Religious liberty is becoming a go-to right for everyone

A legal strategy pioneered by the right has been adopted by the left.

A Southwest Airlines plane prepares to land at Midway International Airport, Feb. 12, 2023, in Chicago. A judge sanctioned Southwest Airlines on Aug. 7, 2023, writing that the airline twisted his words and disregarded his order in the case of a flight attendant who claimed that she was fired for expressing her opposition to abortion. U.S. District Judge Brantley Starr said Southwest acted as if its own policy limiting what employees can say is more important than a federal law protecting religious speech. (AP Photo/Kiichiro Sato, File)

(RNS) — Six years ago, Charlene Carter, a Southwest Airlines flight attendant long opposed to the flight attendants union, posted graphic anti-abortion messages to her co-workers on Facebook. To the union president she sent a photo of an aborted fetus with the message, “This is what you supported during your Paid Leave with others at the Women’s MARCH in DC…You truly are Despicable in so many ways.”

Fired by Southwest for having “crossed the boundaries of acceptable behavior,” Carter sued the airline and the union in federal court, claiming she had been dismissed in violation of federal labor laws and Title VII of the Civil Rights Act because of her sincerely held religious belief against abortion. Last year, a jury found in her favor; the case is currently under appeal.

The Trump-appointed judge in the case, Brantley Starr, then proceeded to order Southwest to reinstate Carter and inform the flight attendants that under Title VII the airline “may not discriminate against Southwest flight attendants for their religious practices and beliefs.” When Southwest informed them instead that Southwest “does not” so discriminate, and sent around a memo telling employees that Carter’s behavior had in fact been unacceptable, an enraged Judge Starr ordered its lawyers to undergo eight hours of religious liberty training by the Alliance Defending Freedom.

ADF is a conservative legal outfit that, besides litigating dozens of cases against Planned Parenthood, runs a legal academy that offers continuing legal education credit to “train you to effectively advocate for religious liberty, free speech, the sanctity of life, and marriage and family.” Oh, and also “opportunities to engage in ADF-related issues, and join in inspiring worship and devotions each day.”

If you want a full-throated denunciation of Starr’s order, take a look at what Washington Post columnist Ruth Marcus wrote on Aug. 9 and Sept. 1. Or, you might ask, “Why not order Southwest’s lawyers to undergo religious liberty training by People United, which is currently challenging abortion bans as a violation of church-state separation?”

Aside from the question of whether advocacy organizations provide evenhanded legal education, the case of the Southwest flight attendant is hardly the open-and-shut stuff of an eight-hour primer in religious liberty law. Yes, Title VII protects employees against religious discrimination. But does that give one employee the right to call another despicable? Should workplaces be forbidden to limit any and all speech that claims a religious basis, no matter how abusive?

The Supreme Court, which in recent years has let religious liberty trump health insurance contraception mandates, pandemic-based in-person attendance restrictions and gender-based anti-discrimination laws, might well decide in Carter’s favor. But that would represent an expanded understanding of Title VII, and possibly of constitutionally protected free exercise as well.

Under the circumstances, it should come as no surprise that folks on the other side of the ideological divide are pushing their own causes on religious free exercise grounds.

I’ve written before about a lawsuit in which five anonymous plaintiffs of different faiths claim that Indiana’s near-ban on abortion violates the state’s Religious Freedom Restoration Act, signed into law by then-Gov. Mike Pence in 2015. Similar suits are proceeding in Florida, Kentucky, Missouri, Texas and Wyoming. 

Now comes a suit filed by the adjunct professor of Islamic art who was denied reappointment at Hamline University in Minnesota for displaying (with due trigger warnings) a classic Persian painting that depicts the Prophet Muhammad receiving his first revelation from the angel Gabriel. After a Muslim student complained, the school’s vice president for inclusive excellence called the display by art historian Erika López Prater “undeniably inconsiderate, disrespectful and Islamophobic.”

López Prater contends that Hamline’s decision to let her go violated both Title VII and the Minnesota Human Rights Act, which makes it unlawful to discriminate against a person “with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment” because of religion. 

The claim is that López Prater was the object of unlawful discrimination because she is not Muslim and was fired unfairly because she failed to conform to certain religious beliefs of others (i.e., that it is improper to view images of the Prophet Muhammad). 

While a federal judge was not entirely persuaded by these claims, she turned down the university’s request to dismiss the case earlier this month. “Although the Court appreciates that Ms. López Prater alleges unusual and somewhat indirect theories for religious discrimination,” wrote U.S. District Judge Katherine M. Menendez, “it does not believe that novelty in this context equates to failure to state a claim.” 

If López Prater’s theory of discrimination makes you uneasy, consider the Supreme Court’s decision in Zubik v. Burwell (2016), which exempted religious nonprofits opposed to providing contraceptive coverage under the Affordable Care Act from even informing the government that they wouldn’t provide such coverage, on the grounds that this would trigger such coverage by another entity and therefore make the nonprofits complicit in it.

You might say that what’s indirect sauce for the goose is indirect sauce for the gander.

There’s a reason we might be discomfited by the rise in religious liberty claims: It falls squarely in the realm of unintended consequences. In 1990, the Supreme Court upset decades of free exercise jurisprudence in its 5-4 decision in Employment Division v. Smith, which allowed Oregon to prohibit the use of peyote by a Native American group even for religious purposes. In his opinion ruling that neutral, generally applicable laws could not be challenged in court as violations of religious free exercise, Justice Antonin Scalia declared:

It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.

But the Smith decision had just the opposite effect by spurring the passage of new federal and state religious freedom protection acts, which in turn opened the gates to a flood of free exercise legal claims. These days judges all over the country must wrestle with a plethora of cases in which each conscience is a law unto itself, must weigh the social importance of innumerable laws against religious beliefs whose centrality is open to question.

Scalia should have been more careful what he wished for.

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