The law has become a transformational weapon used to strangle religious liberties.
The law has become a transformational weapon used to strangle religious liberties.
Y es, you have freedom of conscience, we are told. But freedom of action? Not so much. The First Amendment says the government may not “prohibit the free exercise” of religion. But a parchment promise is no guarantee of actual free exercise — the license to act in furtherance of the tenets of your faith — if such action would transgress the government’s laws.
For well over a century, the Supreme Court has instructed us that, while belief is sacrosanct, religious actions — the practice of faith — must conform to government’s laws. To abide a different arrangement would “make the professed doctrines of religious belief superior to the law of the land.” In effect, the Court concluded in Reynolds v. United States (1879), it would enable “every citizen to become a law unto himself.”
I’ve been sympathetic to this view for a long time. It’s wrong. The fallacy can be hard to spot, but when law is unmoored from democratic legitimacy, it is government that becomes a law unto itself — a law destructive of our liberties.
Many arguments against accommodating conscience-driven actions that violate the law are of the slippery-slope variety: If, for example, you let the Amish escape Social Security withholding based on their beliefs about the obligations of self-sufficiency, we’re to believe it won’t be long until the entire tax system collapses, and with it, government itself.
I didn’t need to play this logic out, though, because I started at the bottom of the slope. My first deep encounter with the collision between the mandates of law and the duties of faith was as a federal prosecutor dealing with jihadist terrorism. From that vantage point, the issue appeared in sharp relief — I believe, 30 years later, maybe too sharp for at least this observer to appreciate its historic and cultural complexities.
As a government lawyer dealing almost exclusively with serious crime, I was hardwired to advocate for the rule of law, without which our rights really are just parchment promises. I was, moreover, set against a cabal of fundamentalists who, contrary to politically correct lore, were truly representative of a construction of Islam that is backed by 14 centuries of sharia scholarship and is more influential among Muslims worldwide than Western elites would allow themselves to concede.
My defendants believed that they had been commanded by Allah to impose the ancient, draconian form of Islam’s legal and social system on the world, including by force whenever and to whatever extent necessary. I’ve tried to reframe this, from the Western perspective, as a totalitarian political ideology rather than simple religious belief, in large part because it does not admit of any separation between political governance and faith. But by the lights of the jihadists, which is what matters most on this point, it was solely because of religious devotion that they committed mass murder — nothing else but divine direction could compel it.
It was thus plain to see the appeal of Justice Antonin Scalia’s opinion in Employment Division v. Smith, issued in 1990 — i.e., around the time the jihadist cell that would bomb the World Trade Center three years later was forming up. If a law was neutral (i.e., not hostile to religion) and generally applicable (i.e., it treated everyone equally in what it prescribed or proscribed), then incidental burdens on religious practice could not justify an exemption from it.
This meant the essence of the Constitution’s Free Exercise Clause — which the Supreme Court has also “incorporated” against the states via the Fourteenth Amendment — was a safeguard against discrimination: Laws could not single out believers in a way that made it impossible, or at least extraordinarily difficult, to observe their faith.
Would that leave lots of running room for the government to impose incidental burdens? Sure. Smith itself provides a good example. The federal narcotics laws do not target Native American groups that make ritual use of peyote. The drug laws were enacted under Congress’s commerce powers to promote public health. Yet, their blanket criminalization of peyote incidentally covers ritual use, making the ritual illegal.
A regrettable result? Perhaps . . . but no freedom is absolute. If we’re to have ordered liberty in a pluralistic society, then even our most cherished rights have to accommodate other basic rights, as well as the necessities of governance. Religious exercise was no exception. I had seen up close religion-based actions intended not just to flout our laws but to destroy them.
Furthermore, the alternative — forcing government to justify sensible, nondiscriminatory laws any time they butted heads with some (usually eccentric) religious practice — seemed absurd. Why? Because the laws were democratically enacted and in the public interest.
That seemed to be the thrust of Justice Scalia’s reasoning in Smith. Since our liberties and government’s obligations are forever in tension, the Court’s refusal to craft free-exercise exemptions did not mean the tension would evaporate; it meant the tension would be resolved democratically: If petitions for exemption were reasonable and appropriate, legislatures would surely enact them, because religious liberty is engrained in our culture, and its mulish denial would be politically unpopular.
Plus, think of how courts would resolve the tension under the “strict scrutiny” test that applies when fundamental rights are at stake — requiring government to show (a) a compelling public interest in regulating, and (b) that the regulation adopted was the least restrictive means of vindicating that interest. As a practical matter, it would not be possible for judges to apply this test without making value judgments about the religious tenets at issue and about how critical the banned free-exercise behavior was to the vitality of those tenets. I could not imagine less appropriate subjects for politically unaccountable judges to delve into.
All so very rational. That’s why I was sure that my conservative Christian friends, who bristled over the Smith decision despite towering admiration for Scalia, just had not thought the matter through. They grasped neither the law-unto-ourselves bedlam that exemptions would create, nor the judicial tinkering in matters of faith that they were courting.
Over the years, though, I’ve been persuaded that I’m the one who failed to think it through. Not because the concerns Justice Scalia outlined with characteristic persuasiveness are not just as real as ever, but because the most basic assumption of the no-exemptions stance is a fiction.
The folly lies in assuming that law is a construct animated by our best interests: one that speaks for us as the public and enforces our collective will in those matters that government must regulate if we are to have security, domestic tranquility, and a free, functional economy. Since law is rudimentary to a flourishing free society, we suppose it is religious obligation that must accommodate the state, not the other way around — especially given that religion, at least ostensibly, is shielded from official hostility.
In reality, we don’t have law in this sense. We probably never have, but we are more remote from this ideal now than we have ever been.
The most consequential scholar on the genesis and original understanding of the Free Exercise Clause is Stanford’s Michael McConnell, the eminent former federal appellate judge. While acknowledging that there are gaps and ambiguities in the historical record, he has convincingly demonstrated that exemptions from the requirements of law based on the demands of faith were presumed to be constitutional at the time the First Amendment was ratified, and that the Free Exercise protection extends to action as well as belief.
That is, even if we accepted for argument’s sake the ideal of law described above, there still would be a powerful basis to require that government satisfy strict scrutiny (as outlined above: compelling interest/least-restrictive means) whenever law impedes religious exercise. In fact, the Supreme Court applied this very test to free-exercise claims before Smith eliminated it in the context of neutral, generally applicable laws; and the Court has continued to apply it when laws are not neutral and generally applicable (i.e., when they target religion, overtly and sometimes covertly). The test has plainly worked without plunging us into anarchy. It would work regardless of whether lawmakers burdened religious exercise intentionally or incidentally. My main concerns about religiously motivated violence (and I’m hardly alone here) were overblown, since laws criminalizing violence and other patent wrongs are easy to justify, even under strict scrutiny.
Nevertheless, the main reason we need heightened protection for religious liberty is that law is not what it’s cracked up to be. We miss that because we focus, as we must, on the history and parameters of the free-exercise right (which is why Judge McConnell’s work is invaluable). Law and governance tend to get a pass.
The United States emerged with a plethora of faith traditions (overwhelmingly but not exclusively Christian) out of the religious wars of England and, more broadly, Europe. The founding and the Constitution took place as the first Great Awakening evolved into the second.
The Framers fully understood the need to protect religious scruples, and the states would not have ratified the Constitution absent a Bill of Rights that did so explicitly. This was despite the expectation that the government would exercise only limited powers, none of which seemed, at first blush, destined to collide with the people’s religious observances.
As naïve as this expectation was in the late 18th century, we now live in what seems like a different universe.
Lawmakers and bureaucrats acknowledge no limitations on their regulatory authority. Our laws lack democratic legitimacy, even though they are passed, formalistically speaking, by politically accountable representatives, at least at the initial, “enabling” stage. The laws are so massive that no one could possibly read, digest, and understand their full extent when they are enacted (which is what leads a House speaker, of all people, to admit that a law needs to be passed before we can find out what’s in it). Just as significant, Congress sees its job as not to know the law’s content but to delegate the real law-making — to bureaucrats, who will write even more voluminous regulations, then selectively and ideologically enforce this fine print, sometimes in defiance of its dense words. They expect — not without reason — that courts will defer to the technocrats on the interpretation of the technocrats’ authority.
At this advanced stage of degeneration, to speak of neutral laws of general applicability is pointless. Laws and the regulations they spawn may appear even-handed on the surface, but they are rife with qualifications that empower agencies to exercise enforcement discretion. And then there is the worst part: the way that lawmakers, through these mega-laws, intentionally unleash litigious interest groups to bring lawsuits that call on courts to construe seemingly well-intentioned provisions in a manner that strangles religious liberty.
You may regard same-sex marriage as an irrational concept, though not because you harbor ill will toward the people involved. In fact, you may honor loving, monogamous relationships between same-sex couples and want the law to encourage them, and yet adhere to a traditional, religious conception of marriage — one that can no more categorize same-sex parties as “married” than the concept of fish can encompass a horse. You want to live and let live, so while you may not affirmatively support a law that enables same-sex marriage, your opposition is probably negligible, if you voice objection at all. You want people to be happy and fulfilled, even if their idea of the good life is not yours.
That’s a lot of us. But what if you knew at the time that the law you thought merely recognized civil marital rights for same-sex couples would be used, on a civil-rights theory, to put out of business a Catholic adoption agency whose religious principles do not allow for placement with same-sex couples — and put it out of business even if there are 30 other adoption agencies willing to facilitate such placements. You would realize, too late, that what you thought was “law” was not a benign accommodation of a small minority; it was a coercive vehicle for the authoritarian decree that what you were willing to tolerate for the sake of pluralism now requires nothing less than your endorsement . . . or at least your tacit but unqualified acceptance.
It is not religious groups that are being extreme and intolerant. It is government officials in collaboration with social-justice warriors under the guise of law. No longer is law a consensus corpus controlling narrow areas of obvious public interest. Law is now a transformational weapon that carves through every aspect of life, cutting in stealthy ways that the public never saw coming.
Smith’s understanding of the democratically legitimate law with which religious exercise would vie is simply not the law as it actually exists. Government no longer alerts us about what is in the laws it enacts, much less demonstrates why the laws are necessary. Under the circumstances, then, when it inevitably turns out that laws curtail religious liberty, there is no good reason to spare the proponents and enforcers of such laws from the burden of this demonstration. They should be put to the test: What supposedly compelling need does the law address, and why would a less burdensome regulation — one that respected religious liberty — not suffice?
The Supreme Court continues to duck this issue, deciding cases on tangential procedural grounds. In so doing, the justices abdicate their duty to clarify the constitutional protection of our basic rights while grinding to dust the beleaguered litigants — Jack Phillips of Masterpiece Cakeshop, the Little Sisters of the Poor, and now Catholic Social Services of Philadelphia — who “win” their cases only to be hauled into court again and again.
It is past time to stop ducking. Smith needs to go.