John Inazu (JD, PhD) is an associate professor of law at Washington University in St. Louis and the author of the well-received academic book, Liberty’s Refuge: The Forgotten Freedom of Assembly (Yale University Press, 2012). Writing in Christianity Today he offers helpful summary and a sharp analysis of the current cultural and legal landscape regarding religious liberty, exemplified through cases like Hobby Lobby and now Gordon College.
The piece is very well-written, but be forewarned that it is not encouraging.
Here are the three predictions he makes:
Prediction #1: Only religious groups (by no means all of them) will impose restrictions based on sexual conduct.
That is in stark contrast to the many groups that make gender-based distinctions: fraternities and sororities, women’s colleges, single-sex private high schools, sports teams, fitness clubs, and strip clubs, to name a few. It is perhaps unsurprising in light of these observations that views on gender and sexual conduct have flip-flopped. Thirty years ago, many people were concerned about gender equality, but few had LGBTQ equality on their radar. Today, if you ask your average 20-year-old whether it is worse for a fraternity to exclude women or for a Christian group to ask gay and lesbian members to refrain from sexual conduct, the responses would be overwhelmingly in one direction. That trend will likely continue.
Prediction #2: Only religious groups will accept a distinction between “sexual conduct” and “sexual orientation,” and those groups will almost certainly lose the legal effort to maintain that distinction.
Most Christian membership limitations today are based on conduct rather than orientation: they allow a gay or lesbian person to join a group, but prohibit that person from engaging in conduct that falls outside the church’s teachings on sexuality. These policies—like the one at Gordon College currently under fire—are not limited to gays or lesbians; all unmarried men and women are to refrain from sexual conduct. The distinction between status and conduct from which they derive is rooted in Christian tradition, and it is not limited to sexuality: one can be a sinner and abstain from a particular sin.
But many people reject the distinction between status and conduct. And in a 2010 decision,Christian Legal Society v. Martinez, the Supreme Court also rejected it, viewing distinctions based on homosexual conduct as equivalent to discrimination against gays and lesbians. I have argued in a recent book (Liberty’s Refuge: The Forgotten Freedom of Assembly) that the Court’s reasoning is troubling in the context of a private group’s membership requirements. But it is the current state of the law.
Prediction #3: Fewer and fewer people will value religious freedom.
Although some Christians will respond to looming challenges with appeals to religious liberty, their appeals will likely face indifference or even hostility from those who don’t value it. The growing indifference is perhaps unsurprising because many past challenges to religious liberty are no longer active threats. We don’t enforce blasphemy laws. We don’t force people to make compelled statements of belief. We don’t impose taxes to finance training ministers. These changes mean that in practice, many Americans no longer depend upon the free exercise right for their religious liberty. They are free to practice their religion without government constraints.
Additionally, a growing number of atheists and “nonreligious” Americans have little use for free exercise protections. Even though most Americans will continue to value religious liberty in a general sense, fewer will recognize the immediate and practical need for it to be protected by law.
This final prediction is deeply unsettling, because strong protections for religious liberty are core to our country’s law and history. But those protections have been vulnerable since the Court’s decision in the peyote case. And they will remain vulnerable unless the Court revisits its free exercise doctrine.
Read the whole thing here.