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The Church and the RFRA
Democrats used to believe in religious freedom.

Stephen Solarz in 1997

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Priests for Life, the nation’s largest Catholic organization dedicated to ending abortion and euthanasia, has filed suit against the Obama administration for its birth-control mandate, claiming it violates the Religious Freedom Restoration Act of 1993. It’s a plausible argument — and a role reversal for the Catholic Church.

In April 1990, the Supreme Court ruled in Employment Division v. Smith that the state of Oregon could deny unemployment benefits to men fired because they had used peyote, despite the fact that they had used it at a ceremony in a Native American church. Writing for the Court, Justice Antonin Scalia argued that the First Amendment did not prohibit “neutral, generally applicable” laws that incidentally burdened religiously motivated activity.

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The decision provoked outrage. “With the stroke of a pen the Supreme Court virtually removed religious freedom, our first freedom, from the Bill of Rights,” said Representative Stephen Solarz, a Democrat from New York. That July, he introduced the Religious Freedom Restoration Act with Representative Paul Henry, a Republican from Michigan. The act sought to reinstall an approach to the First Amendment previously enforced by the Court: The government couldn’t interfere with religious practice unless in pursuit of a “compelling government interest” — and even then, the government would be obliged to use the least restrictive means possible.

The secular Left and religious Right united in a political alliance: The American Civil Liberties Union joined the fight, as did the National Association of Evangelicals — and 48 other groups.

“You had the civil-libertarian Left that thought Employment Division v. Smith was wrong, and you had the conservative religious Right, who wanted to protect religious liberty, even though they were not particularly fond of drug use,” remembers Professor Michael Paulsen of the University of St. Thomas School of Law. “It was a wonderful strange-bedfellows combination that supported the passage of the RFRA.”

Testifying before a congressional panel, Nadine Strossen, president of the ACLU, even warned, as the State News Service reported, that the Smith decision “could force religion-sponsored hospitals to provide abortion or contraception services.”

But one religious institution opposed the the RFRA: the U.S. Conference of Catholic Bishops.

In 1990, Republican presidents had appointed the last four Supreme Court justices, so conservatives were hopeful that the Court would soon overturn Roe v. Wade. In that case, the conference was worried that under the RFRA women could claim the right to an abortion as a matter of religious belief.

The National Right to Life Committee shared this worry. “Our position is that we’re opposed to the bill unless it excludes these kinds of claims,” NRLC’s executive director Douglas Johnson said.

“We believe that the concern is not far-fetched,” said Mark Chopko, general counsel for the U.S. Catholic Conference. Nonetheless, Chopko added that “we want to be supportive of legislative remedies” to the Court’s ruling.

Chopko later admitted “the risk to human life [was] too severe” for the conference to support the bill without an amendment that made it “abortion-neutral.”

Jewish groups, meanwhile, were working in favor of the RFRA, worried that the Smith decision could threaten Jewish practices. “The Catholics are working very deftly behind the scenes,” an official with a major Jewish group told the Baltimore Jewish Times. “We can talk until we’re blue in the face about the fact that this is not an ‘abortion bill’; it’s about a very dangerous Supreme Court decision that threatens our most basic religious liberties. But they are pushing the issue very hard — and with an election year coming up, they’re making things very difficult.”

With Democrats in control of both houses, passage of the RFRA should have been relatively easy, but President George H. W. Bush promised to veto the bill unless it included the abortion language. That, for the Left, was a nonstarter. As a result, the bill went nowhere for three years.

But in June 1992, the Court upheld most of Roe v. Wade in a new case, Planned Parenthood v. Casey, signaling that abortion rights would be around for a while. “I think that played a big role in that objection’s losing its force,” says Professor Tom Berg of the University of St. Thomas School of Law.

And in September, presidential candidate Bill Clinton endorsed the bill. When he won election in November, the bill’s passage was all but assured.

In May 1993, the bill was resurrected by Representative Chuck Schumer. “Under Smith, the practice of using sacramental wine, wearing a yarmulke, kosher slaughter, and many other religious practices all could be jeopardized,” he warned the House when introducing the legislation.

Representative Nancy Pelosi also voiced her support: “This legislation is important because it protects an individual’s religious freedom from unnecessary government interference. It provides for the reestablishment of fair standards to determine if government intervention is necessary.”

As did Representative Steny Hoyer, who warned that, because of Smith, “one Catholic teaching hospital lost its accreditation for refusing to provide abortion services.”

Support was so widespread that the RFRA passed the House in a voice vote. In the Senate, the final version passed 97–3. Only Robert Byrd, Jesse Helms, and Harlan Matthews voted against it.

Now, the RFRA is the law of the land, and the conference is poised to assert its rights under the legislation. The switcheroo is amusing, but also embarrassing for Democrats, who, after preaching from the mountaintops the virtues of religious liberty, are riding roughshod over them.

— Brian Bolduc is an editorial associate at National Review.



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