The phrase “freedom of religion” has long been used as a substitute, of sorts, for the protections included in the first amendment to the United States Constitution. As such, it has always been considered to describe a positive concept, a contrast to the undemocratic and often despotic systems that the English colonists rejected when they wrote that document. The wording of the first amendment proscribes the government from “establishing” an official religion and “prohibiting the free exercise thereof.” Prior to the adoption of the constitution in 1789 the thirteen original colonies had held a mixed record regarding religion, most of them enforcing bans on anything other than Anglican or Congregational practices. Only one (Pennsylvania) had maintained an unbroken record of religious freedom and many had repeatedly prosecuted members of unapproved religions. The First Amendment was viewed by its authors as a solution for colonial persecution as much as European.
The United States has not always lived up to the ideal set out in the first amendment’s establishment clause. Official policies often have negatively targeted the customs of minority religions, including those of Catholics, Jews, Muslims, Mormons, Buddhists, and Native Americans. Many government bodies at all levels have carried on a tradition of beginning their meetings with a Christian prayer. When government-funded schools were established across the country after the civil war almost all of them were saturated with Protestant assumptions and doctrines; that is why the Catholic Church soon established its own widespread educational system. Creeping secularism, largely enforced by legal challenges and the resulting court decisions, has gradually removed the most blatant of these examples of Christian preference. But there has always been, and continues to be, a backlash from some elements of the Christian majority.
In most cases the resistance has come from local opponents, groups that resent losing the sectarian prayers that had “always” preceded their city council meeting or that were broadcast daily over the intercom with the morning classroom announcements. In their summation the courts are chasing God out of our public spaces and accelerating moral decay within our society. They have often threatened and shunned anyone who insisted on removing “their” prayers or other religious displays. At times, as now, these local efforts become part of a nationalized movement and obtain support from nationally-funded legal and propaganda organizations.
Resistance to a secularized government reached a high point during the first decade of the cold war, a dogmatic battle often framed as being against “godless Communism”. Much of the early rhetoric emphasized religion, and especially Christianity, as a primary weapon against the enemy. The pledge of allegiance to the United States flag was adopted by Congress at the beginning of World War II, but that version did not contain the two words “under God” until 12 years later, in 1954. Although the phrase “In God We Trust” had been added to some coins during the civil war in an effort to demonstrate that the supreme being was, indeed, on the side of the Union, it did not become the official motto of the United States until 1956, and was not universally applied to all currency until one year after that. This burst of pro-religious fervor subsided somewhat after the collapse of the House Un-American Activities Committee and the exposure of Senator Joe McCarthy, but it was soon revived and nurtured by the rise of the Christian Right movement.
The United States now finds itself in another active period of pro-Christian intrusiveness. We have well-funded organizations such as Focus on the Family and the Family Research Council that use media and legislative lobbying and legal challenges to promote what they view as Christian policies in government. Conservative television and radio outlets reinforce such efforts, pushing a narrow sectarian doctrine in verbal crusades ranging from attempting to ban abortion and gay marriage to expanding public prayer to the posting of the Protestant Ten Commandments and the phrase “In God We Trust” in government buildings. In most cases, their efforts take form in laws passed by state legislatures, laws which have been almost universally challenged in court and rejected as being unconstitutional.
With the election of President Trump, however, the agenda of the Christian Right has expanded upward into the federal system. The Republican-led Senate has prioritized the appointment of federal judges who are approved by the Federalist Society, an arch-conservative organization. This preference began in the late Reagan years, but appointments of conservative judges has exploded with the elimination of the filibuster rules that used to control judicial approvals. Five members of the current Supreme Court (Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts) are, or have been, members of the Society, a fact that has newly inspired those who believe in enforcing extreme religious doctrines in the form of reversing the 1973 decision in Roe v. Wade and many of the recent expansions of LGBTQ protections.
The Christian right agenda has also moved into the federal bureaucracy. Most recently, a rule promulgated by the U.S. Department of Health and Human Services (HHS) has turned the concept of religious freedom on its head. It is titled “Protecting Statutory Conscience Rights in Health Care,” and it states that any health care worker can refuse treatment to anyone who offends their own personal religious or moral beliefs. The HHS rule places no limits on what would constitute a religious or moral objection. It also states that any medical facilities that try to keep their employees in line by enforcing their own non-discrimination policies may be subject to loss of any federal funding. This is an agency of the federal government, in effect, promoting specific sectarian doctrines by encouraging health-care employees to apply them to any patient who requires their services, whether that patient believes in that doctrine or not.
We must recognize that there is potential for conflict here. Government efforts to reduce discrimination in commerce and services have increased enormously in recent decades. Where once it was common-place for people to refuse services to a variety of minorities—Jews, Muslims, black people, LGTBQ people, and even, further back, Irish and Italians—it is now largely illegal to do so. The conflict can come from the part of the First Amendment that says “prohibiting the free exercise thereof.” Does a person’s religious freedom imply the right to apply their preferred doctrine or sectarian interpretation to the detriment of others who do not share their preferences? Is the government constrained from enforcing a non-discrimination statute if it conflicts with the personal religious preferences of a person who wants to discriminate? This is a serious question, especially in health care, a field in which the very lives of patients can be endangered by the decisions of individual workers. What if an ambulance driver refuses to transport a trans or LGBTQ person? What if a hospital refuses to treat a woman with an ectopic pregnancy because it would end the life of the fetus? Some pharmacists have refused to dispense specific birth control drugs that they regard as abortifacients, even to customers for whom that drug is prescribed for unrelated medicinal purposes. What if that pharmacist is the only one available in a small town?
The HHS denial of service rule is a threat to the lives of many different people whenever they interact with any aspect of our health care system. It is wrong to allow any people who are tasked with providing a public service—of any type—to discriminate on the basis of race or sex or religion or sexual preference. It is especially wrong, and especially dangerous, to allow someone in the health care business to do so. Yet this is what the leaders of the HHS are planning to do. Freedom of religion is a vitally important concept, but it should not be twisted into a freedom to discriminate against others.