Which Religious-Liberty Protections Mean
Something? A Question for Jonathan Merritt

Protesters at the Moral March on Raleigh (February 13, 2016). Susan Melkisethian via flickr.

Protesters at the Moral March on Raleigh (February 13, 2016). Susan Melkisethian via flickr.

Although I admire Jonathan Merritt’s religion writing a great deal, I was disappointed with his latest Atlantic piece, “Religious-Liberty Laws That Have No Meaning.” Merritt takes conservatives to task for recent state-level legislation that purports to protect either religious liberty or bathroom safety at a cost to sexual minorities. His immediate targets are recent laws in Tennessee (aimed at protecting medical professionals who object to gay marriage and non-marital sex on conscience grounds) and North Carolina (requiring transgender people to use the bathroom that corresponds to gender given on their birth certificate).

Merritt argues that laws of this nature are driven by conservative “fear” and reflect efforts to “‘solve’ non-existent problems.” Neither law is particularly well-written, and the North Carolina law in particular reflects partisan politics (for example, it also prevents cities from enacting minimum wages higher than the state’s). Nevertheless, I worry that Merritt’s withering critique has perhaps unwittingly contributed to a certain kind of progressive narrative as ungrounded as the conservative one that he critiques.

When it comes to understanding clashes between religious liberty and the rights of sexual minorities, there is no one “conservative narrative” and no one “progressive narrative.” For the purposes of this discussion, however, we can talk about a “fear narrative” pushed by some conservatives and a “bigotry narrative” pushed by some progressives.

The fear narrative rallies its base in much the way that Merritt describes: by promoting anxiety and mistrust in reaction to progressive causes, especially those involving sexual minorities. The bigotry narrative is similarly indiscriminate: It views traditional religious beliefs about sexuality as rooted only in animus.

Merritt does a good job critiquing the fear narrative, including highlighting the misguided legislative effort in Tennessee to declare the Bible the official state book. (That might have been a nice gesture in 1816; it makes no legal or cultural sense in 2016.) I also share Merritt’s views about North Carolina lawmakers’ approach to bathrooms. The sexual predator trope advanced by the fear narrative is as galling as it is ungrounded, and that kind of rhetoric does real harm to real people.

But Merritt’s article glosses over some much harder questions. Merritt is right to note the North Carolina law’s troubling focus on bathrooms—matching bathrooms to birth certificates is not a good policy solution. Still, there are other questions that need to be answered, ones not necessarily rooted in bigotry. How do we adjudicate policies about locker rooms and high-school sports teams in a way that would be fair to both transgender students and conservative Muslim students?

On the subject of the Tennessee legislation, Merritt says that “several Christian counselors across Tennessee and the heads of two national Christian counseling organizations said they didn’t know of any mental-health providers who felt their religious liberty was at stake.” But that may be small comfort to aspiring counselors like Julea Ward who stated that her beliefs made her feel both unqualified and compromised to offer relationship advice to same-sex couples. And while Merritt dismisses Ward’s case as “not the problem conservatives make it out to be,” that case began when Ms. Ward was expelled from her program at a public university, a decision upheld by a federal judge before a higher court intervened.

Merritt accuses conservatives of pursuing legislation to solve “nonexistent” problems. But not all problems manifest initially as lawsuits. When the Solicitor General of the United States tells the Supreme Court that tax-exempt status for private religious schools with traditional views about sexuality is “going to be an issue,” it doesn’t seem all that crazy that some of those schools would pursue protective legislation. When a United States congressman tells the president of a Christian college that he is going to do everything in his power to force the college to change its views, the threat does not seem “nonexistent.” When dozens of public and private colleges and universities expel conservative Christian student groups from their campuses, when national columnists call for the end of tax-exemptions for churches and religious groups, and when California legislators propose a bill to strip funding from most conservative religious colleges and universities, I don’t think conservatives are wrong to be concerned. The bigotry narrative perpetuated by some progressives has a clear message for conservative religious schools, ministry organizations, and social services: Change your views or be shut out of society.

What legitimate protections can conservative religious believers work toward in the current moment? That’s a question left unanswered in Merritt’s article. Michael McConnell, Richard Garnett, and I have proposed one answer: federal legislation that focuses narrowly on protecting religious nonprofits. That can and should be done in a way that avoids both the fear narrative and the bigotry narrative. Merritt’s article leaves unclear whether he thinks those efforts are warranted—or if he views all conservative religious believers as “chasing ghosts.”

John Inazu is a law professor at Washington University in St. Louis and the author of the forthcoming book Confident Pluralism: Surviving and Thriving through Deep Difference.

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