beliefs by changing its adoption policy.
New Hope’s beliefs are rooted in deep religious conviction, not in stereotypes and assumptions. Nor do New Hope’s policies prevent the state from allowing certain couples to adopt. New Hope simply wants to minister to families and children in a way that is consistent with its religious beliefs.
Christian fire chaplain
It’s not just private companies and groups that have been penalized for speaking about their religious beliefs. Dr. Andrew Fox, who served for years as a volunteer fire chaplain, has experienced firsthand how some governments attempt to quell dissenters.
Dr. Fox started the volunteer chaplaincy program at the Austin Fire Department in 2013. He served faithfully (on his own time) for years. He loved getting to serve the first responders who risk their lives to protect the community.
In 2021, Dr. Fox shared on his personal blog his convictions about the unfairness of men competing in women’s sports. When the city asked him to apologize for his views and recant, Dr. Fox apologized for offense he may have caused, but not for his views. He would not recant. The city rejected the apology as insufficient. In the end, the city dismissed him from his volunteer position. Dr. Fox filed suit in federal court asserting claims involving free speech and freedom of religion.
The city has no business telling a Christian chaplain he can’t express Christian beliefs—especially in his private capacity on his own time. Remember, before he posted his blog, Dr. Fox had an unblemished record of faithful and exemplary service.
The city’s violation of Dr. Fox’s religious freedom has had collateral consequences. The firefighters are the ones who are paying for it—having lost a long-serving, trusted chaplain.
The bottom line
Artists, ministries, and chaplains all contribute to their communities. Honoring their religious freedom will not take us back to ugly times in our nation’s history. Far from it.
People of faith should be free to live their lives in accordance with their faith. They should be free to speak messages in line with their faith and not be required to speak messages they disagree with. Indeed, religious freedom is just as important for us now as it was for the Pilgrims 400 years ago.