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Culture wars, gay rights movement transforms the politics of religious liberty

Saturday, August 9, 2014
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Chaunce O'Connor rallies outside a Miami courthouse on July 2 during a hearing on Florida's same-sex marriage ban.J Pat Carter, AP

Chaunce O’Connor rallies outside a Miami courthouse on July 2 during a hearing on Florida’s same-sex marriage ban.

In 1990, when this tradition of support appeared in jeopardy, the outrage spanned the political and theological spectrum. That year, the U.S. Supreme Court ruling in Employment Division v. Smith made it tougher to obtain some religious liberty protections.

In response, a wide-ranging coalition, from People for the American Way to the Southern Baptist Convention, won passage of the 1993 Religious Freedom Restoration Act. Under the law, the government would have a much more difficult time defending and keeping any laws that infringe on religious freedom.

Yet, four years later, when Congress tried to revise the statute so it would also apply to state laws, the effort failed. The coalition that won passage of the original law was fracturing in part over the coming conflict between civil rights for gays and lesbians and religious freedom for groups who consider same-sex relationships a sin.

After the Hobby Lobby ruling, the more liberal members of the coalition behind the Religious Freedom Restoration Act found themselves in an awkward position.

When Congress passed the measure nearly unanimously, and President Bill Clinton signed it into law, the statute was expected to mostly help minority faiths carve out space for themselves amid the nation’s Christian majority.

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Two decades later, the quest for religious liberty has been turned on its head. The toughest upcoming fights will revolve around how nondiscrimination laws apply to the hundreds of thousands of faith-affiliated social service agencies, colleges and charities that take government money while also trying to maintain their religious identity.

Many of the largest nonprofits are run by the Catholic Church and evangelical groups. Government funding worth hundreds of millions of dollars is potentially at stake.

“The heart of this issue is the question of discrimination and the way in which anti-discrimination legislation bumps up against certain kinds of religious liberty,” Silk said. “It set up a deep tension between two strong values in a society: the nondiscrimination and the religious liberty value. Anybody who pretends that that’s a simple thing to resolve – they’re kidding themselves.”

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