Two things, we are told, are threats to Americans' religious liberty: (1) same-sex marriage, and (2) contraception coverage.
(1) may be properly understood as states issuing marriage licenses to, and conferring legal "married" status upon, same-sex couples, and treating them as "married," each the other's "spouse," under the law.
(2) may be properly understood as a requirement that medical-insurance policies provided by employers who provide health insurance to their employees, include coverage of contraception and other reproductive-health services for women as "preventive services" which must be paid for by the insurer without co-payments.
So the argument goes, (1) is a threat to the religious liberty of Americans who believe, based on their religion, that homosexuality is wrong. Meaning, if I am such a person, and my state decides to issue (or to not prohibit, or stop prohibiting, the issuance of) marriage licenses to same-sex couples and/or to recognize them (or to not prohibit, or stop prohibiting, the recognition of them) as "married," each the other's "spouse" for legal purposes, then my religious liberty has been violated, because the law contradicts and thereby undermines my beliefs.
So the argument goes, (2) is a threat to the religious liberty of Americans who own and operate businesses (other than churches and similar explicitly-religious entities), who believe, based on their religion, that contraception is wrong. Meaning, if I am such a person, and the law requires that the health insurance which I provide to my employees include coverage for contraceptive and reproductive-health products and services without copays, then my religious liberty has been violated, because the law contradicts and thereby undermines my beliefs.
Have I got all that right? In either case, if I were the one complaining about a threat to or a violation of my religious liberty, would I be correct? Follow me below the Holy Orange Twisty Thing for a discussion.
Rather than try to summarize of all the Supreme Court jurisprudence concerning religious liberty under the First Amendment's Establishment and Free Exercise Clauses, let's start with what I think is a fair layman's understanding of what religious liberty is. Religious liberty means that you can practice any religion you want, or none; be a part of any church you want, or none; live your life according to the tenets and strictures of your chosen religion, or not; believe whatever your chosen religion requires you to believe, or not; all without the law telling you that you must, or that you are prohibited from, practicing, participating, living and believing in such fashion.
It has always been the case that secular laws, viz., neutral laws of general applicability, can sometimes incidentally interfere with religious practice, if not religious belief. Laws requiring that any particular thing be believed or not believed would be impossible to enforce even if they did exist. Whether laws that interfere with (whether by outlawing or mandating) religious practice also interfere with religious belief, is a separate question I don't really want to get into here. For our purposes, let's again proceed from a simple layman's understanding of what religious belief is, and what religious practice is. Belief is a thought consciously held in the mind; practice refers to actions which a person can deliberately take or forbear, such as going to church, performing rituals, observing dietary restrictions, &c.
Let's also assume for the sake of argument that interference with religious practice does interfere with religious belief. Let's stipulate that requiring someone to do something that his religion prohibits, or prohibits him from doing something his religion requires, interferes with his beliefs by potentially undermining or weakening his belief in those beliefs.
OK, so let's get back to (1). My religion condemns and prohibits homosexuality, but my state (or some other state) has chosen to confer and recognize "married" and "spouse" status on same-sex couples, or has chosen not to prohibit same, or has opted to stop prohibiting same where it was previously prohibited. The law, and the change in the law, thus contradicts and thereby undermines my religious beliefs.
Does a law that contradicts or undermines an individual's subjective religious beliefs in this fashion constitute a threat to, or a violation of, that person's religious liberty?
In the case of legalization/recognition/non-prohibition of same-sex marriage, there seems to be something missing. No matter what the law says or does, I am still free to go right on believing that homosexuality is wrong, and that same-sex marriage is wrong, no matter who is permitted by law to be or prohibited by law from being a "married" "spouse." And I'm still free to make that argument to anyone who will listen, and to encourage politicians and elected officials to change it back. The law only undermines my beliefs to the extent that it might make me start to think that maybe homosexuality is not wrong. But there's obviously no requirement or guarantee that that will happen, even if it is the law's explicit intent, which it isn't. Moreover, even if I do start to question my own beliefs because of a change in the law, that would be the result of my own conscience, not the law.
I might argue further that the law undermines my beliefs to the extent that it might make other people, or society as a whole, start to think that maybe homosexuality is not wrong, or make it harder for people to believe and accept that it is wrong. Meaning, it undermines my beliefs in the broader sense, undermining the belief itself in the abstract rather than my belief or my right to believe it. The question, then, is whether "religious liberty" includes the former, or only the latter, i.e., whether it includes the right to not have whatever beliefs I hold undermined in any way, by anyone, in anyone else's mind other than my own.
The answer to that, I think, has to be no. In order to have such a right, a person would have to have some right to some control over the thoughts of others, or to see to it that other people think certain things and don't think other things. I can think of no concept of "religious liberty," particularly where same is considered an individual freedom, that would include any such thing. Neither can I think of any concept of liberty more generally that provides an individual "right" to ensure that, or live in a world wherein, anyone else thinks or believes any particular thing. I'm free to encourage people to believe whatever I think they should believe, but I don't have any "right" to have those beliefs codified into law, or take any other steps to ensure that others believe as I do and act accordingly.
What's also missing here is any substantial interference with religious practice. I'm still free to go to the church of my choosing, still free to perform rituals and observe holy days, still free to pray and sing praises to my deity, still free to do whatever my church requires me to do, and still not required to do anything my church prohibits me from doing. I'm still free to marry according to the tenets and strictures of my own faith, or not. So there doesn't appear to be any interference with my religious practice that would in turn undermine my religious beliefs.
Ultimately, my complaint here is that my religious liberty is being threatened or violated because the law does not subject, no longer subjects, or fails/declines/refuses to subject all of society to the rules and strictures of my religion. That does not violate my right to believe, to attend a church that requires me to believe, or to practice a faith that requires me to believe, that homosexuality is wrong. It's really not plausible to claim that legalizing, recognizing or solemnizing same-sex marriages could threaten or violate anyone's religious liberty.
(2) is trickier. The argument with respect to "undermining my religious beliefs" (viz., that contraception is wrong) essentially tracks the one laid out above in the case of (1), so there's no need to recap that here. But whereas legalizing same-sex marriage does not require those with religious objections to homosexuality to actually do anything, the contraception-coverage mandate does at least begin to implicate religious practice.
My complaint, essentially, is that the mandate threatens my religious liberty by making me do something that my religion prohibits me from doing. Or, at least, that I think my religion would prohibit me from doing. Whether it can be shown that any religion expressly prohibits any person from providing his employees with medical insurance policies that include coverage of contraception and reproductive-health services without co-payments, is probably irrelevant; all that matters is that I believe that my religion prohibits me from doing that specific thing. The law is not supposed to evaluate the veracity or validity of individual religious beliefs.
The problem is that even if we stipulate to that belief, we're still talking about a neutral, generally-applicable law that implicates the rights of not just the employer, but the employee (and the insurer) as well. The statute essentially gives the employee a legal right (albeit not a constitutional right) to have contraceptive and reproductive-health services covered by her employer-provided insurance policy, and to receive such services from her physician through her insurer at her election without copayment. The fact that this particular religious exercise/practice affects the legal rights of others is not necessarily dispositive, but certainly cannot be ignored.
That is not to say that the employee's legal right trumps the employer's constitutional right to religious liberty. The question remains whether I have a right to not provide, or to refuse to provide, my employees with any particular form of compensation if doing so would contradict or undermine my religious beliefs. I think it's hard to say that I do have such a right, but not impossible. At least not without attempting to evaluate the nature and validity of the "belief" that's supposedly being undermined. If the "belief" is simply that contraception is wrong, then the answer is clearly no; the thing I'm required to do is far, far too attenuated from the thing that is actually against my religion that there's almost no connection between them. But if the specific religious "belief" is that I am prohibited by my church and my deity from providing my employees with material compensation for their labor in the form of a medical-insurance policy that covers contraception with no co-payments, then it becomes more difficult; it doesn't end the inquiry, but it takes us to a different level and form of analysis.
What also cannot be ignored is the fact that while the law in general does not require employers to compensate their employees for their labor in any particular way, once the compensation is provided it becomes the property and province of the employee, not the employer, to do with as she sees fit. Is it too far down the slippery slope to suggest that an employer could refuse to compensate his employees at all, on the grounds that they might do things with that compensation, be it money or property, that would offend the employer's religious conscience? Could an employer decide that his religion prohibits him from paying his employees, and use that reasoning as a defense to a suit for wage theft?
Put another way: Is it intellectually consistent for me to refuse to compensate my employees with medical-insurance policies that cover contraception, which they may or may not use at their election, while continuing to pay them in dollars which they might also use to purchase contraception or insurance policies that cover it, or to do other things of which I, my church and my deity might disapprove?
Can we also say, without evaluating the validity of the belief, that not providing or refusing to provide one's employees with medical-insurance policies that include coverage of contraception without co-pays is not itself "religious practice"? As described above, religious practice typically refers to things like going to church, saying prayers, performing rituals, observing holy days and traditions, obeying dietary and clothing restrictions and other such religious laws, etc. Not doing a thing or refusing to do a thing that my religion prohibits, or that I think my religion might prohibit, may not constitute "religious practice" unless the prohibition is really, really specific. In this case I can't say for sure, but I'm inclined to say no, this is not religious practice. It's not a ritual or a tradition, or even obedience on the employer's part to a religious law; it's a way of making sure that others obey that law. It's an attempt to enforce religious law, not to obey it.
I think the key, ultimately, goes back to what was set forth above with respect to the law subjecting all of society to the tenets and strictures of one's own religion, to which no one has any cognizable "right." More importantly, that's not what "religious liberty" is. I don't think, in the end, that the contraception mandate threatens or violates religious liberty. If the phrase is to mean anything, "religious liberty" simply does not include what it is purported to include here. It includes a right to obey religious law, not to enforce it.
Part of the reason why this debate rages on is because neither the issues (1) and (2) as set forth above the fold, not to mention the concept of "religious liberty," are often not properly understood. Sometimes that's deliberate. And that's particularly true where the issue is difficult to properly understand and articulate, as is the case with (2) here. Nevertheless, in this country "religious liberty" has never been a valid justification for interfering with or denying the rights of others, be they constitutional rights or legal rights. Neither has it ever been a blanket, no-questions-asked excuse to ignore or exempt oneself from the law. In the end no one has a right to live in a country where all of society -- indeed, where anyone other than he -- is subjected to his religion, or to any of the specific tenets and strictures of his personal religious beliefs.