Religious liberty protection legislation in the United States
In the United States, a religious freedom bill is a bill that, according to its proponents, allows those with religious objections to oppose LGBT rights in accordance with traditional religious teachings without being punished by the government for doing so. This typically concerns an employee who objects to abortion, euthanasia, same-sex marriage, civil unions, or transgender identity and wishes to avoid situations where they will be expected to put those objections aside. Proponents commonly refer to such proposals as religious liberty or conscience protection.
Opponents of such bills frame them instead as "religious refusal bills", "bigot bills", or as a "license to discriminate", highlighting how much legislation allows individuals and businesses to openly espouse prejudice, especially against LGBT individuals.
Controversy.
Legal philosophy.
Law professor Richard Thompson Ford argues that "overly broad conceptions of civil rights protections have turned these important laws against themselves," and that, while each protection may seem coherent on its own, "in combination they constitute a recipe for unresolvable conflicts of absolutes." A less abstract and more pragmatic approach, he argued, might be to accord greater protection to minority religions and to serious injuries. The famous case of "Masterpiece Cakeshop" fits neither criterion, then, according to Ford, as the baker belonged to the majority Christian religion and the customers weren't significantly injured by having their wedding cake request denied.
Moral epistemology.
Other problems include how to demonstrate whether a belief is sincere, whether it is factually informed and accurately corresponds to the situation at hand, and whether it is indeed "religious" or "moral" in its origin. Indiana University law professor Steve Sanders said that "often there is no way to differentiate between genuine religious convictions and beliefs that are made up out of convenience...an employee who merely has a phobia toward transgender people might still claim a 'religious' exemption, and the employer would have little choice but to grant it."
Rhetoric.
One type of rhetorical frame depicts the religious freedom controversy as a war of identities. The key is selecting identities to illustrate the problem in a way that the illustration speaks for itself. For example, one Catholic nun identified the question of "favoring the civil liberty rights of transgender individuals over the conscience rights of public service providers"; she sided with the public service providers. For a contrasting example, Rev. M Barclay, an openly transgender deacon in the United Methodist Church, described the same question as "Christians using power and privilege to target marginalized demographics like the LGBTQ community". These different angles are discussing the same question.
Legal challenges.
After the January 2018 creation of the Conscience and Religious Freedom Division of the U.S. Dept. of Health and Human Services, Reuters reported that "legal and medical ethics experts said that such exemptions [to antidiscrimination law] have legal limits and would be challenged in court."
In April 2018, a supporter of President Trump was asked to leave a bar in New York City for wearing a "Make American Great Again" hat. The customer's lawyer claimed in court that "The Make American Great Again hat was part of his spiritual belief" (as it is illegal to discriminate against people for their religious beliefs), while the bar's lawyer claimed that "supporting Trump is not a religion." The judge dismissed the case.
In October 2018, conservative Christian groups filed two lawsuits to challenge LGBTQ non-discrimination laws in Austin, Texas: a federal lawsuit, "U.S. Pastor Council v. City of Austin," and a state lawsuit, "Texas Values v. City of Austin."
Bakery owners Melissa and Aaron Klein were fined by the state of Oregon for refusing in 2013 to sell a cake for a same-gender wedding. They raised money from supporters and appealed to the U.S. Supreme Court, which decided in 2019 to send the case, "Klein v. Oregon Bureau of Labor and Industries," back to a lower court.
In September 2019, the Arizona Supreme Court ruled that the Phoenix art studio Brush &amp; Nib cannot be required to print wedding invitations for same-sex couples despite an existing nondiscrimination ordinance in the city. The studio's owners successfully argued that producing custom art for same-sex couples would amount to an endorsement of the marriage, which would violate their religious belief against same-sex marriage.
In 2023, U.S. District Judge Brantley Starr held lawyers for Southwest Airlines in contempt and ordered them to attend “religious-liberty training” from the Alliance Defending Freedom. In 2024, the U.S. Court of Appeals for the Fifth Circuit blocked this order.
Support.
From U.S. government.
In May 2018, President Trump signed an executive order creating the White House Faith and Opportunity Initiative, an expansion of existing initiatives created by Bush and Obama. Agencies and offices in the executive branch will have a liaison to the newly expanded initiative if they do not already have a faith-based program of their own.
According to the executive order, the Faith and Opportunity Initiative will "notify the Attorney General, or his designee, of concerns raised by faith-based and community organizations about any failures of the executive branch to comply with protections of Federal law for religious liberty" and seek to "reduce...burdens on the exercise of religious convictions and legislative, regulatory, and other barriers to the full and active engagement of faith-based and community organizations in Government-funded or Government-conducted activities and programs."
In August 2019, the U.S. Department of Labor proposed a new rule to exempt "religious organizations" from nondiscrimination law, saying that such organizations "may make employment decisions consistent with their sincerely held religious tenets and beliefs" and that federal law "should be construed to provide the broadest protection of religious exercise recognized by the Constitution and other laws, such as the Religious Freedom Restoration Act."
In September 2020, the Trump administration proposed that the United Nations emphasize "religious freedom" in place of LGBTQ rights. It had obtained signatures from 57 other countries for its proposal to redefine the U.N.'s understanding of international human rights.
From U.S. activists.
A coalition of conservative Christian organizations called Project Blitz supports, as of May 2018, over 70 bills across the United States, many of which are religious liberty bills. One of the Project Blitz leaders said in a conference call that the goal of having so many similar bills was to force opponents to "divide their resources out in opposing this." In 2017, the Congressional Prayer Caucus Foundation produced a 116-page "playbook" with model legislation; the name "Project Blitz" is not used in this report.
Contexts in which 'religious freedom' permits discrimination.
Healthcare.
Many healthcare types are potentially covered by conscience-protection laws. In the U.S., as of 2013, these laws "are increasingly being written in such a way that they would capture mental health professionals".
On January 18, 2018, the United States Department of Health and Human Services announced the creation of a new division within its existing Office for Civil Rights (OCR). The new division is called the Conscience and Religious Freedom Division. It was created to enforce federal laws related to "conscience and religious freedom." That same day, Indiana University law professor Steve Sanders criticized the new approach as having "the potential to impede access to care, insult the dignity of patients, and allow religious beliefs to override mainstream medical science."
Positions of medical organizations.
Many professional organizations for physicians and other healthcare providers have ethics codes that forbid members from refusing care to patients.
The ethics code of the American Medical Association allows physicians to "refuse to participate in torture, interrogation or forced treatment" but not to deny care based on a patient's "race, gender, sexual orientation, gender identity, or any other criteria that would constitute invidious discrimination."
The American Psychological Association believes that students need to learn their future "ethical obligations regarding non-discrimination" and requires broad-based diversity training "because they may grow and change in their beliefs, preferences in populations with whom they would like to work, geographic region, etc." While in some cases it may be appropriate for a mental health provider to refer a patient to another provider, this is not always practical, especially in "schools and rural communities." The organization opposes conscience-clause legislation, seeing it as an "intrusion of state legislatures into the education and training of mental health professionals".
The American Academy of Pediatrics supported repeal of Tennessee's faith-healing law allowing parents to seek "treatment by spiritual means through prayer alone" for their children. In 2008, the organization opposed conscience-clause legislation proposed at the federal level. It released a statement that physicians practicing reproductive medicine, as with any other kind of medicine, have "the obligation to talk with patients about all of their options and, for services which
cannot or will not be provided, refer them to someone who can help them without delay".
Scott Johnson, former president of the American Association for Marriage and Family Therapy, said that conscience-based exemptions from discrimination look "simply like prejudice" and that "the problem with conscience is that it can let us do evil as well as good." If a therapist violates AAMFT's Code of Ethics, the organization can remove that person's membership in the professional organization even if state law permits the therapist's behavior. The 2012 version of the Code of Ethics "does not speak directly to matters of therapist values or conscience."
Religious schools.
In 2006, California passed the Nondiscrimination in State Programs and Activities Act (SB 1441) to withdraw state funding from private universities that enforce a "moral code" regarding students' sexual orientation or gender identity. Karen England, executive director of the Capitol Resource Institute, described this as "an outright, blatant assault on religious freedom.”
Between 2013 and 2015, the federal government granted over 30 exemptions to religious colleges who did not wish to comply with federal antidiscrimination law applying to gender identity and sexual orientation, according to a report by the Human Rights Coalition.
In 2017, the "Huffington Post" examined "private school choice programs that give public money to private religious schools" in the United States and found that "at least 14 percent of religious schools take an active stance against LGBTQ staff and students." In 2020, the Supreme Court decided in "Espinoza v. Montana Department of Revenue" that states cannot discriminate against religious schools when allocating public funds.
Religiously motivated reasons for discrimination.
Contraception and abortion.
Following "Roe v. Wade," the landmark abortion rights Supreme Court decision in 1973, "laws were passed to ensure that hospitals or clinics that received federal funds would be unable to force medical personnel who objected to abortion or sterilization on the grounds of their 'religious beliefs or moral convictions' to perform those procedures." At the end of President George W. Bush's administration, "a new 'conscience clause' took effect, cutting off federal funding for institutions that failed to accommodate employees' religious or moral objections."
To those who believe abortion is murder, it may seem "a particularly deadly form of authoritarianism" to "demand that physicians kill their patients or help to arrange for the killing, even if they believe doing so is wrong." By 2005, in at least a dozen U.S. states, pharmacists had cited their personal morality in their refusal to fill prescriptions for birth control, including "emergency contraception" to prevent a fertilized egg from implanting in the uterus.
On July 8, 2020, the Supreme Court ruled in "Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania" that employers and universities may opt out of the Affordable Care Act requirement for private health insurance plans to cover women's contraception without charging any "out-of-pocket cost" to the woman. Prior to the Supreme Court decision, the Trump administration had moved to provide exemptions to employers who claim moral or religious objections to providing contraceptive coverage to their employees, and, in January 2019, a federal judge had blocked these rules from taking effect in 13 states and the District of Columbia.
On March 4, 2019, the U.S. Department of Health and Human Services (HHS) published a Final Rule that would have changed whether family planning service providers were eligible for Title X grants. The next day, the State of Washington filed a lawsuit against HHS (State of Washington v. Azar), complaining that the new HHS rule was in violation of Title X as well as Washington state law. Under Title X, pregnant patients must receive "nondirective pregnancy counseling" (i.e. they must be advised of their options in a factual and unbiased manner), and clinics that provide abortion services should remain eligible for funds. Were the new HHS rule to take effect, nearly all of the current Title X healthcare providers in the State of Washington would be denied