The District of Columbia’s transportation department has offered several proposals to install bike lanes, one of which runs by a church that objects to the new bike lane. In a practice that is likely to become much more common since the Supreme Court expanded the rights of religious objectors in Burwell v. Hobby Lobby, the church responded by hiring a lawyer and claiming that the bike lane would violate the “the Church’s and its parishioners’ constitutionally protected rights of religious freedom.”
Even after Hobby Lobby, this is not a valid legal argument. The Constitution has nothing to say about bike lanes that religious groups object to unless the group can prove that a particular plan to build a bike lane was designed to single out religious groups for inferior treatment. The primary federal law governing religious liberty suits restricts the federal government ability to “substantially burden a person’s exercise of religion,” and a closely related law restricts the government from implementing “a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person.”
But adding a bike lane to a nearby road doesn’t “burden” the church’s religious practices at all; it merely changes the terms under which the government provides the church with a subsidy. It would be one thing if D.C. passed a law that actually placed restrictions on how the church that objects to the bike lane, the United House of Prayer, is allowed to conduct its religious activities — but that’s not what D.C. is suggesting here.
Currently, D.C. provides the church with a benefit that is paid for by taxpayers: a road near the church which does not include a bike lane. D.C. proposed offering the church a different benefit which would also be paid for by the city’s taxpayers: a road near the church which does include a bike lane. The church, in effect, is claiming that it has the right to dictate which taxpayer-funded benefits the District of Columbia shall provide, solely because it happens to be a religious organization.
A letter from the church’s attorney laying out its objections to the proposed bike lane claims that creating the new lanes would limit the space available for automobile traffic and eliminate parking spaces that church members sometimes use.
To be clear, this dispute between local transportation officials and a house of worship is a fairly small bore conflict. D.C. also proposed alternative paths for the proposed bike lane that the church finds less objectionable, and, according to the Washington Post, the city and the church eventually reached an accommodation that satisfied the church’s objections. The church also offered several legitimate reasons why the bike lane proposal it objected to should not be adopted, such as a claim that the newly configured road would not be able to handle frequent traffic surges that occur due to a nearby convention center.
Nevertheless, the church’s religious liberty arguments are just one example of a tactic that is likely to proliferate thanks to Hobby Lobby. Should the courts actually embrace the church’s legal argument, moreover, it would have a devastating impact on many officials’ ability to make routine governance decisions.
Boiled down to its essence, the church’s legal argument is that any change to how D.C. allocates its resources that significantly inconveniences church members seeking to attend religious services must be subjected to the highest level of constitutional skepticism. In this case, the church attacked a proposed bike lane, but the same logic could prevent the city from temporarily closing roads in order to perform routine maintenance or from altering bus routes that are frequently used by passengers on their way to church. And that’s only looking at ways that transportation policy could inconvenience churchgoers. If religious organizations truly have the right to demand subsidies from the government, it’s not clear where this power ends. To give just one example, a religious sect might demand taxpayer-funded vouchers to fund the sect’s system of religious schools.
However, at least one justice — the author of Hobby Lobby — has indicated that he would happily give religious groups the power to force the government to subsidize their activities. In Christian Legal Society v. Martinez, a 5–4 majority of the Supreme Court rejected an anti-gay group’s claim that they had a constitutional right to government-funded benefits. Hastings College of Law, a public law school, subsidized student groups that complied with certain rules, including a rule that the groups had to “allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her] status or beliefs.” The school’s chapter of the Christian Legal Society, however, refused to comply with this rule because it wished to engage in anti-gay discrimination. Nevertheless, the Society believed it had a right to still receive subsidizes from the law school despite its refusal to comply with the school’s ban on discrimination.
Christian Legal Society was technically a free speech case, not a religious liberty case. Nevertheless, in a recent speech to the conservative Federalist Society, Justice Samuel Alito explained his own belief that Christian Legal Society should have been given the special right that it sought because it’s anti-gay animus was rooted in religion:
Over the past ten years, something quite dramatic has happened. An inkling was provided in CLS v. Martinez, a 5–4 decision. Hastings Law School threw the Christian Legal Society off campus because the society’s beliefs that members should hold traditional Christian beliefs on a variety of subjects, including on sexual relations, and only people of the opposite sex should be allowed to marry. The court allowed Hastings to get away with just that. It was an eye-opening decision. The claim of religious liberty could not stand up with an idea supported by influential segments of society.
Alito misrepresents the facts of Christian Legal Society. The organization was not thrown off campus, as Alito suggests. Rather, Hastings told the Society that “the school “’would be pleased to provide [CLS] the use of Hastings facilities for its meetings and activities.’”
More importantly, however, Alito’s statement indicates that he would be willing to dramatically rework the balance of power between religious objectors and the public, potentially forcing taxpayers to fund religious activity that they themselves find objectionable.