Religious Liberty and Civil Rights

Indiana citizens continue to engage in arguments over RFRA, and I was recently asked to address our local Pride organization on the presumed conflict between religious liberty and civil rights.  Below is an abbreviated version (still long–sorry) of my remarks.


A lot of anti-LGBT bigotry is justified as “religious liberty.” There was RFRA, of course, not just in Indiana but in several other states, and most recently, the Republican Platform endorsed both a national version of RFRA and passage of a so-called “First Amendment Defense Act,” which would allow any entity that receives public funding to discriminate against LGBTQ Americans on the basis of religion.

So this might be a good time to review the history and purpose of the religion clauses of the First Amendment– the Establishment Clause and the Free Exercise Clause—that together define this country’s approach to the subject of religious liberty.

What the phrase “Religious liberty” meant to the Pilgrims who landed at Plymouth Rock  was the “liberty” to impose the correct religion on their neighbors. The idea that Church and State could even be separated would have been incomprehensible to the Puritans; the liberty they wanted was freedom to “establish” the True Religion, and to live under a government that would impose that religion on their neighbors.

The Puritans defined liberty as freedom to do the right thing, to impose the correct religion. The religious wars in Europe were all about which religion government should impose.

A hundred and fifty years later, however, the men who crafted a Constitution for a new nation were products of an intellectual paradigm shift that had produced a very different understanding of the nature of liberty. Between the time the Pilgrims landed and the time that George Washington took the oath of office, the philosophical movement we call the Enlightenment had given birth to science and empiricism, privileged reason over superstition, and caused philosophers like John Locke and others to reconsider the purpose and proper role of government.

After the Enlightenment, liberty—religious or otherwise—had come to mean a right to self-government, the right to decide for oneself what beliefs to embrace. Liberty now meant personal autonomy, and the right of individuals to live their lives in accordance with their own consciences, free of both state coercion and what the founders called “the passions of the majority.”

Although the new government got its legitimacy from majority rule, from the “consent of the governed,” the Bill of Rights limited what government could do even when a majority of citizens approved.

The problem we have in today’s America is that, although our Constitution and legal framework were products of the Enlightenment, the country is still home to a whole lot of Puritans. What we sometimes call the “culture wars” are part of an ongoing conflict between people holding very different visions of liberty.

The Mike Pence’s of the world aren’t just against equal rights for gays and lesbians, they aren’t just anti-abortion and anti-birth control. They are deeply Puritan: anti-science, anti-reason, anti-diversity. They are absolutely convinced of their own possession of the Truth, and like the original Puritans, absolutely convinced that a proper understanding of “religious liberty” should give them the right to make everyone else live by their particular Truth.

The fact that these irony-challenged theocrats are the same ones running around proposing legislation to prevent imposition of “Sharia law” would be funny if it weren’t so dangerous.

Under the Constitution as it actually exists, Americans have an absolute right to believe anything we want, but we don’t have an absolute right to act on those beliefs. (You can believe God wants you to sacrifice your first-born, but we don’t let you do that.) You only have to listen to some of the public debates about civil rights to understand that people have a lot of trouble understanding that distinction.

Let me give you an example.

When South Bend was considering adding sexual orientation to the City’s Human Rights ordinance, opponents objected that the religious exemption that had been included was inadequate because it only covered religious organizations and didn’t protect “religiously motivated” hiring and firing decisions.

The exemption for religious organizations is constitutionally required–if your religion disapproves of gay people, or unwed mothers, or atheists, the Free Exercise Clause of the First Amendment forbids government from forcing your church to employ such people for jobs having theological dimensions.

For our friendly culture warriors, however, protecting the right of churches and religious organizations to follow the dictates of their faith–even when those dictates are inconsistent with civil rights laws–isn’t sufficient. According to their argument, if I can’t fire employees I discover are gay, if I can’t refuse to rent my apartment to LGBT folks, then the government is denying me religious liberty. (This is a variant of the argument that anti-bullying legislation infringes the “free speech rights” of the bullies.) The argument is apparently that I should be able to pick on gay people—or black people, or women, or Muslims–if I claim that my motivation is religious.

Obviously, an exemption for “religious motivation” would eviscerate civil rights laws.

The religion clauses of the First Amendment require that government be neutral between religions, and between religion and non-religion. To use a sports analogy, government is supposed to be an umpire, not a player. But there are people who simply cannot abide the notion of a neutral government, people who experience “live and let live” and civic equality as affronts to the primacy to which they feel entitled. In that peculiar worldview, a government that insists on fair play for gay people in the public sphere is a government that’s denying them religious liberty.

This is the same argument that erupted when Congress enacted the 1964 Civil Rights Act. Opponents argued that being forced to hire or do business with women or people of color violated their liberty to choose their associates. And they were correct; it did limit their liberty. In a civilized society, our right to do whatever we want is constrained in all sorts of ways; I don’t have the liberty to take your property, or play loud music next to your house at 2:00 a.m., or drive my car 100 miles per hour down a city street. And so on.

Here’s the deal: The guy who opens a bakery– or a shoe store or a bank or any other business– relies on an implied social contract. He expects the local police and fire departments to protect his store, he expects local government to maintain the streets and sidewalks that enable people to get there. He expects state and federal agencies to protect the country, to issue and back the currency used to pay for his product, to make sure that other businesses and institutions are playing by the rules and not engaging in predatory behaviors that would put him out of business. We the People of all races, religions, genders and sexualities pay the taxes that support those services, and in return, We the People expect retailers and others who are “open for business” to provide cakes or shoes or other goods to any member of the public willing to pay for them.

Opening for business implies a “come one, come all” invitation to the general public.

If you don’t approve of gay people, or African-Americans, or Muslims, or whoever—the Constitution says you don’t have to invite them over for dinner. You have the right to exclude “sinners” from your church, your private club and your living room.

Your hardware store, not so much.

We live in a society with a lot of other people, many of whom have political opinions, backgrounds, holy books, and perspectives that differ significantly from our own. The only way such a society can work–the only “social contract” that allows diverse Americans to coexist in reasonable harmony–is within a legal system and culture that respects those differences to the greatest extent possible. That means laws that require treating everyone equally within the public/civic sphere, while respecting the right of individuals to embrace different values and pursue different ends in their private lives.

When the government refuses to make everyone live by a particular interpretation of a particular holy book, that’s not an attack. It’s not a War on Christianity. It’s recognition that we live in a diverse society where other people have as extensive a right to respect and moral autonomy as the right we claim for ourselves.

Ironically, a legal system that refuses to take sides in America’s ongoing religious wars is the only system that can really safeguard anyone’s religious liberty. Genuine civic equality is only possible in a “live and let live” system—in an open and tolerant society.

If everyone doesn’t have rights, they aren’t rights—they’re privileges that government can bestow or withdraw. In such a society, no one’s rights are safe.

Here’s the “take away.” A better world is a world where different people with different beliefs, living different kinds of lives, can co-exist without privileging some at the expense of others, which is what the faux religious liberty bills do. That world won’t appear by accident. America has actually made a lot of progress; but right now, we are living through a very scary political moment, a moment that could easily reverse all the progress that’s been made.

We still have lots of work to do.


  1. Bravo Prof. I hope the papers pick that one up
    I really liked :
    “If everyone doesn’t have rights, they aren’t rights—they’re privileges that government can bestow or withdraw. In such a society, no one’s rights are safe.”

  2. I agree wholeheartedly. However, there are many on the right who subscribe to the belief that America is a Christian nation and that the First Amendment’s protection of freedom of religion applies only to Christians.

  3. Great article (speech)!

    The theocrats are supported by the Billionaire Koch brothers who have been using the religious right to garner votes for their own causes. Talk about “irony-challenged”. The Koch’s web includes financing centers and institutes on college campuses (like Ball State) to peddle their ideas, including anti-science rhetoric against climate change, tobacco-use, but want creationism taught in school.

    When you look closer at ALEC & Koch network, you see exactly why they have aligned with Puritans who want their government to use “their true religion” to eradicate “false notions” uncovered or proven by science.

    It’s not that the Koch’s believe the Puritan nonsense – it’s because they and their corporate partners want to continue selling tobacco and oil to us. It’s 100% profit motivated. They’ve been using the Evangelicals and poor whites (racists) to garner votes for their cause (profits).

    Sadly, while our Democratic Party officials don’t claim to be members, many of them do accept political donations from corporate members of ALEC.

    They use to say, “Two topics ought never be discussed at the dinner table – religion and politics.”

    We better be talking about them in 2016.

  4. Today there is a report a Muslim woman completely covered was told to leave a store in Gary. The manager said it is a high crime area. Perhaps the manager spoke the truth and was concerned about the safety of employees and customers. The
    manager could not be sure the person was female. That’s the purpose of the hajib. Religious freedom vs public safety. Religious bigotry vs human rights, the denigration of women which put the mother of 4 children (left in her car) in that position. Religious freedom includes freedom to be stupid!?

  5. Todd Smekens: “It’s not that the Koch’s believe the Puritan nonsense – it’s because they and their corporate partners want to continue selling tobacco and oil to us. It’s 100% profit motivated.”

    I agree.

    ” They’ve been using the Evangelicals and poor whites (racists) to garner votes for their cause (profits).”

    Poor whites racist? Stereotype much? Affluent whites in Carmel and Geist are not racist? I would bet more racism lies within the confines of affluent white neighborhoods than those much poorer. Carmel votes Republican. All of those movers & shakers and educated lawyers are evangelicals? Give me a break.

    Paul Ogden doesn’t believe in climate change. He is neither poor nor an evangelical. This is another problem within the New Democrat Party (which is really the identity politics wing of the Republican Party).

    I’m interested to read the replies to the incident in Gary. So what happens when public safety conflicts with religious practices?

  6. This is a primitive – and extremely simplistic and manipulative – way of defining RFRA.

    The RFRA actually restricts the state from interfering in our lives, not the other way around. Thanks to the RFRA, my employer cannot force me to work on Sabbath or on Yom Kippur. Thanks to RFRA, my children can still have perfect attendance, even though they do not go to school on Passover.

    To reduce the RFRA to rainbow cupcakes and homosexual weddings is, at least, demagogic and dishonest.

  7. So clearly explained Sheila. I hope that this is always covered in the classes that you teach at IUPUI.

    Sheila, can you explain a little about how/why Congress approved the terms “One Nation Under God” and “In God We Trust” to be placed in our Pledge to Allegiance and on our money?

  8. MartinaLevi has returned with her “primitive – and extremely simplistic and manipulative” vitriol.

    Martina, if you believe that the true intent of RFRA was not designed to limit the civil rights of the members of the LGBT community, then I have a swamp in the Arizona desert that I would like to sell to you.

  9. Nancy,

    The change to the Pledge occurred during the Eisenhower administration. It was evidently intended to send a message to the “Godless Communists.” In both of the cases you cite (I think I’m right about this, but lawyer-readers should check me), the Supreme Court held that these constituted a “de minimus” violation of the First Amendment. (The Court rarely gets out ahead of public sentiment….) In other words, yes, these things technically violate the Establishment Clause, but “no big deal.” (Can you imagine the outcry if our coins said “In Allah We Trust”?)

    And yes, I teach all of this…

  10. This is so excellent! I’d really like to read the full text. Can you set up a link to read it on-line?

  11. Thanks for the explanation to my question, Sheila.

    When I finished reading this morning’s blog post I thought again that you really should run for at least a State office, because the citizens of Indiana need a knowledgable person like you to represent us. However, I recognize that I will have to be satisfied that you are passing on your civics knowledge to students who may become our future leaders.

  12. Wonderful explanation, thanks. I would be interested in the questions asked after your talk. Where there any religious people who held different views?

  13. Please point me toward the “Live and Let Live” candidates in the 2016 election cycle. Thanks in advance for answers.

  14. Enlightenment was and is a wonderful thing. We like to think that our founders were exceptionally enlightened people and they were but only sort of. Closer to the whole truth and nothing but is they were exceptional people who lived in enlightened times.

    We live in our times and unfortunately our times are a struggle between enlightenment and neolibralism. Enlightenment, as Sheila explains way better than I, promises freedom. Neolibralism however promises skewing wealth distribution. Skewed happened a long time ago. Skewing means that it will continue to get worse as long as neolibralism is applied to our society.

    In that way it’s like atmospheric greenhouse gases. What’s there today we are stuck with for at least 1,000 years. Simply the reality of nature. The amount already there has changed, and will continue to change even more for decades, our weather and sea level. That very costly fact, that weather and sea level will continue to worsen will continue to be true until we stop adding any more, and for decades beyond, which requires stopping the addion of any more net greenhouse gas, the key word being any. No more fossil fuel burning.

    We are very conservatively 100 years away from being able to do that even if we rush like crazy.

    If the spread of enlightenment in America took that long it’s very likely that our founders would have been puritan and instead of freedom we’d have been born under Christian Sharia law.

    Tempus fugits all of the time. Neolibralism distributes more wealth up only all of the time. Additional greenhouse gas concentration changes weather and sea level all of the time and beyond.

    The sum total of that is that we are in unsustainable, which is the same as unstable, times now and for the foreseeable future. We will crash due to both neolibralism and fossil fuel use. That crash will be on us. At this point we can only attempt to minimize, we have no chance to eliminate, the crash. And we haven’t really even started reducing fossil fuel use or neolibralism yet.

    We have been given the gift of Trumpence as a goldilocks moment for stopping the worsening of the neolibralism problem. We have been given Elon Musk for starting to slow the worsening of our weather and sea level problem.

    And we are acting indecisivly.

    We are aimed at just desserts. But not for us, for the innocent next generation.

  15. Interesting articles from Russia Today (Putin Land). Authorities in a Paris suburb have warned the owner of a halal supermarket that he must start selling pork and alcohol if he wants to remain open. Local residents have complained that they are not able to get a wide range of products at the store.

    Under the terms of his lease, Soulemane Yalcin is obliged to run a ‘general food store’, but the lack of pork products and alcohol at his Good Price supermarket in Colombes are causing a stir in the western-Paris suburb.
    Germany’s food minister is concerned about pork being removed from public menus because of cultural sensitivities, saying accommodating religions requiring halal or kosher should not mean depriving Germans of their favorite traditional dishes.
    Iconic pork sausages banned from Swiss school menus, MPs outraged. The decision to serve only pork-free lunches in several schools in Basel Canton, Switzerland, has been blasted by the country’s conservatives, who accuse local authorities of giving in to religious minorities.

    Four schools in the Binningen district of Basel Canton won’t have pork on their menu in the next academic year, the local council ruled last week.

    I guess a solution would be for everyone to go Vegan. I am not aware of any religion having a problem with broccoli, green beans, tofu, or carrots.

  16. Thank you for your clear explanation. It is amazing to me how often you have to repeat this and it just doesn’t sink in. It is also sad to see how our country has slid from “enlightened” to “medieval” in 200 plus years. Perhaps yesterday’s post gives us a clue.

  17. Louis, do you interpret that as more interference by Russia in the affairs of other countries or mere propaganda to their own citizens or what?

  18. There was a self-described “born again” Christian who agreed with me. His is a welcoming church, and gays are valued members of his congregation. We all need to recognize that–just as it is wrong to assume that all Muslims or all Jews are part of a monolithic whole, neither are all Christians. There are many devout believers who understand the importance of civil rights for everyone.

  19. Great talk, Sheila! I agree with folks that you’d be a wonderful candidate for a state legislative seat, but you may have no desire for elective politics. I wonder if you have read about the proposed law in California limiting the “religious exemptions” of religious universities from civil rights laws. Some religious folks are concerned about this, and perhaps the bill needs to be tweaked. But I don’t think religious colleges and universities should be free to discriminate against women or gays or others–especially when it comes to how they treat students. Now, they do have the right to decide which faculty to hire and to determine their curriculum and to ask students to attend chapel, etc. But some kinds of discrimination are surely wrong even for religious organizations, right?

  20. I could add very little to what Sheila has put forth. It is entirely accurate. It is hard to believe that per Trump a “pig” has written this. GRRR!

  21. Can we say that a lesbian couple that own a bakery, hoping to adopt, would be required by law to bake custom cookies for an evangelical church fundraiser, thats theme is ‘No Gay Adoption.’ Or better yet, for a sorhern baptist church whose lobbying effort requires cookies that read ‘Gay adoption is a sin.’

  22. Are you good with requiring a couple who own a sign making company, whose gay son died serving his country in Iraq, to make “God Hates Fags” signs to be used protesting at their son’s funeral?

  23. William: The Greek chorus who serves as a claque are only interested in defenestrating the opinions of those who do not adhere to the mantra.

    They will focus on your wording or your grammar, without ever addressing the content of your claims. It is not that complicated. RFRA ensures freedom FOR ALL. I live my life the way I want according to my religion and you live yours according to yours.

    Your rights end where mine begin.

    It is very simple.

  24. Pete; your 12:37 a.m. response to William was perfect, thank you.

    I took a mental health day off from politics yesterday; didn’t read this blog in full till this morning. One friend of mine comes to mind regarding the current group of politicians claiming the name “Republican” and their Trump inspired campaign foundation and Pence’s RFRA. He is my friend and neighbor and has kept my house in repair the past 8-9 years; he is also the person I ran to in a panic when receiving an E-mail my son had been found dead in his Florida home. He calmed me, called family members for me then walked me home and stayed till they arrived. He is the one who, unasked and unpaid, mows the full vacant lot between my home and the original elderly owners on the other side. When I can catch him, I give him gas money. The City will cite and fine us if the lot is not maintained. He uses his snow blower to clear our driveways, sidewalks and city sidewalk; also unasked and unpaid. Again, when I can catch him I give him gas money. Among all of the repairs and renovations on my old home, he worked on my backed up sewers 8-10 times till he could no longer resolve the very ugly problems in my basement. He called plumbers and stayed with the them as they inspected the problem and offered their solution to assure they were honest. He also checked their work frequently till it was completed. He has done repairs for the lesbians in the neighborhood; providing the same quality work with reasonable costs. He and I have talked about all of the problems we face in this city regarding crumbling infrastructure and the increasing violent crime rate in recent years. He is a divorced man who continues to be a good father to his children, he is intelligent, honest, caring and funny.

    He is a Republican Catholic and has a “Trump” yard sign.

  25. Not so fast, Sheila. Perhaps you are forgetting the hell the good fellows who bake cookies for us every day at the City Market had to endure, when they were subjected to boycott, death threats, and the like. Perhaps you forget that they were humiliated, chastised, and publicly embarrassed by the fascist militants who would stop at nothing to further their agenda. I don’t forget – some of us don’t forget David and Lily Stockton, and that is why their business flourished and continues to exist.

    There are many examples such as this, nationwide. This one, however, happened right here in our backyard. In case you forgot, here is the link.

  26. Martina Levi: “This one, however, happened right here in our backyard.”

    I must have been mistaken all along. Gee, I didn’t realize Martina Levi was from Indianapolis. Now I’m beginning to wonder……. is she really a “Jew.”

  27. Marv Kramer,

    “I must have been mistaken all along. Gee, I didn’t realize Martina Levi was from Indianapolis. Now I’m beginning to wonder……. is she really a “Jew.”

    Oh, c’mon, Marv, surely you jest. 😉

  28. We make for too many accommodations for religion as it is. There should be no federal or state holidays related to religious holidays. Passover, Christmas, Ramadan, whatever, should be no excuse to miss work or school. Religious attire should not be accommodated when it causes practical problems, particularly safety problems. Your superstitions are not my business, nor should they inconvenience me or cause me problems.

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