Religious-freedom advocates turn from ballot to courtroom

Published: March 15, 2014 Updated: March 16, 2014 12:04 p.m.


Following a string of electoral defeats, religious conservatives are turning to the courts to advance their priorities.

At the ballot box:

• In 2012, Maine, Maryland and Washington became the first states to legalize gay marriage by voter referendum. Same-sex marriage is now legal in 17 states.

• This year, legislation based on religious freedom has been rejected, withdrawn or allowed to stall in 15 state legislatures, including in California.

In court:

• Four states (Utah, Oklahoma, Virginia and Texas) are appealing federal court rulings that invalidated same-sex marriage bans.

• Ninety-four religious freedom cases have been filed by religious, nonprofit and for-profit organizations seeking exemption from a federal health law requirement that employers provide health insurance that covers contraception.

• One of those cases, brought by the Hobby Lobby chain of arts and crafts stores, is scheduled to be heard before the U.S. Supreme Court on March 25.

• A similar case was filed Wednesday in Oklahoma by a group of nearly 200 Catholic employers, including archdioceses, an insurance company and a nursing home.

• On Friday, the Supreme Court is expected to decide whether to hear a case filed by a New Mexico wedding photographer who declined to photograph a same-sex commitment ceremony.

Sources: AP, Becket Fund for Religious Liberty, Alliance Defending Freedom

For religious conservatives, the stakes in a religious freedom lawsuit set to be argued before the U.S. Supreme Court later this month could not be higher.

The case, which hinges on whether federal health laws require a Christian business owner to provide contraception insurance coverage to employees, has drawn a groundswell of support from a national array of religious conservatives, including Rick Warren, pastor of Saddleback Church in Lake Forest.

But enthusiasm for the Hobby Lobby case, named for the company that filed the suit, stems from more than the religious freedom questions justices will hear during oral arguments beginning March 25.

Increasingly, at a time of rapid social change, conservatives are turning to the courts to argue beliefs that are becoming harder to promote at the ballot box.

“Everyone has all eyes on the Supreme Court at the moment,” said Bruce Hausknecht, a legal analyst for Focus on the Family, a national faith-based family issues organization. The Hobby Lobby case “has sucked all the oxygen out of the room.”

Over the past two years, religious conservatives have experienced a string of electoral defeats that have left many feeling demoralized and uncertain about how to advance their political priorities.

Gay marriage was legalized in three states by voter referendum in 2012. A California ballot initiative outlawing gay marriage was nullified by a U.S. Supreme Court decision last year after state elected officials declined to defend the measure in court.

Last month, Arizona Gov. Jan Brewer vetoed legislation that would have expanded the state’s Religious Freedom Restoration Act, making it easier for business owners to decline service to gay people and others on religious grounds. The veto followed a nationwide bipartisan outcry over the measure.

The setbacks have led some conservatives to wonder whether passing laws to enforce their morality is the right strategy.

“To try to create more laws to govern moral behavior, it didn’t work in Jesus’ day and I suspect it won’t work in our day either,” said Pastor David Mitchell of Calvary Church in Santa Ana.

Recent actions of conservative political strategists suggest they agree.

So far this year, bills similar to Arizona’s have been withdrawn, rejected or allowed to stall in 15 state legislatures.

Last month, a California measure that would have made an “exception” to state civil rights laws “to protect the free exercise of religion” was withdrawn days after it was introduced on Feb. 21 by a Republican legislator from Bakersfield.

In a written statement, Assemblywoman Shannon Grove cited debate over the issue “playing out in several other states” as the reason she withdrew the proposal.

In Utah, state lawmakers last month suspended all legislation related to sexual orientation after a federal judge struck down the state’s gay marriage ban. Lawmakers said they feared their comments on the issue could be used against the state in its appeal of the judge’s ruling.

The Church of Jesus Christ of Latter-day Saints, which has campaigned in favor of gay marriage bans in the past, including in California, declined to comment last week when asked by the Register about the legislative defeats.

A church spokeswoman in Utah said the church’s government affairs director would be unavailable for media interviews for “another week or maybe even two weeks.”

Hausknecht, of Focus on the Family, said the outcry over the Arizona law highlighted a key challenge for conservatives.

“It’s hard to draft a statute that, in the issue of (same-sex) weddings, we’ll exempt wedding photographers but not hot dog vendors,” Hausknecht said. “Where do you draw the line?”

In light of such complications, Hausknecht said that for now, conservatives are shifting focus from state legislatures to the courts.