A quarter-century later, however, “religious freedom” has morphed from a shield defending the meek into yet one more sword demanding obeisance to the haughty. Officials in Greece, New York, begin public town council meetings with explicitly Christian prayers. The implicit demand of citizens who must do business before the council is for passive adherence—especially when the clergy ask them to bow their heads, to recite prayers, or to accept Jesus. In 2014, the Supreme Court held that citizens must accept this indignity—to do otherwise would trespass on the religious rights of the officials. They have chosen to display their piety. The citizens’ rights, the Court said, are trumped by the religious right of the officials themselves to display their faith—“to show who and what they are.” And in 2015, the Court held that the owners of large for-profit corporations may demand some sort of religious exemption to prevent their employees from making contraceptive choices of which their employers don’t approve.
Some of the states, meanwhile, are legally guaranteeing the religious “rights” of employers, contractors, schools, and businesses to discriminate against legally married same-sex couples and LGBT people in general. Under a North Carolina statute, county clerks—who, in the marriage context, embody the power of the state—may refuse to issue licenses to same-sex couples. In Kentucky, a county clerk went to jail rather than allow the issue of same-sex licenses; the legislature has now ratified her lawless behavior by statute. “Religious freedom” measures—aimed at licensing discrimination—are pending in other states.
All these measures transfer power from the less powerful party to the more powerful one. All of them explicitly privilege one set of religious beliefs, centered around those of conservative Christianity. All of them simply brush aside the consciences of the less powerful parties—the employees who wish to make their own decisions about contraception, the couples who seek only to enjoy their constitutional right to form families.
In the new world of religious freedom, the less powerful just don’t count. As a lawyer for Hobby Lobby told the Court in 2014, “not all burdens are created equal.”
How did this happen? The answer is a cautionary tale of how the best intentions of good people—lawyers, legislators, and judges—can produce results no one foresaw.