Religious liberty cases

By Tom Krattenmaker

 Award-winning Portland-based writer
Recent book: The Evangelicals you Don’t Know
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Can a Christian merchant legally refuse service to gay people? Should a Christian business owner be exempt from providing employees with health insurance that includes contraceptives he deems immoral? As the debates rage and the Supreme Court nears oral arguments in the Affordable Care Act contraception mandate case, it’s instructive to recall a famous religious freedom drama from the past.

The 1971 Supreme Court case Clay v. United States, which is the subject of a recent documentary, offered vivid plot elements: a world famous boxer, Muhammad Ali, who faced a stark choice between prison or killing in combat in violation of his Muslim beliefs.

A constitutional law scholar at the center of that case contends that we often overplay, even trivialize, religious legal claims today. In addition to this expert’s uncommon name, Thomas Krattenmaker, I share his view of the matter: A principle as important as religious freedom deserves more responsible engagement than it’s getting.

Krattenmaker was a law clerk for Justice John Harlan during the Ali drama. He researched the teachings of the Black Muslim movement on war and changed Harlan’s mind about the legitimacy of Ali’s religious freedom claim, leading to the court’s 8-0 decision in favor of the boxer.

Krattenmaker, a distant relative, had a distinguished career as a professor, a dean and as research director with the Federal Communications Commission. Now retired, he told me that the Ali case is an important reference point in thinking about today’s squabbles.

“One of the most important freedoms we have is the exercise of religion, so I don’t like belittling anyone’s religious freedom claim,” he says. “But if you push it too far, you distort it; you turn it into a caricature of itself.”

Caricature — that’s all I could think of when I saw one Arizona legislator’s rationale for a proposed law that would allow Christian merchants to refuse service to gay people. The bill — since vetoed — was not about those merchants wanting to discriminate against others, Sen. Steve Yarbrough claimed, but about “preventing discrimination against people who are clearly living out their faith.”

Reality check: As Krattenmaker explains, the Supreme Court has held repeatedly that the Constitution is not violated when society enacts laws, such as non-discrimination measures, that have the unintended effect of limiting some people’s religious practice. There is this non-legal question, too: Does Yarbrough think shunning gays is central to “living out” the Christian faith, or in any way a compelling demonstration of what it means to follow Jesus Christ?

Leave it to the lawyers to argue the constitutional fine points of whether a Christian-owned corporation such as Hobby Lobby should be off the hook for providing insurance plans that include contraceptives its owners find objectionable. I’ll ask this: While the company owners are entitled to espouse what they will about certain contraceptives being tantamount to abortion, what about the rights of the many employees who do not share the boss’ moral reservations about IUDs and Plan B pills (which, by the way, the American Medical Association says are not abortifacients)?

And what about the employer’s responsibilities to a society that has decided it’s good policy to get birth control to as many people as possible through employer-provided health insurance, in part, because it reduces unwanted pregnancies and abortions?

We ought to remember the insights of the law scholar Krattenmaker and ask ourselves these kinds of questions the next time we’re tempted to claim, loud and proud, that our religious freedom is being trampled.

Religion writer Tom Krattenmaker, a member of USA TODAY’s Board of Contributors, is author of the new book The Evangelicals You Don’t Know.

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