The New 'Religious Freedom' Is a Boon for Churches

Modern courts are redefining religious liberty, and it'll cost you

Posted Apr 19, 2017

Most of us sympathize with the basic concept of religious freedom, but few would have imagined that the free exercise of religion, as spelled out in the First Amendment, requires a state to cut a check to support a church. That’s exactly what will happen if a case argued before the Supreme Court today goes the way religious activists are hoping.

public domain
The newest Supreme Court justice, Neil Gorsuch, is seen as sympathetic to religious freedom arguments.
Source: public domain

The case, Trinity Lutheran Church v. Comer, involves a church in Missouri that applied for a grant from the state to build a playground. The government denied the grant request, citing a state law forbidding the use of public money to support churches. The church sued, claiming that the denial somehow violates its free exercise rights under the First Amendment.

With the Trinity Lutheran  case, we see the astonishing results of modern efforts to expand the definition of “religious freedom.” We often hear that activist religious groups and the politicians they support are seeking to defend the concept of religious liberty, but in fact what they are doing is redefining it, transforming it into something far beyond its historical meaning.

The church's argument in Trinity Lutheran follows the same train of logic that would suggest “religious freedom” allows merchants to refuse service to those with whom they disagree. Only in modern times have such arguments gotten any traction. With the new addition of the conservative Neil Gorsuch to the Supreme Court, many observers believe such claims of religious liberty will win the day in Trinity Lutheran this term and in other cases in years to come.

The slippery slope leading to the modern redefinition of religious liberty began in 1993, with passage of the deceptively named Religious Freedom Restoration Act (RFRA), a statute that did more to expand the definition of religious liberty than restore it. RFRA changed the legal standard for analyzing religious freedom claims, the result being that governmental regulations and requirements can now be struck down if a citizen claims that the action offends his or her sincerely held religious beliefs.

Since then, with many laws also being passed at the state level that mirror RFRA, we’ve seen religious parties get increasingly bold in their efforts to use claims of “religious freedom” to discriminate and to impose their religious standards on others. In the 2014 Hobby Lobby case, we saw a corporation—not even a real human, but a for-profit corporate entity!—claim religious freedom to exempt itself from public health laws requiring insurance coverage for its employees. With a subsequent case we saw a religious group object to simply filing a piece of paper with the government to claim the religious exemption.

And of course, there have been the innumerable instances where county clerks refuse to do their job in simply issuing marriage licenses, where bakeries refuse to bake cakes for gay couples, and where florists refuse to do their jobs because their customers are gay or atheist. All in the name of religious freedom.

In all of this, there is little mention that these claims of religious freedom, or at least their widespread use, are a relatively new trend. When the framers said no law shall be made “prohibiting the free exercise” of religion, it’s hard to imagine that they saw those words as requiring government to subsidize a new playground for a religious school. Trinity Lutheran Church’s religious freedom is firmly intact without a taxpayer-funded playground.

Nevertheless, religious activists know that cries of "religious freedom" resonate with Americans, most of whom have no idea that the concept has been expanded to perverse levels. When free exercise of religion is defined as allowing churches to receive tax dollars—and as allowing merchants to deny members of the public services based on religious discrimination—things have gone way too far.

On Twitter: @ahadave