Religious Liberty and the Culture Wars by Douglas Laycock :: SSRN:
Religious liberty has become much more controversial in recent years. A principal reason is deep disagreements over sexual morality. On abortion, gay rights, same-sex marriage, and contraception, conservative religious leaders condemn as grave evils what other Americans view as fundamental human rights. Somewhat hidden in the battles over permitting abortion or same-sex marriage lie religious liberty issues about exempting conscientious objectors from facilitating abortions or same-sex marriages. Banning contraception is no longer a live issue; there, religious liberty is the primary issue. These culture-war issues are turning many Americans towards a very narrow understanding of religious liberty, and generating arguments that threaten religious liberty more broadly.
I argue that we can and should protect the liberty of both sides in the culture wars, and that conservative churches would be well advised to concede the liberty of the other side, including on same-sex marriage, and concentrate on defending their own liberty as conscientious objectors.
I offer a detailed analysis of the recently published Final Rules seeking to insulate objecting religious institutions from having to "contract, arrange, pay, or refer for" contraception. These Rules offer very substantial protection to religious institutions, and they are likely to satisfy most judges. Religious institutions should claim victory or perhaps seek to negotiate minor adjustments. The cases of for-profit employers remain to be litigated. Those cases are more difficult, but it is at least clear that Congress understood the Religious Freedom Restoration Act to apply to for-profit employers.
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