A rabbi, an atheist and a Hobby Lobby defender walk into a bar. OK, not a bar. Even better, they walk onto a stage so an audience of people can watch them argue about the future of religious freedom in America.
The National Constitution Center Thursday night hosted a lively debate titled “Is Religious Freedom in Trouble? An Interfaith Discussion” as part of its “America’s Town Hall” fall speaker series, and topics ranged from baking cakes for gay couples, that controversial Hobby Lobby decision about birth control and how religion can be used to skirt anti-discrimination laws.
The panel, moderated by NCC President and CEO Jeffrey Rosen, featured the following:
- Kristina Arriaga de Bucholz, who served for seven years as the director of the Becket Fund for Religious Liberty, a boutique law firm that was described as “the legal power” behind the Hobby Lobby decision. The firm’s taken on other high-profile cases, like the fight to keep “under God” in the Pledge of Allegiance and defending church schools that want to be exempted from federal anti-discrimination laws.
- Dan Barker, a former minister turned atheist who’s now the co-president of the Freedom From Religion Foundation, a nonprofit committed to the principle of the separation of church and state. Barker, a frequent TV commentator, has published a handful of books, including “Losing Faith In Faith: From Preacher To Atheist,” “Life Driven Purpose: How an atheist finds meaning” and “GOD: The Most Unpleasant Character in All Fiction.”
- David Saperstein, the former U.S. Ambassador for International Religious Freedom who served under President Obama. For 40 years, Saperstein was the director of the Religious Action Center of Reform Judaism and oversaw national social justice programming. He’s been called “the most influential rabbi in America” and the “quintessential” religious lobbyist in Washington.
These three covered a lot in about an hour-and-a-half. You can watch the full panel here, or you can read our TL;DW version below. Here are the highlights:
Hobby Lobby and the Religious Freedom Restoration Act
You remember the Hobby Lobby case. That was the Supreme Court’s 5-4 decision that extended religious rights to for-profit corporations after Hobby Lobby leaders refused to provide certain birth controls to their employees under the Affordable Care Act, citing religion.
The decision was seen as one of the first truly expansive interpretations of The Religious Freedom Restoration Act of 1993, a federal law meant to ensure the rights of religious expression. But under the law, special exemptions don’t just happen. Religious groups wishing to circumvent federal laws based on their religious beliefs must have a compelling reason.
And that, of course, is where the center of the debate. Arriaga defended the SCOTUS ruling (which makes sense — her firm was a huge player) saying the government didn’t have a “compelling interest” in providing certain birth controls to women under the Affordable Care Act.
“All [Hobby Lobby] wanted to do was continue to pay their employees double the minimum wage,” she said, “but not pay for those four contraceptives.”
Barker and Saperstein disagreed, and Barker, the minister-turned-atheist, said that Hobby Lobby was “discriminating.”
“These poor religious conservatives feel like they’re being discriminated against,” he said, “because they can’t discriminate against others.”
Saperstein, the rabbi who is in favor of preserving RFRA, said he feels the Supreme Court interpreted the law incorrectly in deciding the Hobby Lobby case.
“Corporations don’t worship. They don’t have religious consciences,” he said, comparing the case to Citizens United, the decision that extended some first amendment protections to corporations. “Giving First Amendment rights to corporations has had devastating consequences. This is just another case in that regard.”
He continued: “Our anti-discrimination law is an absolutely bedrock, fundamental compelling interest of the government, and therefore I think it does prevail against those who have religious freedom claims that they have a right to discriminate against these protected categories.”
Arriaga responded that though she’s “all about protected categories” and “against discrimination,” the “beauty of RFRA is it creates a balancing test.”
Cakes for gay weddings and how that relates to race
So what if you’re a baker who doesn’t want to make a wedding cake for a gay couple? While the Trump Justice Department has sided with the baker, the Supreme Court will soon weigh this major case that pits equal rights for the LGBTQ community against religious liberty.
And this is where things got a little dicey.
Saperstein explained that when an individual goes into business, they become subject to public accommodation laws. Arriaga sided with the baker, saying an individual shouldn’t be required to express themselves in a way that’s inconsistent with their religious beliefs.
But Saperstein questioned the precedent that would set: “You want to say to these people: ‘If you have a religious objection to serving blacks or Jews you don’t have to provide services to them?’” Arriaga shot back, saying her fellow panelists were playing “the race card,” saying “race has a different place in our society.”
“Horrible things were done in the name of race,” she said, to a stirring audience. “I don’t think we can compare horribles things that happened to the African American community to issues having to do with the LGBTQ community.”
Later in the program, an audience member followed up, asking for clarification from Arriaga about where the line is drawn. She said: “The cake baker should be protected from having to express themselves in a way that they don’t want to express themselves.”
She added that she feels it’s a market issue, wondering aloud why the couple wouldn’t just go to another bakery to get their wedding cake: “Why do people have to call in the government into a scenario when a person doesn’t want to provide services for a same sex wedding?”
Saperstein responded: “Every business that’s ever discriminated against somebody… makes the same argument.”
And Barker weighed in, saying it’s not about the cake. It’s about dignity.
“Rosa Parks would have gotten to the destination wherever she sat on the bus,” he said. “She would have gotten there. She was told to sit in the back. It was a dignity thing. She was being treated differently.”
Trump’s religious freedom executive order: Does it do anything?
Then came Trump.
In May, President Trump signed what his administration was calling a “religious freedom” executive order and that Trump himself said would “destroy” the Johnson Amendment, a tax law that forbids nonprofits from endorsing a political candidate. Those on the religious right have claimed it infringes on their First Amendment right to free speech.
Here’s the thing: There’s some consensus that Trump’s executive order didn’t actually do that. Instead of targeting political candidates, the order mentioned just “political issues,” basically ensuring the IRS doesn’t penalize religious groups for weighing in.
Still, the day Trump signed the executive order, Barker’s group — The Freedom From Religion Foundation — sued the administration, claiming the Johnson Amendment should remain intact.
“The reason we can sue is his executive order targets religious people and directing the IRS to ignore them, but not us,” Barker said. “What if the Freedom From Religion Foundation started telling people who to vote for?”
Saperstein, who testified in favor of the Johnson Amendment, said the clergy already have freedom of speech.
“They can criticize,” he said. “What they can’t do is endorse or oppose a candidate for office and get a tax exemption for their institution that they’re leading.”
Arriaga said to Saperstein: “You want to have it both ways.”
“You want to make sure a rabbi or priest can speak on issues of conscience, but then walk up to the line and not cross it. I agree,” she said. “The problem is: Who draws the line?”