Editor’s Note: Americans United staff members have been pulling together material to illustrate what’s at stake in the battle over filling Supreme Court Justice Ruth Bader Ginsburg’s seat. We’ll be exploring these issues over the next few days. Today’s installment looks at the question of religious freedom being used to discriminate against or to harm others.
The Supreme Court may be on the verge of adopting a new definition of religious freedom, one that grants sweeping powers to use that principle to discriminate against others and cause them harm by denying people health care, employment or services.
Religious freedom is a cherished right, but it is not absolute. Over the years, the high court has grappled with the question of the limits on religious freedom but, generally speaking, has rejected arguments that the Constitution requires religious exemptions that result in harm to others. For example, in 1968 the Supreme Court refused to entertain the notion that a restaurant owner in South Carolina could refuse to serve non-whites, even if he claimed that it was his sincere belief that the Bible called for segregation of the races. The court called the argument “patently frivolous.”
This standard is now being eroded. In recent years, for example, business owners have demanded a “religious freedom” right to deny their employees access to no-cost birth control guaranteed by the Affordable Care Act (even though the employers are not required to pay for it). Some owners of stores and small businesses have insisted that, due to their religious beliefs, they will not serve certain classes of people, such as LBGTQ customers, non-believers, Muslims, etc.
The Supreme Court has not yet ruled that the constitutional guarantee of religious freedom grants an affirmative right to discriminate in secular settings, but it has issued a series of rulings that chip away at the idea that religious freedom should “do no harm.”
Religious Right legal groups have brought several cases in the hopes of securing a religious-freedom-based right to discriminate. In November, the Supreme Court will hear Fulton v. City of Philadelphia, in which a taxpayer-funded, faith-based foster care agency wants the court to create a constitutional right to discriminate against qualified families because they are LGBTQ or otherwise don’t follow an agency’s religious tenets.
An adverse ruling in this case could have far-reaching ramifications and could extend beyond foster care agencies and create a sweeping license to use religion to discriminate in other taxpayer-funded services.
Justice Ginsburg was a strong proponent of the idea that religious freedom should never be used to harm others. As she observed in one case, “[y]our right to swing your arms ends just where the other man’s nose begins.”
The next Supreme Court justice must also acknowledge the “do no harm principle” and apply it correctly. Our civil rights, health care and religious freedom are at stake.
Americans United will be on the front lines advocating for a new Supreme Court justice who respects the constitutional principle of church-state separation. Become a member to join us in this battle.
Photo: People gather outside the Supreme Court to honor Justice Ruth Bader Ginsburg