Freedom of Religion vs. Sexual Freedom—A Conflict Between Liberties?

Laycock: In today’s conflict, “what one side views as a great evil, the other side views as a fundamental right."

Make no mistake: Professor Douglas Laycock thinks that “human liberty is a good thing.” But his 2015 Annual Lecture at Boston University School of Law on February 12, 2015, could not stop with that simple statement: his lecture expounded on the ongoing “conflict between liberties,” particularly free exercise of religion and sexual freedom.

Appropriately, Laycock, the Robert E. Scott Distinguished Professor of Law and Peter W. Low Professor of Religious Studies at the University of Virginia School of Law, titled his lecture “Religious Liberty and the Culture Wars.”

BU College of Arts & Sciences Dean Virginia Sapiro opened the lecture with a nod to the multidisciplinary reach of religion at the university and thanks to Professor James Fleming and Dean Maureen O’Rourke at BU Law for their roles in putting on the lecture series. "The study of religion is by necessity an interdisciplinary field,” she said.

Representing the BU Department of Religion, lecture co-sponsor along with the School of Law, Professor Stephen Prothero introduced Laycock’s lecture. Our founders’ “awkward compromise on religion made the culture wars that rage around us almost inevitable,” Prothero said.

Laycock has a history of defending religious practices from governmental intrusions, which Prothero outlined. From the landmark Santeria case Church of Lukumi Babalu Aye v. City of Hialeah (508 U.S. 520, 523 (1993)) to his very recent Supreme Court victory in Holt v. Hobbs on behalf of a Muslim prisoner fighting to keep his beard, Laycock has made his mark on First Amendment law.

Religion and gender, in Laycock’s view, are essential aspects of human identity, while abortion and contraceptives are one step removed—a person’s “entire identity is not to be held hostage” to that one act.

He evaluated the shifting current trends in law around freedoms, finding that same-sex marriage has momentum, yet compelling religious figures who object to perform same-sex marriage doesn’t.

“The right to believe is protected absolutely,” Laycock said, though this doesn’t extend to the right to act unrestrained. “Actions are necessarily subject to some forms of regulation,” he said. For example, “we cannot impose significant harm on others even in the exercise of a religious right.”

The law, when it comes to religion, however, is “a confusing and in some ways a rather ragtag body of law.”

Laycock outlined shifting perspectives on the Religious Freedom Restoration Act (RFRA) and equivalent state laws as the most obvious modern example. These laws, he said, provide protections for the practice of religion. The original federal RFRA passed by a vote that was “unanimous in the House and 97-3 in the Senate,” and set up a test for evaluating statutes that affected religious practices: they had to serve a compelling government interest and be the least restrictive alternative (as compared to other measures that would serve that interest).

That version of RFRA didn’t pass Supreme Court muster, Laycock said, and “by 2000, Congress had abandoned an effort to broadly provide a replacement for RFRA.”

“Disagreement over religious liberty has gotten steadily worse ever since,” he said. He also outlined what he called "deep disagreement over sexual morality" and a parallel track of challenges to religious liberties, exemplified by a recent case involving a woman suing the US Conference of Catholic Bishops, alleging that denial of proper care led to a miscarriage.

"Why was this lawsuit filed now, not five, 10, 20, or even 40 years from now?” Laycock asked. His answer is the current “climate of opinion that is skeptical to claims of religious liberty.”

The institution of marriage is both deeply personal, he said, and for some Americans, it’s also deeply religious. In those people’s view, “the legal institution of marriage is based on the religious relationship,” and while the state can “recognize marriages, it cannot redefine marriage,” Laycock said.

Refusal to provide services for same-sex weddings, from floral arrangements to officiating, he said, is based in the idea that a same-sex marriage is a “relationship that falsely mimics a religious relationship.” However, there is “confusion about what religious liberty legislation can actually accomplish in red states,” he found, as well.

The trajectory of contraception and abortion access support and opposition followed a similar path to other liberties issues: contraception, for a time “had been uncontested, but is now contested again,” Laycock said. The Patient Protection and Affordable Care Act’s contraceptive mandates upset the equilibrium.

For the “pro-life movement,” both Catholic & evangelical, Laycock said, "preventing implantation is a form of abortion, and it doesn't matter that the [official descriptions of contested contraceptives] say it only 'may happen sometimes.'"

The Hobby Lobby decision was narrowly tailored and does not necessarily portend many future victories, he said, but still unleashed an “avalanche of hysterical criticism from the left.”

“Some major religious nonprofits have accepted this solution as sufficient,” Laycock said, and others are going to keep at it in court, but they're going to lose as long as they “want a rule that really would deprive their female employees of contraception.”

Evangelicals have been on losing side of sexual revolution, he said, and in today’s conflict, “what one side views as a great evil, the other side views as a fundamental right.”

When it comes to weighing wrongs, “the broad label ‘discrimination’ makes no distinctions,” Laycock said, which could be problematic. “It’s a risky step to interfere with the most intimate details of one's life while claiming liberty is on your side.”

Laycock then reviewed some current events that signal the wide reach of the culture war: a Toronto Globe & Mail commentary that said, "It's time to speak out against religious freedom;” Canadian provinces’ controversy about accreditation of Christian law schools; Colorado’s Senate passing a civil union bill that some would object to on religious grounds, yet putting in “no meaningful exemption.”

Laycock’s conclusion? "Religious minorities must conform or withdraw."

Groups on both sides go broad: they “tend to assume that any interest they care about is compelling,” and to state it in broadest terms possible, he said, while stating their interests more narrowly might get more understanding from courts or opponents.

He then turned to the ongoing issues related to same-sex marriage, in particular vendors who refuse to provide services to same-sex weddings. People turned down by florists or bakers or couples’ counselors find insult or offense “in being referred elsewhere because [a provider] ... does not do gay weddings,” Laycock said. “The purpose of such arguments is not to obtain counseling, but to drive conservative believers out of the profession,” he wrote in 2013. At the heart of this issue, “neither side appears to take seriously the harm to the other side,” he said. “Consider how we would feel if the tables were turned.”

His first illustration involved a tale of two bakers, one asked to make a cake with “slogans condemning same-sex marriage,” and one asked to make a wedding cake for a gay marriage. Imagine how each would feel, and what the public response would be to each.

“Imagine the emotional harm you would suffer if you were forced to kill a baby,” he asked the audience in his next turning-the-tables illustration. “That is what the owners of Hobby Lobby believe, and that is the interest we are trying to protect.”

Laycock next explored the question of employment. What makes sense in the context of upholding liberty: keeping people who oppose certain necessary parts of a profession from entering that profession (such as abortion-opponent gynecologists), or keeping people from working for a religious institution who do not follow that religion (or the inverse, preventing them from hiring on the basis of religion)? Fundamentally, he said, “inside a Catholic institution has to be a Catholic space—but not in the view of the church’s opponents.”

Finally, he turned to his recent case, Holt: Laycock represented “a Muslim prisoner who is religiously obligated to grow his beard,” which Arkansas would not allow, “no matter how short” the client trimmed it.

In January, Laycock “won a unanimous decision in the Supreme Court,” with one separate opinion filed by Justice Ruth Bader Ginsburg differentiating between the scope of Hobby Lobby, where she dissented, and Holt. “Whether broader public opinion will be so discerning remains to be seen,” he said.

On a broader level, “issues about the free exercise of religion arise when one of our” diverse array of religions comes into conflict “with one of our equally diverse” regulations thereof, he said.

Laycock’s fundamental inquiry in the culture war is whether we can “live and let live”—whether “we care enough about liberty to protect it for both sides.”

Perhaps, he said, the religious side of the debate will reach a position on same-sex marriage like they have on a host of other sexual morality issues of the past. There is no significant opposition today regarding fornication, sodomy, etc., he said. “Churches continue to teach what people should do, but no longer to seek to control by law what people may do” in those areas, Laycock said.

On the sexual liberty side, Laycock said, supporters may need to acknowledge that “apart from local monopolies they have no real right to” elective services from “people who morally oppose providing these services.” In turn, Catholics should avoid hospital monopolies, he said.

Dragging feet on acknowledging freedoms makes groups on any side lose momentum, he said: “Insistence on total wins is bad for liberty.”

In the ongoing culture war, Laycock concluded, “Maybe the courts will do their job and protect the liberty of both sides ... or maybe not.”

A vigorous question-and-answer session, moderated by Fleming, followed, with professors and many students asking challenging questions about whether Laycock’s focus in protecting liberty was “freedom ‘from’ or freedom ‘to;’” the “expressive right” to express disapproval, even where it crosses the line to hate speech; intentionally provocative statements; religions that reject the “authority of the state” to set laws contrary to conscience; why anyone should accommodate anti-gay views; and the difference between these freedoms and the right to be free from racial discrimination.


Douglas Laycock

Douglas Laycock, the Robert E. Scott Distinguished Professor of Law and Peter W. Low Professor of Religious Studies at the University of Virginia School of Law, delivered "Religious Liberty and the Culture Wars," cosponsored by BU Law and the BU Department of Religion.

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Reported by Jaime Margolis ('16)

Last edited February 19, 2015

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