Not long ago, when religious liberty cases reached the courts, the people seeking protection for their beliefs were mostly from small faith groups and their lawyers were liberals.
The contested issues were narrow: a demand that plain, black Amish buggies carry bright safety triangles, for instance, or bans on hallucinogenic tea in a Native American ritual.
The resolutions of these cases were as narrowly drawn as the complaints themselves. A judge might carve out an exemption for the practice in question, and life would go on as usual for everyone else.
But after years of culture wars, and amid recent gains for gay rights, the politics of religious liberty has been transformed. Now exemptions are being sought by the largest faith groups in the country, the burning issues are marriage and sex, and the term religious freedom has taken on a new, politicized meaning.
“Things have changed dramatically in the last 20 years,” said Michael Moreland, vice dean and professor at Villanova University Law School. “Back then, the Catholic Church wasn’t very often in the position of needing exemptions.”
The new terms of the debate were on display in the recent Hobby Lobby case over birth control coverage for workers.
The plaintiff was a multibillion-dollar arts and crafts chain owned by conservative Christians. At stake was broader access to contraception for many women. And the religious leaders championing the Hobby Lobby case were from the Roman Catholic Church and the Southern Baptist Convention – the largest and second-largest denominations in the country.
The justices ruled June 30 that Hobby Lobby and other closely held private businesses with religious objections could opt out of providing the free contraceptive coverage required by the Affordable Care Act.
Many opponents, outraged by the decision, vowed they would fight to repeal the law at the center of the case: the Religious Freedom Restoration Act.
“We’ve gone from a moment a quarter century ago where it’s small religious minorities who want to do their thing in private to very large religious minorities – Catholics and evangelicals and Mormons – who feel they’re being oppressed by a hostile society,” said Mark Silk, director of the Leonard Greenberg Center for the Study of religion in Public Life at Trinity College in Hartford, Connecticut.
“Now we’re talking about potentially significant numbers of women who do not get contraceptive coverage, or significant numbers of men and women who are gay and lesbian,” said Silk.