Religious Liberty as Legal Strategy Pivot

The 'religious liberty' pivot is one of the most consequential strategic reframings in the history of American social conservatism. Facing a demographic reality in which public support for same-sex marriage crossed 50% around 2011, and legal reality in which courts were invalidating same-sex marriage bans, the Religious Right's legal strategists — primarily at ADF, the Becket Fund for Religious Liberty, Liberty Counsel, and First Liberty Institute — developed a new frame: Instead of arguing that homosexuality is sinful and the law should prohibit same-sex relationships (a losing argument in most courts and a politically alienating argument in general elections), they argued that religious believers whose sincere beliefs prohibit them from serving or recognizing same-sex couples have a First Amendment right to refuse, and that requiring them to comply with anti-discrimination law constitutes a government burden on religion. This frame had several strategic advantages: 1. It shifted the question from 'should gay people have rights?' to 'does the government have the right to override sincere religious conviction?' — a question with much broader appeal. 2. It allowed coalition with Catholic institutions (Little Sisters of the Poor, Notre Dame) on contraception coverage mandates under the ACA, broadening the alliance. 3. It produced sympathetic defendants: a baker, a photographer, a florist — small business owners with sincere religious convictions — rather than institutional power structures. 4. It generated favorable Supreme Court precedent through cases like Burwell v. Hobby Lobby (2014) and Masterpiece Cakeshop (2018), building a legal architecture for religious exemption from civil rights laws. 5. It was politically portable: 'religious liberty' tested far better in polling than 'traditional values' or 'family values.' The pivot's architects: - Alan Sears and Kristen Waggoner (ADF): ADF's litigation strategy explicitly shifted toward religious liberty cases in the early 2010s. - Hannah Smith and Eric Baxter (Becket Fund): Becket handled the HHS contraception mandate cases, including Little Sisters of the Poor v. Pennsylvania (2020, Supreme Court victory). - Kelly Shackelford (First Liberty Institute): Texas-based, focusing on military and public school religious expression cases. - Robert P. George (Princeton): Provided the philosophical framework connecting natural law, religious liberty, and constitutional theory. The phrase 'religious liberty' appears in the Manhattan Declaration (2009) and became the dominant framing in ADF, FRC, and Heritage Foundation communications from approximately 2012 onward. The Heritage Foundation's annual 'Religious Liberty Index' began publication in 2018. The pivot's relationship to Obergefell (2015): the Supreme Court's ruling that same-sex couples have a constitutional right to marry did not end the legal strategy — it intensified it. Having lost the marriage question, ADF and its allies immediately pivoted to religious exemption cases, pursuing the right for religious individuals and institutions to discriminate against same-sex married couples despite Obergefell's holding.

Documented themes

• Anti-LGBTQ
• Christian Nationalism
• Political Strategy
• Anti-Democratic

Connections to Religious Liberty as Legal Strategy Pivot

• Burwell v. Hobby Lobby (2014) influenced (2014) — The Burwell v. Hobby Lobby ruling (June 30, 2014) was the first major Supreme Court validation of the 'religious liberty' legal strategy, establishing that for-profit corporations could claim religious exemptions under RFRA and that such exemptions extended to employee benefit requirements. It became the foundational precedent for the post-Obergefell wave of religious liberty litigation.
• Obergefell v. Hodges (2015) as Galvanizing Force influenced (2015) — Obergefell v. Hodges (June 26, 2015) was the catalyzing event that completed the Religious Right's strategic pivot from 'family values' to 'religious liberty' as its primary legal and political frame. Having lost the marriage equality argument at the Supreme Court, ADF, FRC, and allied organizations immediately shifted their litigation and legislative strategy to religious exemption claims — the right of individuals and institutions to refuse to recognize same-sex marriages on religious grounds. The pivot had been developing since the Manhattan Declaration (2009) and Hobby Lobby (2014) but Obergefell made it the dominant strategy.
• Planned Parenthood triggered (2014) — Planned Parenthood's role as the nation's largest abortion provider made it the institutional focus of the Alliance Defending Freedom's post-Obergefell legal strategy. The 'religious liberty' framing — in which refusing to provide or insure contraception and abortion services was a protected exercise of faith — was specifically designed to create legal mechanisms for defunding Planned Parenthood and enabling providers, insurers, and employers to refuse participation in reproductive health services. The Burwell v. Hobby Lobby case (2014) established the RFRA precedent that allowed employers to exclude contraception from insurance coverage; ADF and related organizations then used that precedent to build a legal framework for state and federal Medicaid defunding campaigns targeting Planned Parenthood specifically.

Sources

• The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism — Katherine Stewart (2020), pp. 131–165
• Bad Faith: Race and the Rise of the Religious Right — Randall Balmer (2021), pp. 135–160
• How the Religious Right Is Winning — ProPublica (2023)