The Religious-Liberty Attack on Transgender Rights
By undermining protections for LGBT people, conservative Christians aim to restore their historical legal privileges
May 27, 2016
10 Min read time
Conservative Christians are out to restore their historical legal privileges.
Photograph: Nathan Rupert
Christian conservatives have been feeling on the defensive for some time now, but as the saying goes, sometimes the best defense is a good offense. Consider today’s big sticking points: gay and transgender rights.
In March, North Carolina passed a law requiring transgender people to use bathrooms corresponding to the sex on their birth certificates. The same act also revoked the right to sue under a state antidiscrimination law. Soon after, Mississippi passed an even broader law, which allows people and institutions to deny services to gay people on the basis of their religious beliefs. And after the Obama administration issued legal guidance directing public schools to allow transgender students to use whichever bathroom conformed to their gender identity, eleven states sued the federal government.
Responding to criticism from civil rights activists, corporations, and the wider public, North Carolina Governor Pat McCrory played coy: “I can’t believe we’re talking about this,” he told Fox News. Christian conservatives rallied to his side, complaining that transgender people and their allies demanded tolerance they did not extend to religious people. In South Carolina, State Senator Lee Bright introduced a similar bathroom bill and said of LGBT activists, “It used to be that they wanted us to tolerate them, now they want us to be quiet.”
Liberty, conservatives proclaimed, was in danger. As the commenter David French put it, emerging legal protection for LGBT people represented “the destruction of the civil rights of the faithful for the sake of the convenience of the radicals.” Bathroom laws and acts that shielded Christian-owned businesses from serving, hiring, or accommodating gay people were designed, social conservatives claimed, to defend religious freedom. “We need protections of our liberty as dissenters,” Ramesh Ponnuru, a senior editor at National Review, explained.
Christian conservatives talk of defending constitutional rights. In fact they are on offense, seeking legal recognition of their moral authority.
But do these arguments really make sense? Christian conservatives pass bills that use the coercion of law to promote their religious notions about gender identity. Then, when the backlash arrives, they invoke the hallowed constitutional right to religious freedom. It is a confusing position.
The way to understand it is to recognize Christians’ recent loss of political power. For it is a simple fact that, through much of American history, Christianity had a favored place within American law. When Christians controlled the law, the religious liberty of minorities was of little concern to them. It was only after the 1960s, once the Supreme Court had spent a few decades dismantling Christian privilege in law, that conservative Christians came to see religious liberty as a means to recover the advantages they once took for granted.
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In the nineteenth century, state judges routinely proclaimed Christianity a part of the common law. As Chancellor James Kent of New York put it in 1821, Christianity offered “the basis of the public morals.” State legislatures made further laws against blasphemy, indecency, profanity, Sabbath-breaking, slave emancipation and protection, and divorce, and they did so with overt reference to Christianity and the Christian Scriptures. When these sorts of moral laws were challenged, courts were refreshingly direct in upholding both the laws and the religious rationales of the legislators who sponsored them. As the Georgia Supreme Court said in an 1851 opinion that dismissed the killing of a slave, “It is the crowning glory of this age and of this land that our legislation has responded to the requirements of the New Testament in great part.”
State law could forcefully advance Christian moral ideas because the First Amendment’s ban on the establishment of religion, like the entire Bill of Rights, did not apply to the states. When the Bill of Rights was drafted in 1789, six states paid churches out of the public treasury. Under the First Amendment, states could do as they wished with respect to religion, whether that meant paying churches with public money, establishing an official religion, or doing nothing at all. Although the practice of paying churches came to an end in the fifty years after the Bill of Rights was instituted, the elimination of this funding mechanism did not change the special place that Christianity had within American law. For example, in many states office holders were required to take Christian oaths, and censorship laws were used to prosecute anything officials considered offensive to Christianity.
Slowly, though, Christian authority became unstable. By the end of the nineteenth century, judges began to reject the explicitly religious rationale for moral laws, though they often found ways to uphold them on some ostensibly secular basis. But judges eventually grew skeptical of even that. By the 1920s, jurists were becoming open to the emerging social sciences, which sought a nonreligious basis for understanding human society. The courts drew upon this new disciplinary knowledge to formulate a pluralistic vision of American society that denied the special place of Christianity within American law. The goal, as Supreme Court Justice Owen Roberts explained, was to create a body of law in which “many types of life, character, opinion and belief can develop unmolested and unobstructed.”
The key to this pluralistic vision was the Fourteenth Amendment, which gave the federal government power to protect Americans from the state-level infringement of constitutionally protected rights. Although the amendment was passed after the Civil War, it was not until the 1920s that the Supreme Court began to use it to create a more pluralistic legal framework. At first, liberals on the Court sought to protect political dissenters by applying federal free speech protections to the states. But the protections offered by the Court soon expanded. In the 1940 case Cantwell v. Connecticut, the Court applied the free exercise clause of the First Amendment to the states. Seven years later, in School District of Abington Township v. Schempp, it also applied the establishment clause to the states.
These decisions began a systematic dismantling of Christian privileges within law, which culminated in the 1960s. During this relatively short period, the Court struck down state laws requiring public officials to believe in God and to affirm an afterlife of rewards and punishments. The justices eliminated prayer and Bible-reading in public schools, practices dating to the beginning of public education in the United States. The Court decided that a person’s sincerely held, but not necessarily religious, belief in the immorality of war was a sufficient basis for exemption from the military draft. State laws forbidding the sale of contraceptives were overturned, and, not incidentally, the Court declared for the first time that the right to privacy was part of fundamental law. Anti-miscegenation laws, often justified in religious terms, were struck down. And the Court ended censorship and obscenity laws designed to uphold a public morality. The guiding principles underlying all these decisions were a concern for civil liberties, a civil indifference to moral and religious authority, and a preference for pluralism and heterogeneity. These principles directly challenged conservative religious control.
Christian conservatives initially responded by assuming that they spoke for the majority of Americans. They denounced the Court’s rulings as exercises of anti-religious tyranny that undermined accepted American institutions. Former President Herbert Hoover complained about the “disintegration of a sacred American heritage.” After the Court ruled against school prayer in Engel v. Vitale (1962), another former president, Dwight Eisenhower, said he “always thought that this nation was essentially a religious one.” To a considerable extent the new religious right, which took shape in response to the cultural, political, and legal changes of the 1960s, agreed. Christian conservatives believed that they represented a moral majority, as Jerry Falwell would call the political organization he founded in 1979. They asserted that they were victims, robbed of their rightful place as the nation’s custodians.
But in the first two decades of the new century, perception has been shifting. Religious conservatives now realize that they are not in the majority and that what they call “the liberal agenda” is not simply imposed by an unelected Court of nine judges but shared by a large body of Americans. The decisive proof is today’s widespread approval of gay rights and the Court’s landmark decisions striking down sodomy laws, in Lawrence v. Texas (2002), and limitations on gay marriage, in Obergefell v. Hodges (2015). Both decisions affected more than just gay rights. As the late Justice Antonin Scalia, who dissented in both cases, wrote, the majority’s opinions failed to acknowledge that all law was “based on moral choices.” The logic of the Court’s gay rights opinions made it difficult to uphold “laws against . . . adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” Although many of these complaints were extreme, Scalia accurately outlined conservative fears of a law freed from Christian moral control.
It was also Scalia who provided a way forward for these conservatives, although he did so inadvertently. In the 1990 case Employment Division v. Smith, his majority opinion created a political backlash that Christian conservatives could, in time, use for their own purposes. The case involved a group of Native Americans fired from their government jobs because they had ingested peyote as part of a religious ritual. They appealed to the Supreme Court, where conservative judges ruled against them. According to Scalia, it was the role of elected officials, not the courts, to decide which religious beliefs and practices received legal accommodation. He accordingly dismissed any claim of religious freedom put forward by the plaintiffs. Yet he did recognize a problem. “It may be fairly said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in,” Scalia wrote. But he considered this “an unavoidable consequence of democratic government.” Part of the reason he could be so sanguine was because he presumed a Christian majority.
In response, liberal groups petitioned Congress to pass the Religious Freedom Restoration Act of 1993 (RFRA), which was signed into law by President Bill Clinton. The primary purpose of RFRA was to roll back the Supreme Court’s ruling in Smith by requiring that “governments should not substantially burden religious exercise without compelling justification.” House Democrat Jerrold Nadler, who co-wrote RFRA, later explained that the intent of the law was to provide “a shield, not a sword.”
But once Christian conservatives realized that they were not, in fact, in the majority, they turned RFRA into a weapon. Complaining of a war on religion, they sought exemptions to otherwise-applicable laws. They also began to pass religious freedom acts on the state level, even before the Court’s rulings on gay rights in Lawrence and Obergefell. An extensive 2006 New York Times report found that, thanks in part to state-level RFRAs, religious organizations across the nation enjoyed exemptions to laws dealing with taxes, immigration, discrimination, employment, pensions, child care, and land use, among other issues. The objective has been to carve out ever-widening swaths of life in which places of worship, hospitals, schools, daycare centers, and—with the Supreme Court’s ruling in Burwell v. Hobby Lobby Stores (2014)—for-profit businesses no longer have to abide by generally applicable law, if they can make a claim on the basis of religious freedom.
North Carolina’s bathroom bill reflects this recent history of Christian conservatism in microcosm. Conservative lawmakers began with the old presumption of majority support and were shocked to find themselves surrounded by critics. They quickly fell back on the posture of victimhood: they had to defend the supposedly time-honored religious freedom that the Christian establishment long denied others.
And yet, as much as Christian conservatives seem to be swimming against the stream, their rhetoric of victimhood and their defense of religious freedom should not be taken at face value. As David Fowler, head of the Family Action Council of Tennessee, told the Wall Street Journal, the new strategy recognizes the comparative disadvantage that social conservatives face. But it responds by saying to liberals, in Fowler’s words, “OK, you made a rule, but there still are things I can control, and I will control them.”
In other words, sometimes a shield is a shield. And sometimes a shield is a sword. Today, when Christian conservatives invoke the First Amendment, they sound like they want to defend constitutional rights. But in fact they are on offense, seeking to assert the kind of moral authority under which Americans used to live, before the First Amendment protected the many different kinds of belief, opinion, and character within the United States.
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May 27, 2016
10 Min read time