April 13, 2011 | Backgrounder on Religion and Civil Society
Abstract: Today, religious liberty issues are more complicated than simply freedom from government interference in religious worship or teaching. Threats to religious liberty and respect for conscience are emerging in the health care field, in the area of institutional religious freedom, and in the context of issues involving same-sex marriage and nondiscrimination policies. Religious liberty and respect for conscience should be encouraged and protected, both in civil society and in law and policy, as an effective and principled way to promote social peace and civic fraternity in an increasingly pluralistic society.
By now, many people are familiar with debates concerning legalized abortion, the display of religious symbols or expression of religious ideas in the public square, whether the state should license homosexual unions as marriages, and similar issues. Fewer people might realize that these debates have entered a new phase in which respect for conscience is under attack. For example:
Today, religious liberty issues are more complicated than simply freedom from government interference in religious worship or teaching. In many cases this is because, at the same time our society is becoming more pluralistic on questions of basic morality, the government continues to intrude more than ever in both public and private areas of social life. Another factor is an increasing number of incidents in which private citizens and society at large demonstrate intolerance of and hostility to orthodox religious and moral viewpoints.
This paper provides a brief overview of some of these issues and recommends respecting and protecting conscience as an effective, principled, and essential way to promote social peace and civic fraternity in an increasingly pluralistic society.
Threats to Conscience in Health Care
The health care field is fraught with difficult moral issues including abortion, contraception, artificial reproductive technologies, euthanasia, and assisted suicide. Health care providers with moral or religious objections to participating in these and other procedures face threats to conscience in at least two ways.
Some state governments have enacted conscience protection laws. In addition, federal law conditions receipt of certain federal funds on respect for conscience in particular situations. These protections reflect the high value a civil society places on religious and moral conscience.
However, these protections require vigilance against attack from activists and public officials who fail to accord conscience its proper value. The Obama Administration, for example, recently weakened federal regulations designed to make existing statutory protections more effective.
Threats to the Religious Integrity of Religious Groups
Religious groups face at least two types of threats to their religious liberty, both of which are focused on religious hiring rights.
Whether imposed directly through mandates or indirectly through conditions on equal access, religious nondiscrimination mandates would force religious groups to “hide their candle under a bushel” before entering into the public square. This would undermine the vital and distinct contribution that religiously inspired civil society groups make to the greater good of all society.
Threats to Conscience from Same-Sex Marriage and Nondiscrimination Policies
People and groups with traditional understandings of sexual morality, including the understanding that marriage is the union of one man and one woman, face at least two types of burdens on conscience. The potential for conflicts already exists under nondiscrimination laws that treat marital status, sexual orientation, and gender as protected statuses. Redefining marriage would increase the number of conflicts.
Conflicts like the ones in Illinois and New Mexico will only become more common if states redefine marriage or enact other legal recognitions for homosexual unions. The Becket Fund for Religious Liberty studied more than 1,000 state laws prohibiting discrimination on the basis of sexual orientation, gender, or marital status and found that more than “350 separate state anti-discrimination provisions would likely be triggered by recognition of same-sex marriage.”
Regrettably, there is strong opposition to respecting conscience rights of people trying to earn a living through small business. For example, before she was appointed to serve as a member of the U.S. Equal Employment Opportunity Commission, Georgetown law professor Chai Feldblum stated:
[F]or all my sympathy for the evangelical Christian couple who may wish to run a bed and breakfast from which they can exclude unmarried, straight couples and all gay couples, this is a point where I believe the “zero-sum” nature of the game inevitably comes into play. And, in making the decision in this zero-sum game, I am convinced society should come down on the side of protecting the liberty of LGBT people.
These kinds of conflicts will only increase in jurisdictions that officially license homosexual unions.
Today, religious liberty and rights of conscience issues are more complicated than simply freedom from government interference in religious worship or teaching. In many cases, this is because, at the same time our society is becoming more pluralistic on questions of basic morality, the government continues to intrude more than ever in both public and private areas of social life. Another factor is an increasing number of incidents in which private citizens and society at large demonstrate intolerance of and hostility to orthodox religious and moral viewpoints.
Moral deliberation cannot—and should not—be avoided, even in law and policy. In a society that aims to judge people by “the content of their character,” as Dr. Martin Luther King, Jr., put it, moral deliberation is a constant responsibility for individuals. Further, as President Barack Obama said when campaigning in 2006, “Our law is by definition a codification of morality, much of it grounded in the Judeo–Christian tradition.” On some issues, such as how to define marriage or whether taxpayer money should be used to pay for abortions, the government cannot avoid taking a position on the moral questions presented.
In many cases, however, government overreach raises the stakes of moral discourse and encourages intolerance on the part of private citizens. When civil liability or equal access to government benefits depends on private citizens adopting the “official” state position on controversial moral issues, the potential for infringement of religious liberty and rights of conscience is clear. As the diversity of moral viewpoints in society increases, the number of social conflicts will only rise.
In pluralistic societies where consensus is elusive, protecting religious liberty and rights of conscience is one of the most effective and principled ways to promote social peace and civic fraternity. Where governments choose to act, whether through regulation or through condition-based funding, they should promote respect for religious and moral conscience, not discourage it. Where a government itself imposes a burden on religious and moral conscience, the case for protecting conscience is even more compelling.
Finally, private citizens and institutions should encourage each other to recognize the value of moral conscience and to respect it as an essential ingredient of a free and civil society.
—Thomas M. Messner is a Visiting Fellow in the Richard and Helen DeVos Center for Religion and Civil Society at The Heritage Foundation.
 See Stormans v. Selecky, Washington, (2010 – current), Becket Fund for Religious Liberty (Feb. 7, 2011), http://www.becketfund.org/stormans-v-selecky-washington-2010-%E2%80%93-current/.
 See Tom Messner, A Path to Accommodating Sexual Orientation and Protecting Religious Freedom?, The Foundry (Aug. 22, 2008, 11:06 AM), http://blog.heritage.org/2008/08/22/a-path-to-accommodating-sexual-orientation-and-protecting-religious-freedom/.
 See Letter from Matthew Bowman, Legal Counsel, Alliance Defense Fund, Washington, D.C., to Roosevelt Freeman, Regional Manager, Office for Civil Rights, U.S. Dept. of Health and Human Services (Jan. 11, 2011), available at http://adfwebadmin.com/resources/Files/HHS_Complaint_Letter.pdf.
 See Casey Mattox, Vanderbilt Rescinds Supposedly Non-Existent Policy, Protects Conscience!, Speak Up Movement (Jan. 12, 2011), http://blog.speakupmovement.org/university/uncategorized/vanderbilt-rescinds-supposedly-non-existent-policy-protects-conscience/.
 See Letter from Matthew Bowman, supra note 3, at 1, 3–5.
 See Posting of Casey Mattox, supra note 4 (follow links for “application packet” and “email by Vanderbilt”); see also eNews for Faith-Based Organizations (Stanley Carlson-Thies, ed.), “A Victory for Professionals with a Pro-Life Conscience,” Jan. 25, 2011, http://archive.constantcontact.com/fs020/110243353.
 See Cenzon-DeCarlo v. The Mt. Sinai Hospital resource page, Alliance Defense Fund (Nov. 23, 2010), http://www.alliancedefensefund.org/News/PRDetail/2895; NY nurse threatened, forced to assist in late-term abortion, Alliance Defense Fund (July 22, 2009), http://www.alliancedefensefund.org/News/PRDetail/2694; Fact Sheet: Cenzon-DeCarlo v. The Mt. Sinai Hospital, Alliance Defense Fund, http://oldsite.alliancedefensefund.org/userdocs/Cenzon-DeCarloFactSheet.pdf (last visited Mar. 28, 2011).
In Cenzon-DeCarlo v. Mount Sinai Hospital, 626 F.3d 695 (2d Cir. 2010) (per curiam), the U.S. Court of Appeals for the Second Circuit affirmed a district court ruling that the federal law in question does not provide a private right of action. The nurse has filed a state court action asserting certain claims under state and local law. See NY nurse forced to participate in abortion files additional suit against Mt. Sinai Hospital, Alliance Defense Fund (Apr. 29, 2010), http://adfmedia.org/News/PRDetail/2895.
 See Michael W. McConnell and Nathan Chapman, A Step Backward for Freedom of Conscience, Advancing a Free Society (Mar. 1, 2011, 06:28 AM), http://www.advancingafreesociety.org/2011/03/01/a-step-backward-for-freedom-of-conscience/ (discussing conscience protections in federal statutes and steps taken by Obama Administration to weaken regulations that had been designed to strengthen federal conscience protections); eNews for Faith-Based Organizations (Stanley Carlson-Thies, ed.), “Reduced Conscience Protections for Health Care Institutions and Professionals,” Feb. 22, 2011, http://archive.constantcontact.com/fs020/110243353; Chuck Donovan, Conscience Regulations: HHS Stops (Just) Short of Rescission, The Foundry (Feb. 18, 2011, 03:30 PM), http://blog.heritage.org/2011/02/18/conscience-regulations-hhs-stops-just-short-of-rescission/.
 See Big Victory for Religious Hiring in World Vision Case, Institutional Religious Freedom Alliance (Aug. 29, 2010), http://www.irfalliance.org/component/content/article/43-big-victory-for-religious-hiring-in-world-vision-case.html.
 See Thomas M. Messner, Can Parachurches Hire and Fire Based on Religion Without Violating Title VII?, 17 U. Fla. J. L. & Pub. Pol’y 63, 67–74, 105 (2006).
 Sign of the Times: Rising Washington Tide Against Religious Hiring, Institutional Religious Freedom Alliance (July 27, 2010), http://www.irfalliance.org/component/content/article/40-signs-of-the-times-rising-washington-tide-against-religious-hiring.html. See also Lame Duck Congress Leaves Religious Hiring Alone, Institutional Religious Freedom Alliance (Dec. 29, 2010), http://www.irfalliance.org/component/content/article/46-lame-duck-congress-leaves-religious-hiring-alone.html.
 See Christian Legal Society v. Martinez (UC Hastings), Christian Legal Society (providing resources about case), http://www.clsnet.org/center/litigation/christian-legal-society-v-martinez-uc-hastings (last visited Mar. 28, 2011).
 See Ryan Messmore, Private Faith, Big Government: Understanding the Impact of Marginalizing Religion, Heritage Found. Backgrounder No. 2123, Apr. 15, 2008, available at http://www.heritage.org/Research/Reports/2008/04/Private-FaithnbspBig-Governmentnbsp-Understanding-the-Impact-of-Marginalizing-Religion. For more information on institutional religious freedom issues, the Web site of the Institutional Religious Freedom Alliance is an excellent resource. See www.irfalliance.org.
 See, e.g., Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock et al. eds., 2008) (including contributions from Anthony R. Picarello, Jr., Marc D. Stern, Jonathan Turley, Robin Fretwell Wilson, Douglas W. Kmiec, Chai R. Feldblum, Charles J. Reid, Jr., and Douglas Laycock); Roger Severino, Or for Poorer? How Same-Sex Marriage Threatens Religious Liberty, 30 Harv. J.L. & Pub. Pol’y 939 (2007); Barbara Bradley Hagerty, Gay Rights, Religious Liberties: A Three-Act Story, NPR, June 16, 2008, available at http://www.npr.org/templates/story/story.php?storyId=91486340; Peter Steinfels, Beliefs: Advocates on Both Sides of the Same-Sex Marriage Issue See a Potential Clash with Religious Liberty, N.Y. Times, June 10, 2006, at A11, available at http://query.nytimes.com/gst/fullpage.html?res=9C05E4DC1231F933A25755C0A9609C8B63&sec=&spon=&pagewanted=1; Mary Ann Glendon, Op-Ed, For Better or For Worse?, Wall. St. J., Feb. 25, 2004, at A14, available at http://www.opinionjournal.com/editorial/feature.html?id=110004735.
 See Thomas M. Messner, Same-Sex Marriage and the Threat to Religious Liberty, Heritage Found. Backgrounder No. 2201, Oct. 30, 2008, at 16 & nn.82–84, available at http://www.heritage.org/research/reports/2008/10/same-sex-marriage-and-the-threat-to-religious-liberty; see also Alliance Defense Fund, “Fact Sheet: Willock v. Elane Photography,” available at http://oldsite.alliancedefensefund.org/userdocs/ElanePhotoFactSheet.pdf (current through Jan. 25, 2008). The case has been appealed to the New Mexico Court of Appeals.
Laurie Higgins, Homosexuals Sue Christian Bed & Breakfast Owner for Refusing “Civil Union” Ceremony, Illinois Family Institute News & Opinion (Feb. 24, 2011, 07:46:00 AM), http://www.illinoisfamily.org/news/contentview.asp?c=35169.
Craig Gernhardt, Gay Couple Denied Civil Union at Bed and Breakfast, Now In Gay Chicago (Feb. 18, 2011, 08:00 PM), http://www.nowingaychicago.com/2011/02/gay-couple-denied-civil-union-at-bed.html.
Higgins, supra note 17.
Becket Fund for Religious Liberty, Same-Sex Marriage and State Anti-Discrimination Laws 2 (Jan. 2009), http://www.becketfund.org/wp-content/uploads/2011/04/Same-Sex-Marriage-and-State-Anti-Discrimination-Laws-with-Appendices.pdf.
Chai R. Feldblum, Moral Conflict and Liberty: Gay Rights and Religion, 72 Brook. L. Rev. 61, 119 (2006).
 See Messner, supra note 16, at 8–9 & nn. 32–33.
 See Christian Legal Society, supra note 13.
 See, e.g., Maggie Gallagher, Banned in Boston: The coming conflict between same-sex marriage and religious liberty, Wkly Standard, May 15, 2006, available at http://www.weeklystandard.com/Content/Public/Articles/000/000/012/191kgwgh.asp; Chuck Donovan, The D.C. Government’s Strike Against Foster Kids—and Religious Liberty, The Foundry (Feb. 19, 2011, 11:00 AM), http://blog.heritage.org/2010/02/19/the-d-c-government%E2%80%99s-strike-against-foster-kids-%E2%80%93-and-religious-liberty/.
Manya A. Brachear, State probes religious foster care agencies over discrimination, Chi. Trib., Mar. 2, 2011, available at http://articles.chicagotribune.com/2011-03-02/news/ct-met-gay-foster-care-20110301_1_care-and-adoption-catholic-charities-parents.
 Id. See also Laurie Higgins, Homosexual Activists Go After Illinois Religious Organizations, Illinois Family Institute News & Opinion (Mar. 3, 2011, 07:44 AM), http://www.illinoisfamily.org/news/contentview.asp?c=35177.
Press Release, Christian Legal Centre, Amazement as High Court suggests Christian beliefs harmful to children. Fostering by Christians now in doubt (Feb. 28, 2011), available at http://christianconcern.com/press-release/amazement-as-high-court-suggests-christian-beliefs-harmful-to-children-fostering-by-ch. See also Johns Fostering Case: Effects of the Ruling and Further Analysis, Christian Concern (Mar. 4, 2011), http://www.christianconcern.com/our-concerns/sexual-orientation/johns-fostering-case-effects-of-the-ruling-and-further-analysis; High Court Judgment suggests Christian beliefs harmful to children. Fostering by Christians now in doubt, Christian Concern (Feb. 28, 2011), http://www.christianconcern.com/our-concerns/religious-freedom/breaking-news-high-court-judgment-suggests-christian-beliefs-harmful-.
 See Ward v. Wilbanks resource page, Alliance Defense Fund (July 27, 2010) http://www.alliancedefensefund.org/News/PRDetail/141.
Martin Luther King, Jr., “I Have a Dream” speech delivered at the Lincoln Memorial, Washington, D.C., Aug. 28, 1963, available at http://www.americanrhetoric.com/speeches/PDFFiles/Martin%20Luther%20King%20-%20I%20Have%20A%20Dream.pdf.
Senator Barack Obama, “Call to Renewal Keynote Address,” Call to Renewal Conference on Building a Covenant for a New America, June 28, 2006, available at http://obamaspeeches.com/081-Call-to-Renewal-Keynote-Address-Obama-Speech.htm.