2014 U. Ill. L. Rev. 839 (2014)
Religious Liberty and the Culture Wars

handle is hein.journals/unilllr2014 and id is 853 raw text is: 









RELIGIOUS LIBERTY AND THE

CULTURE WARS


                                                         Douglas Laycock*


        Religious liberty has become much more controversial in recent
  years. A principal reason is deep disagreements over sexual morality.
  On abortion, contraception, gay rights, and same-sex marriage, con-
  servative religious leaders condemn as grave evils what many other
  Americans view as fundamental human rights. Somewhat hidden in
  the battles over permitting abortion and recognizing same-sex mar-
  riage lie religious liberty issues about exempting conscientious objec-
  tors from facilitating abortions or same-sex marriages. Banning con-
  traception is no longer a live issue; there, religious liberty is the
  principal issue. These culture-war issues are turning many Americans
  toward a very narrow understanding of religious liberty, and generat-
  ing arguments that threaten religious liberty more generally. Persis-
  tent Catholic opposition to the French Revolution permanently turned
  France to a very narrow view of religious liberty; persistent religious
  opposition to the Sexual Revolution may be having similar conse-
  quences here.
        The Article argues that we can and should protect the liberty of
   both sides in the culture wars; that conservative churches would do
   well to concede the liberty of the other side, including on same-sex
   marriage, and concentrate on defending their own liberty as conscien-
   tious objectors; and similarly, that supporters of rights to abortion,
   contraception, gay rights, and same-sex marriage would do well to
   concentrate on securing their own rights and to concede that consci-
   entious objectors should rarely be required to support or facilitate
   practices they view as evil.

   *   Robert E. Scott Distinguished Professor of Law and Professor of Religious Studies, Universi-
ty of Virginia, and Alice McKean Young Regents Chair in Law Emeritus, University of Texas at Aus-
tin. This Article is based on the David C. Baum Memorial Lecture on Civil Liberties and Civil Rights,
at the University of Illinois Law School on February 18, 2013. I have of course updated the written
version. But events are moving fast, and with respect to the details of specific legislation and litigation,
it is inevitable that the Article will be not quite current by the time it is printed. The larger issue will
remain.
       I am grateful to Thomas Ogden and Sidney Helfer for research assistance, to Kenneth Abra-
ham for helping me to more nearly understand some of the complexities of the insurance market, and
to participants in a faculty workshop at the George Mason University School of Law for helpful com-
ments. I am especially grateful to Rebecca Scott, the Charles Gibson Distinguished University Profes-
sor of History and Professor of Law at the University of Michigan, who generously assisted with trans-
lating the French statutes quoted in part IV.

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