RELIGIOUS LIBERTY is very popular in the abstract. It’s only in its application that we begin shouting at one another.
Take the executive order on religious freedom that President Trump signed earlier this year: Depending on your perspective, the order was either “a welcome change in direction toward people of faith from the White House,” as Southern Baptist Ethics and Religious Liberty Commission president Russell Moore said, or it was a smokescreen for bigotry giving the U.S. government “license to discriminate,” in the words of Sarah Warbelow of the Human Rights Campaign.
So how did we get here?
Cactus and conscience
There was a time when compromises, and progress, were still possible. That was surely on display in the Rose Garden one beautiful fall day in 1993 when scions of the Left, including the ACLU, Americans United, and People for the American Way, stood alongside those of the Right to watch President Bill Clinton sign a landmark civil rights bill, called the Religious Freedom Restoration Act, into law. The bill had bipartisan sponsorship in both chambers of Congress and passed unanimously in the House. Imagine that.
The celebratory crowd on hand at the White House was witnessing a course correction of a 1990 ruling by the U.S. Supreme Court. The case—Employment Division v. Smith—involved the use of peyote, a cactus with hallucinogenic properties. The state of Oregon wished to punish two confessed peyote users by denying them unemployment benefits, despite the fact that the two were Native Americans using peyote pursuant to ancient tribal religious practice.
Up until this point in U.S. history, the constitutionally enshrined right to religious freedom outlined in the First Amendment—“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”—had been enforced through the use of a balancing test. Whenever someone demonstrated that the government was restricting their religious practice, the burden of proof was on the government to show: 1) the restrictions were necessary to accomplish a “compelling governmental interest” such as health or safety, and 2) the restrictions were the “least restrictive means” of pursuing that interest.
Sometimes the religious claimants won (as did the Amish when they withdrew their children from formal education after the eighth grade) and sometimes they lost (as did Rastafarians when they smoked marijuana in violation of criminal laws), but in all cases the religious claimants had their day in court.
According to an exhaustive 1990 study published in the Harvard Law Review, this balancing test was used to evaluate claims of conscience since colonial times. But in Employment Division v. Smith, the Supreme Court did something entirely new: Instead of applying the traditional balancing test to the facts of the case, it changed the test altogether.
In the majority opinion written by Justice Antonin Scalia, the court ruled that the government no longer needed to prove a “compelling interest” or that it had pursued its interest in the least-restrictive means necessary. Instead, the government now only needed to show that it had not discriminated against a religious practitioner.
So if a Southern county allowed the sale of alcohol, nondiscrimination meant that a Catholic priest could also purchase wine. Fair enough. But in one of the many “dry” counties across the South where the sale of alcohol is prohibited, nondiscrimination also meant you could effectively outlaw the central sacrament of Roman Catholicism, and the church would have no recourse. In the eyes of the court, this was fair: The priest wasn’t being singled out; he was simply being treated like everyone else. (The recent Trinity Lutheran decision continues the court’s reliance on non-discrimination as the touchstone for free-exercise cases.)
The importance of the Smith decision was immediate and far-reaching. Within a few years, we saw that Amish farmers, Sikh construction workers, Jewish servicemen, evangelical Christians—indeed, every minority religion in America—were at the mercy of government regulators.
And the reality in America is this: We’re all in the minority somewhere. Southern Baptists may not need to worry about their religious freedom in Birmingham, Ala., but move them to Portland, Ore., and they are suddenly as vulnerable as anyone else. The same is true for the Latter-Day Saints (Mormons), who discovered that while it may be a snap to secure a building permit for a temple in Utah, it is not so easy in Tennessee.
Read our lapels
When the Smith decision was handed down by the court, I was serving as general counsel to the Baptist Joint Committee, one of the oldest religious liberty agencies in America. Together with the director of perhaps the oldest civil liberties organization—Mort Halperin, of the ALCU’s Washington office—we assembled a coalition of religious and civil rights groups to right the wrong committed by Justice Scalia and the court. We drafted the bill that became the Religious Freedom Restoration Act, or RFRA (pronounced “riff-ra”); more than 75 national organizations joined us.
At its heart, RFRA was about fairness. Every claimant under the law would be entitled to the same protection: Prove that the government has placed a substantial burden on your sincere religious practice, and the government would have to prove in court that the burden was necessary to achieve a compelling government interest. If there were other, less burdensome, ways to accomplish the government’s interest, the religious claimant would win.
The effort hit a snag when the Catholic Church decided to oppose the bill on the grounds that some women—after consulting with their ministers or rabbis—might try to use the new law to challenge state restrictions on abortion. Their reasoning went something like this: If Roe v. Wade were overturned, some states would outlaw abortion. In those states, women might use RFRA to circumvent these laws by arguing that their religious convictions led them to seek an abortion. Admittedly, it was farfetched, but it stymied our efforts to pass RFRA until the Supreme Court made clear in 1992 that Roe v. Wade was not going to be overturned. Once our Catholic friends signed on, the seas calmed. RFRA would apply evenhandedly to everybody. “Religious freedom for all” became the rallying cry. We even handed out lapel buttons with the new slogan.
Game, set, match
After RFRA was signed into law in the Rose Garden, things were quiet for a few years until a small, historic Catholic Church in Boerne, Texas, began bursting at the seams. The bishop okayed an expansion of their building, but local government bureaucrats argued that the church was a historic landmark and couldn’t be enlarged—even though the church had designed and paid for the original building and their ongoing mission now required the larger space.
Using RFRA, the church argued that the city’s historical preservation laws placed a substantial burden on their religious practice—and won. But the city of Boerne appealed the decision to Supreme Court, which issued another unexpected decision. A 6-3 majority of the court opined that Congress had overstepped its constitutional authority in applying the compelling interest test of RFRA—a piece of federal legislation—to state and local governments, such as the city of Boerne.
Game, set, match for the local bureaucrats and tough luck for the church. If the church had to hold 10 services each Sunday to accommodate the crowds, so be it.
The reaction in the religious and civil rights communities was both swift and purposeful. Experts convened to craft an alternative bill that would correct RFRA’s constitutional flaws, and the resulting legislation was dubbed “The Religious Liberty Protection Act of 1998” (RLPA). The House bill passed by a comfortable margin, but a storm blew in on the Senate. LGBTQ advocates convinced Sen. Edward Kennedy, one of the bill’s Democratic sponsors, that its passage threatened anti-discrimination ordinances that were being adopted in a growing number of cities. If a city makes it illegal for landlords to refuse an apartment to same-sex couples, advocates reasoned, RLPA might be used by conservative religionists to escape the impact of these new public-accommodation laws.
What’s religious freedom got to do with…
Wedding cakes: If a baker doesn’t support same-sex marriage for religious reasons, is the baker still required to bake a cake for a same-sex wedding? The Supreme Court will decide in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which it will hear later this year.
Abercrombie & Fitch: The preppy clothier refused to hire a Muslim woman because her head-scarf violated the company’s “look policy,” but in 2015 the Supreme Court ruled the company had violated federal employment laws banning religious discrimination.
Pasta strainers: Members of the Church of the Flying Spaghetti Monster want to wear their religious headgear—a colander—in their driver’s license photos, but in 2016 courts ruled that “Pastafarianism” is a parody, not a real religion, and thus not subject to religious protection.
Oil pipelines: The Cheyenne River Sioux argued that completing the Dakota Access Pipeline would substantially burden their religious practice by desecrating the water used in a sacred ceremony. A U.S. judge dismissed the claim in March.
Cheerleaders: After Texas cheerleaders held signs encouraging their team with Bible verses at a public-school football game, the Freedom From Religion Foundation alleged they were violating the Constitution. But in 2016 the state Supreme Court ruled that the signs qualified as free speech.
The Sanctuary Movement: It’s unclear whether a church illegally sheltering undocumented immigrants in accordance with its religious convictions could appeal to religious freedom for legal protection. Similar defenses did not work in the 1980s, and no known cases are pending.
Theoretically, LGBTQ advocates were correct: The constitutional protections contained in RLPA mean that conservative religionists—just like members of any religious tradition—were free to challenge anything they felt was an affront to their sincerely held religious beliefs. Americans have always been free to raise such claims and defenses. But religious challenges to public-accommodation laws are highly unlikely to prevail. Nearly all courts consider anti-discrimination laws to satisfy the “compelling interest test” codified by RFRA and its progeny as acceptable reasons to burden someone’s religious practice. But LGBTQ advocates were in no mood for compromise, and the bill was pulled.
I was reeling. I had been one of the only Baptist clergy to testify in support of the first federal law to prevent LGBTQ discrimination—the Employment Non-Discrimination Act. When some—including the U.S. Catholic Conference and National Right to Life Committee—had assailed RFRA as a tool for pro-choice groups, courageous conservatives such as the Christian Legal Society and National Association of Evangelicals had stuck to the principle of “Religious Freedom for All.” These pro-life groups conceded that even the most-liberal Americans deserved to have their day in court. Now my liberal friends were doing just the opposite: Instead of pursuing their civil rights agenda within the confines of the traditional constitutional standard, they were seeking to guarantee their own victory by denying religious conservatives the right to even raise these faith-based defenses.
Tilting the playing field
Which brings us to where we are today: Congress eventually passed a less-ambitious version of RLPA that skipped over gay rights, abortion, and other contentious topics. Meanwhile, a number of states began passing their own religious liberty laws modeled on the federal RFRA. Early versions of these state RFRAs tracked the federal law very closely and caused little or no controversy. But as more religious claimants failed in their efforts to challenge gay rights laws, some sponsors of state religious-liberty laws wanted to go further. Just as LGBTQ advocates had killed RLPA in order to give same-sex couples a better chance of winning their disputes with religiously conservative landlords, these conservatives were now trying to guarantee that the landlord or restaurant owner would win.
In North Dakota, for example, religious conservatives sought to eliminate the requirement that government-imposed restrictions on religion be “substantial” before subjecting them to the “compelling interest” test. This meant that even indirect and remote burdens would be subject to strict scrutiny. So not only might you be able to send your child to a parochial school, you might be able to force the state to pay for it. In Mississippi, the proposed law sought to protect people who refuse to provide services due to their religious objections about same-sex marriage, extramarital sex, or a person’s transgender status. The North Dakota law failed; the Mississippi law passed (and was later struck down by a district judge). Similar statues were introduced in Arizona, Indiana, and Georgia with varying results. The common thread in most of these new laws was they sought to tilt the playing field in favor of religion—traditional, conservative religion.
While these highly controversial religious freedom bills were being debated in state legislatures across the nation, other religious conservatives were fighting things out in the courts. That’s exactly where RFRA envisioned such claims would be debated and decided, but some of these claims had gone beyond what the RFRA coalition had envisioned religious organizations and individuals would need to protect their liberty of conscience. Specifically, large, for-profit businesses were claiming that they should be exempted from insurance laws requiring them to provide contraceptives. Even religious organizations that already qualified for exemptions under the Affordable Care Act claimed that simply filing the request for an exemption substantially burdened their exercise of religion.
Though discouraging, none of the rancor that has gone on in state legislatures and the courts should surprise us. This is not religious liberty in the abstract; it’s gritty and real. For liberals and members of the LGBTQ community, the folks claiming rights of conscience are denying access to such fundamental human needs as housing and health care. How could anyone not take offense at that?
On the other side, conservative religionists question why they should be asked to violate some of the most fundamental teachings of their faith by aiding and abetting same-sex marriage when other wedding photographers, bakers, or landlords might be willing to provide the couple with these services. The same goes for the religious employers who object to being forced to provide contraceptives to their employees. Of course, Americans must learn to live together with our deepest differences. But finding a constituency for the common good seems harder and harder in this age of identity politics.
We the ... tribe?
Which is why RFRA is so important, for both liberals and conservatives alike. First, there is no America without liberty of conscience. Along with the other freedoms set forth in our Constitution and Bill of Rights, our freedom of conscience is literally what defines us as a people. Not whether we are white, black, brown, queer, straight, Republican, or Democrat. Our “tribes” are important, but the Constitution does not begin “We the tribe.” We are Americans because we share the “inalienable” rights and responsibilities expressed in our founding documents.
Second, RFRA applies its time-tested protections for conscience evenly to all. It may be conservatives who are invoking RFRA today, but believe me, it will be liberals tomorrow. We saw this during the ’60s when the First Amendment was invoked to protect both civil rights workers and anti-war protesters.
Still, hope for the future sometimes arrives in the unlikeliest of places. Most recently it came in a state dominated by religious conservatives.
Mormons may be the last people on the planet you would expect to support a gay-rights law, but that’s exactly what they did. And the LGBTQ community in Utah might be the last group of liberals you would expect to respect the convictions of religious conservatives. But that’s what they did. In 2015, Utah passed a law prohibiting discrimination on the basis of sexual orientation in housing and employment. And the new law provides respectful accommodations for the Latter Day Saints to ensure that they can continue their mission without compromising the moral convictions of the church. Mormon churches and church agencies will not be forced to conduct same-sex marriages or to abandon their right to discriminate on the basis of church doctrine when they hire and fire.
In short, America still works. But only when we are able to lay aside our tribal differences and work for the common good.
Almost sounds like loving our neighbors as ourselves, yes?