Why Did the Left Turn Against Religious Liberty?

Below is an excerpt from my recent piece for Organization Trends:

On June 26, the Supreme Court by 5 to 4 struck down all state-level bans on same-sex marriage. Since then, a poll found that 19 percent of Americans believe “religious institutions or clergy should be required to perform same-sex marriages.” The survey was conducted by the Barna Group, which studies attitudes toward religion in America. That percentage may seem small, but it means one in five Americans have no problem with the government violating the first freedom of the First Amendment. That number increases to more than a quarter—26 percent—among Americans under the age of 40, who believe churches and pastors should be forced to perform gay marriage ceremonies.

Sen. Ted Kennedy (bioguide.congress.gov)

Reasonable people can disagree on the issue of gay marriage as a public policy, but what should not be questioned are the basic First Amendment principles of the country, rights that were reinforced by the Religious Freedom Restoration Act, passed in 1993 by a Democratic administration and Congress.

The majority and dissenting opinions in the same-sex marriage case, Obergefell v. Hodges, addressed the matter of religious freedom. Even President Barack Obama made passing reference to this fundamental liberty when he praised the ruling in the Rose Garden: “All of us who welcome today’s news should be mindful of that fact; recognize different viewpoints; revere our deep commitment to religious freedom.”

For the court’s majority, Justice Anthony Kennedy wrote:

It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.

It’s good to know Kennedy still thinks Americans have the right to hold private religious views. Yet Chief Justice John Roberts responded that many difficult issues remain:

“Respect for sincere religious conviction has led voters and legislators in every state that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. … Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.”

Now congressional Republicans are considering taking action to protect the First Amendment right to practice religion, not only for clergy and their congregations, but for private businesses as well.  

Another Supreme Court decision, this one in 1990, prompted lawmakers on both sides of the aisle to fear it would be too sweeping. Fierce left-winger Ted Kennedy (D-Mass.) sponsored a Senate version to complement the House bill of another hard-left Democrat, then-Rep. Charles Schumer (D-N.Y.), whom no one ever accused of being a right-wing theocrat.  The bill passed almost unanimously through the House and Senate, and it was happily signed by another Democrat, President Bill Clinton.

Again, Schumer and Kennedy weren’t any kind of right-wingers. But neither are the 21 state laws that were modeled after the federal Religious Freedom Restoration Act (RFRA) that Kennedy, Schumer, and Clinton made into law. The legislation was so non-controversial in its time that President Bill Clinton remarked on the bipartisanship consensus on the issue when signing the bill into law, “The power of God is such that even in the legislative process miracles can happen.”
But just this past year, after a journalist hounded a mom-and-pop pizza shop in Walkerton, Indiana, that state’s version of RFRA sparked a national controversy that even the National Collegiate Athletic Association (NCAA) felt obliged to join. Charles Schumer, now a U.S. senator and apparently hoping everyone would forget his 1993 actions, tweeted:  “@NCAA if you’re looking for a new place to hold 2021 #FinalFour – NY has plenty of great venues that don’t discriminate.”