Religious Liberty: (Not) For All

Ken Estey Associate Professor, Author, Brooklyn College

Freedom of religion is a central idea in the United States. Most descriptions of U.S. history emphasize flight from religious repression as the main motivation for colonial settlement. The U.S. Constitution enshrines the idea of freedom in the very first line of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Proponents argue that religious liberty means that everyone may participate in a free “marketplace” of religious ideas and practices. Neither atheists nor believers pay taxes to support a state church. Believers are free of taxes on property and activities associated with their church, temple, or mosque. In this open market, the benefits are said to be spread evenly – from the rich to the poor, from the 1% to the working class. However, institutional actions in the name of religious freedom can have negative consequences for working-class people.

No one seems to question whether individuals should be free to follow their conscience or to practice the religion of their choice (or no religion at all). But how should we evaluate religious freedom claims for institutions, especially when they involve workers, services, and public funds? Discrimination in certain employment practices is generally non-controversial. For instance, a church would not be subject to discrimination claims if it refused to consider rabbis as candidates for its pastoral leadership.

But other employment cases are not as clear cut. For example, in the unanimous U.S. Supreme Court decision, Hosanna-Tabor Church v. Equal Employment Opportunity Commission (2012), the Court not only recognized a “ministerial exception” to employment discrimination laws, but extended it. Cheryl Perich, a teacher at Hosanna-Tabor Evangelical Lutheran Church and School, filed suit claiming that the school violated the Americans with Disabilities Act (ADA). She became sick and was on leave for several months. Upon her return, she faced pressure to resign but refused to do so, and the school terminated her employment. In the court case, the school successfully argued that she functioned as a minister in that context. In the ruling, the court valued the religious freedom doctrine over Perich’s medical condition and ADA regulations. The long-term consequences of this ruling remain unclear. How much deference will the courts give to  religious organizations rather than to employees?

Courts have also applied the principle of religious freedom to for-profit corporations.  For example, Hobby Lobby, an otherwise secular corporation owned by Christians, won its bid to avoid providing contraceptive care to its workers. As I wrote earlier this year, “the application of the doctrine of religious liberty to Hobby  Lobby means that the religious beliefs of five corporate owners take precedence over the beliefs and interests of nearly 13,400 workers in 535 stores across the country. Further, the ruling grants religious freedom to the corporation, giving it legal status as a ‘person’ whose rights must be protected as well.”

Religious freedom cases also affect working-class people beyond the workplace. In April, the Supreme Court heard oral arguments over whether a church was eligible for a grant from a state program aimed at non-profits. Trinity Lutheran Church of Columbia, Missouri sought a grant from a state program aimed at resurfacing playgrounds with recycled tires. The state initially denied Trinity’s application on the basis of Section 7 of the state constitution, which stipulates that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”

What could possibly be wrong with fixing a playground? After all, although it is on church property, children from the community around Trinity Lutheran may use it as well. Just the week before, on April 13, the new Republican governor of Missouri, Eric Greitens issued a statement supporting the church’s claim: “Before we came into office, government bureaucrats were under orders to deny grants to people of faith who wanted to do things like make community playgrounds for kids… That’s just wrong… We have hundreds of outstanding religious organizations all over the state of Missouri who are doing great work on behalf of kids and families every single day. We should be encouraging that work.”

The controversy at Trinity Lutheran Church is much bigger than their playground. Will the Roberts court use this case, despite the governor’s announcement, to strike down Missouri’s bar on direct state aid to religious institutions – and in the process also overturn similar prohibitions in 37 other states? A broad ruling could have significant consequences, including direct public funding for private, religious schools – most of which are Christian. That may be one rationale for the suit over the playground grant. The Alliance Defending Freedom (ADF), Trinity’s legal representation, states on its website that the “Christian community gained growing awareness that the threats to its freedom were multiplying. The legal system, which was built on a moral and Christian foundation, had been steadily moving against religious freedom, the sanctity of life, and marriage and family. And very few Christians were showing up in court to put up a fight. By funding cases, training attorneys, and successfully advocating for freedom in court, Alliance Defending Freedom changed that.”

Trinity Lutheran Church is a member congregation of the Lutheran Church – Missouri Synod, a conservative evangelical denomination, well to the right (theologically and politically) of fellow Lutherans in the larger, more liberal Evangelical Lutheran Church in America (ELCA). Trinity’s physical location is a few miles from Columbia’s downtown but a million miles from its most economically challenged neighborhoods. The census tract in which Trinity is located has an average income of just over $78,000, while two census tracts to the east, average incomes barely reach $12,000. Trinity’s census tract is 86% white while Columbia as a whole is 77% white. The poverty rate for all of Columbia is nearly 25% against the state average of almost 16%.  In this case, the distribution of public funds is not only diverted directly to a church but a congregation that is already in an economically privileged neighborhood. The cost to refurbish Trinity’s playground won’t break Missouri’s bank. And perhaps the church does not minister only to its most proximate neighbors but also draws people from around an economically challenged city.

But this case suggests what might be heading our way: in the name of religious freedom, scarce public funds, those very funds on which the working classes most depend for public services, might be diverted toward private ends that benefit those who already have more resources, ends that may not enhance the common good. The case of Trinity Lutheran Church might only be a playground now, but it could be the plaything for those who want to redistribute public funds for the direct benefit of religious bodies. How will public institutions fare, the ones that working-class people depend upon most, if they are starved of funding as public dollars move into the hands of private institutions that are already unburdened by any taxation?

Religious liberty claims have been given significant deference in the United States. As these U.S. Supreme Court cases suggest, it has become very difficult to set limits on institutions that claim exemptions on religious liberty grounds. In the interests of individual workers and the working class in general, these limitations serve to preserve people’s well-being in the workplace and beyond. But the struggle to do so will be incredibly difficult unless economic justice can also be recognized in public policy matters. For now, though, private religious concerns are using the principle of religious freedom to set the public agenda.


Reposted from Working-Class Perspectives.

Ken Estey is an associate professor of Political Science at Brooklyn College and the author of A New Protestant Labor Ethic at Work. His research centers on the intersection of politics and religion with a particular focus on labor and Christianity.