The Future of Religious Liberty Protections in Illinois: Harmonizing Religious Exercise and Legitimate Government Concerns

Chapter Two, In: An Illinois Constitution for the Twenty-First Century, 2017

University of Illinois College of Law Legal Studies Research Paper No. 17-23

31 Pages Posted: 18 Apr 2017

See all articles by Heidi Brady

Heidi Brady

United States Court of Appeals for the Fifth Circuit

Robin Fretwell Wilson

University of Illinois College of Law

Date Written: April 17, 2017

Abstract

Americans are generally supportive of religious freedom, especially compared with people in other countries. However, some Americans are worried about what they see as a growing threat to religious freedom — and no wonder. The news is replete with stories of religious individuals and institutions pushing back against an ever-expanding administrative state that sometimes brings into tension the demands of faith and the law. Witness the widespread public outcry over the contraceptive coverage mandate under the Patient Protection and Affordable Care Act, which ultimately led to Burwell v. Hobby Lobby. There, the U.S. Supreme Court held that, under the Religious Freedom Restoration Act (RFRA), the government cannot force closely-held, family-owned corporations to cover drugs and devices that they believe “cause the demise of” a human.

Clashes over competing views of marriage erupted after the Supreme Court’s landmark decision in Obergefell v. Hodges extended the right to marry to same-sex couples. Across the country, marriage registrars, magistrates, and judges — individuals who facilitate the state’s monopoly over marriage — have refused to assist with same-sex marriages, leading to resignations, firings, and even jail time. Most famously Rowan County, Kentucky, clerk Kim Davis barred her staff from issuing marriage licenses to anyone because doing so “would conflict with God’s definition of marriage” and “violate [her] conscience.” Federal Judge David Bunning tossed Davis in jail for contempt of court and ordered her deputies to issue marriage licenses or go to jail, too.

That controversy followed hot on the heels of Indiana’s and Arkansas’ recent debacles enacting state RFRAs, which critics characterized as “licenses to discriminate.” While RFRAs offer much-needed protection against government impositions on religion, especially for small religions, prominent religious liberty scholars believe that RFRAs would not absolve religious believers of duties to comply with non-discrimination laws. That fact, however, did not prevent the NCAA and others from boycotting Indiana.

To be sure, the norm that the law should leave room for religious believers whenever possible is likely to weaken as the number of Americans identifying with a religion continues to plummet. But, as the government continues to expand and its nature changes, clashes between religious belief and government will expand. More importantly, whether and how to respect religious beliefs will continue to spark raging debates, as it did after Hobby Lobby. Still, religious freedom has been a bedrock of our democracy since the founding and is one thing that Americans of all stripes agree upon, perhaps because it protects all Americans.

This chapter discusses the three ways in which religious freedom is commonly protected — constitutional protections, generalized statutory protections for religious freedom, and specific statutory protections. It then reviews existing religious liberty protections under Illinois and federal law and suggests how religious liberty protections in Illinois can be further enhanced while respecting the dignity of all individuals.

Suggested Citation

Brady, Heidi and Wilson, Robin Fretwell, The Future of Religious Liberty Protections in Illinois: Harmonizing Religious Exercise and Legitimate Government Concerns (April 17, 2017). Chapter Two, In: An Illinois Constitution for the Twenty-First Century, 2017; University of Illinois College of Law Legal Studies Research Paper No. 17-23. Available at SSRN: https://ssrn.com/abstract=2953983 or http://dx.doi.org/10.2139/ssrn.2953983

Heidi Brady

United States Court of Appeals for the Fifth Circuit ( email )

2104 E. Anderson Ln. Apt. 1714
Austin, TX 78752
United States

Robin Fretwell Wilson (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
217.244.7582 (Phone)

HOME PAGE: http://www.robinfretwellwilson.org

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