Religious Freedom or Discrimination?

Wayne L. Trotta

Debating Religious Liberty and Discrimination, by John Corvino, Ryan T. Anderson, and Sherif Girgis (New York: Oxford University Press, 2017, ISBN 978-0-19-060307-6). 343 pp. Softcover, $21.95.


The culture wars have left us with a country that is polarized to the point of paralysis and a national political discourse that becomes more divisive, childish, and vulgar with each passing election year. The problem is serious, not because incivility is bad manners, but because it cuts at the heart of what makes a democracy possible. We need to listen to one another.

Debating Religious Liberty and Discrimination is a book that encourages us to do just that. Most remarkable is the refreshing spirit in which the authors conduct their debate. Despite their sharp disagreement on deeply polarizing and emotionally charged issues, there is an unfailing atmosphere of mutual respect and even of genuine friendship between the two sides. And surprisingly, or not, it turns out that there is much on which they agree.

John Corvino is professor and chair of the Philosophy Department at Wayne State University and a longtime supporter of LGBT rights. He is primarily concerned that open access to religious exemptions under the Religious Freedom Restoration Act (RFRA) has privileged the religious with a “get around the law free” card that allows them to ignore any laws that don’t comport with their beliefs. As he sees it, religious privilege is just one slippery step to religious discrimination.

Representing the conservative view are Ryan T. Anderson and Sherif Girgis. Anderson is a William E. Simon Senior Research Fellow at The Heritage Foundation, and Girgis, who holds a JD, is a PhD candidate in philosophy at Princeton University. In their view, some progressives have “challenged the freedom of conservatives to live by their beliefs that sex is for marriage, that marriage unites a husband and wife, that children deserve a father and mother, that abortion is wrong, or that biological sex is to be accepted, not altered” in what amounts to “an effort to coerce conscientious dissenters to live by the majority’s views; to punish the moral heretic.”

The book’s introduction, written by all three authors, is, while brief, one of the clearest presentations of the history of religious exemptions from Colonial times up to the passage of RFRA in 1993. The debate then moves ahead in a point/counterpoint format in which each side makes its case at some length and then each has an opportunity to reply to the other. Corvino begins, and Anderson and Girgis get the last word.

Corvino’s writing style is more relaxed, more accessible, and less technical than that of his counterparts. That’s not a criticism of Anderson and Girgis, however. Their style, while more densely packed and almost breathlessly paced compared to Corvino’s, flows partly from their training (Girgis is a Yaleand Oxford-educated legal scholar) and partly from their purpose, which seems to be to present in the space available as complete and coherent an argument as possible, one in which conclusions spring naturally from basic principles.

One important issue separating the opponents here has to do with what is called the “strict scrutiny” standard. According to RFRA, religious exemptions are permitted when a law “substantially burdens” an individual’s religious conscience. Exemptions can be denied only in cases in which the law serves a “compelling government interest,” and no “less restrictive means” is available by which to further that interest. The combination of the compelling interest and least restrictive means tests is the heart of the strict scrutiny standard. It presents a high bar for the state to clear before it can deny a religious exemption—so high that, as Corvino points out, the standard has been characterized as “strict in theory, fatal in fact.” Corvino would opt for a “moderate scrutiny” standard that would keep exemptions from getting out of control.

Anderson and Girgis, on the other hand, feel that strict scrutiny is required when an individual’s moral integrity is at stake, because, among life’s basic goods, religion and integrity are, as they put it, more fragile than the others. For example, self-determination is a basic good, but even in a case in which the state might somehow bar one from pursuing a project, you can always devote yourself to another. If, however, a county clerk is forced to sign marriage licenses for gay couples in violation of his or her religious conscience, then in so doing that clerk’s moral integrity is broken. Religiously based moral conclusions are all-ornone propositions. Violating any one of them makes you deficient in religion or integrity as a whole, even if you work harder to live by the others.

This is an interesting point, but one has to wonder: If religious integrity is so brittle, is there any claim for a religious exemption that would not meet the substantial burden criterion? Pair this with strict scrutiny, and it seems that no exemption claim, no matter how far-fetched, could ever be denied.

The June 2014 Supreme Court’s Hobby Lobby decision is a case in point (Burwell v. Hobby Lobby Stores, Inc.). The Hobby Lobby company is owned by the family of David and Barbara Green, who, as evangelical Christians, claimed that they were entitled to an exemption from the Affordable Care Act’s requirement that the company’s health insurance plan provide coverage for contraceptives. The Greens believed that a number of these contraceptives are abortifacients, so being forced to pay for such coverage substantially burdened their religious freedom. The Court agreed.

In her dissent, however, Justice Ruth Bader-Ginsburg insisted that Hobby Lobby’s claim of a substantial burden was at best a bit of a stretch. The connection, she wrote, between the “families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial.” As the justice points out, the owners of the corporation are not required to purchase contraceptives but rather to put money into “undifferentiated funds that finance a wide variety of benefits under comprehensive health plans.” Furthermore, decisions about contraceptives are made by individual women in consultation with their doctors, and, as the Court itself had maintained in a previous case, are not in any meaningful sense decisions or actions of their employers.

It’s also worth recalling that Hobby Lobby willingly imports billions of dollars’ worth of notions and sundries from China, a state in which “some thirteen million abortions, many done forcibly,(occur) each year,” and where 1.35 billion citizens are denied freedom of worship (FREE INQUIRY, April/ May 2015, p. 15). How is it that the same Hobby Lobby conscience that is substantially burdened by health-care choices of employees that have only a remote and incidental connection to the company owners is not burdened in the least by doing business with a totalitarian, abortionist state?

Debating Religious Liberty and Discrimination takes on a seemingly endless series of questions. For example, when, if ever, should citizens be exempt from generally applicable laws? Should religious conscience be given greater weight than nonreligious conscience? What is discrimination, what makes it unjust, and when should it be illegal? Are antidiscrimination laws covering sexual orientation and gender identity necessary? Should we accommodate bakers and florists who feel obligated to refuse to provide goods and services for same-sex weddings? If so, how do we go about this? How should we respond to religious beliefs and practices with which we have strong differences?

Kim Davis is a county clerk in Kentucky who was jailed for refusing to approve marriage licenses for samesex couples. Is Davis a champion of religious liberty and pluralism whose act of dissent it would be illiberal to squelch? Or is she an intolerant reactionary, claiming for herself the right to discriminate against anyone whose beliefs and behavior she deems objectionable?

Debates often do not change minds, but, nevertheless, if you want to gain a better understanding of religious liberty as it relates to sexuality and challenge your own thinking in the process, this book is the place to start, whichever side you may be on.

Wayne L. Trotta

Wayne L. Trotta is a psychologist and frequent  reviewer for Free Inquiry.

The culture wars have left us with a country that is polarized to the point of paralysis and a national political discourse that becomes more divisive, childish, and vulgar with each passing election year.

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