‘It is perhaps not too hyperbolic to suggest that in the history of the republic, there has rarely been a bill which more closely approximates motherhood and apple pie. . . . . In fact, I know, at least so far, of no one who opposes the legislation.”
With these words, the late Representative Stephen Solarz (D., N.Y.) described the unstoppable legislative train that was the Religious Freedom Restoration Act (RFRA). Passed in 1993 with a voice vote in the Democratic-controlled House and by a 97–2 majority in the Democratic-controlled Senate, and signed by Bill Clinton, RFRA was a bipartisan response to a religious-freedom crisis caused, in part, by a psychedelic drug.
In the late 1980s, Alfred Smith and Galen Black worked at an Oregon drug-rehab clinic and were members of the Native American Church, whose sacraments include smoking peyote. That part of their religion was not compatible with their occupation (or with the law; peyote was a Schedule I controlled substance under Oregon law), and Smith and Black soon found themselves out of a job.
They then did what many millions of Americans do when they lose their jobs: They filed for unemployment compensation. Sadly for religious liberty, their application was denied. Oregon, like virtually every state, doesn’t compensate former employees when they’re terminated for “misconduct,” and if anything constituted “misconduct,” toking up a Schedule 1 controlled substance while employed at a drug-rehab clinic certainly did.
But Smith and Black weren’t going to take no for an answer. Claiming that they didn’t smoke peyote recreationally but as part of a religious ceremony, they said their drug use was a constitutionally protected free exercise of religion. Therefore, they argued, it could not constitute “misconduct,” because the First Amendment’s religious-liberty guarantee trumps Oregon law. Smith and Black launched a legal challenge that, after a long and winding road, wound up in 1989 at the Supreme Court of the United States, where the Court was asked to decide a single, limited question: Did the First Amendment protect the sacramental use of peyote?
Given the small stakes, the case at first did not generate much interest. After all, it wasn’t that different from a number of other free-exercise cases the Court had decided in the preceding decades. (After hearing few religious-liberty cases in its first century and a half of existence, the Court started encountering them much more often after World War II, as the explosive growth of the regulatory state brought government into direct conflict with a growing number of religious practices, many of them well outside the mainstream.)
For example, there were claims that Social Security numbers rob a child of his or her “spirit” (Bowen v. Roy), that road construction would damage an “indispensable” Indian religious site (Lyng v. Northwest Indian Cemetery Protection Association), and that Social Security payments violated the Old Order Amish faith (United States v. Lee).
The Court decided each of these cases, and others like them, using the then-accepted “compelling”- or “overriding”-government-interest test first articulated in Sherbert v. Verner in 1963. Under that test, once a citizen established that a given state action substantially burdened his exercise of religion, the government could prevail only if it demonstrated that its action furthered a “compelling governmental interest” and the challenged action was the “least restrictive means” of furthering that interest.
While the compelling-interest standard was daunting for the government, it was hardly insurmountable. In fact, the government routinely won at the Supreme Court, as in the Bowen, Lyng, and Lee cases discussed above.
Back to peyote. When Smith and Black took their case to the Supreme Court in the weeks before Thanksgiving in 1989, few paid attention. To religious-liberty lawyers and scholars, the case was of only marginal interest. The Court could quite easily have ruled against Smith and Black on the grounds that the state had a compelling interest in stopping the scourge of illegal drugs. To most civil libertarians, this outcome would have been unfortunate but not particularly important.
The Court did indeed rule against Smith and Black, but it did so in a manner that created shock waves — and not just within the tiny worlds of litigating civil libertarians and fringe religious practitioners. Its ruling caused the nation’s largest religious organizations to express deep dismay. Rather than finding a compelling government interest in enforcing drug laws, the Supreme Court (with Justice Scalia writing the majority opinion) articulated a new religious test, one that essentially relegated the free-exercise clause to the scrap heap.
Under this new test, if a law was “neutral” and “generally applicable” (in other words, not aimed at religious practice), the free-exercise claim would fail. This meant no more balancing tests, and thus no more compelling-government-interest requirements for state actions. In short, this meant dramatically diminished constitutional protections for religious minorities.
#page#While the public largely yawned (that peyote was still unlawful was hardly surprising), religious organizations and civil libertarians were joined by Democrats and Republicans who could easily imagine their constituents’ facing threats to even the most mundane and accepted religious practices (could the underage drink Communion wine?).
RFRA was the result. The goal was hardly revolutionary: It was simply to restore the status quo prior to the peyote case, with the same balancing test and the same compelling-interest requirement.
The statute was passed, people of faith breathed a sigh of relief, and most of America shrugged. After all, the compelling-interest test had been in place for decades. There was no chaos. There was no confusion. There was no threat to “social justice.”
Yet now, 21 years later, RFRA and its various state incarnations are the Great Satan and Little Satans of American statutory law, the diabolical gremlins that the Left claims will bring back Jim Crow, spur “secessionist” impulses, and potentially cause the engine of American progress to stutter and stall.
What happened? Why do the principles that the Left applied to protect peyote now threaten the republic when they protect a chain of hobby stores from having to pay for products that are widely (and cheaply) available on the open market?
To borrow an excellent phrase from Greg Lukianoff, a liberal civil libertarian and the president of the Foundation for Individual Rights in Education, America began “unlearning liberty” — including religious liberty. It’s a story that’s been told a thousand times. Free speech and diversity of thought — useful concepts to dissenters charging the barricades — became annoyances (and worse) when the dissenters gained tenure, or became GS-14s deeply embedded in the alphabet soup of federal agencies, or ran television studios and wrote our songs and sitcoms.
While the leftist establishment has been beset by numerous divisions, largely on economic issues, on one point it has only grown more resolute and unified: The sexual revolution may not be stopped. It may not even be slowed. Or, to quote EEOC commissioner and former Georgetown law professor Chai Feldblum, “When religious liberty and sexual liberty conflict, I’m having a hard time coming up with any case in which religious liberty should win.”
And so, in cases across the land, sexual liberty has directly confronted religious liberty, and religious liberty has often lost. Whether Christian photographers are compelled to photograph gay weddings, Christian students of counseling are compelled to mouth pro-gay platitudes, or pro-life activists are compelled to shut their mouths when close to abortion clinics, the argument has been the same: Religious liberty is hateful and hurtful, and it must recede so that sexual self-actualization may proceed not merely unimpeded but increasingly uncriticized.
None of this is exactly new. Indeed, same-sex marriage’s threat to religious liberty is the subject of intense debate. And while the Left has won important battles, it has not yet won the war.
A few universities have expelled Christian groups, but most have not, and Christians still meet on hundreds of campuses. New Mexico may require its photographers to lend their creative talents to same-sex weddings, but many states do not, and the number of disputes about photography and other wedding services can be counted on the fingers of one hand.
And in the abortion debate, many of the nation’s blue states continue to censor activists, but the U.S. Supreme Court is deciding a challenge to Massachusetts’s draconian limitations on pro-life speech, and liberty may actually win a round.
So the problems, while extensive, were still manageable. Victories or losses in one location did not require the same result elsewhere, and religious liberty, though embattled, proved surprisingly resilient.
Then came Obamacare and the HHS contraception mandate.
Given the explosive growth of the regulatory state, the ideological commitment of the Left to the sexual revolution, and a partisan bureaucracy in which career staff are increasingly divorced and alienated from conservative and religious thought and expression, it was inevitable that there would eventually be a federal act so decisive, so direct, that it put the very existence and viability of religious liberty to the test.
Simply put, a nation that can compel its citizens — individual or corporate — to pay for and facilitate access to abortifacients or contraceptives, products that directly violate and indeed shock the consciences of some mainstream American Protestants (in the case of abortifacients) and faithful Catholics (in the case of contraceptives) — especially when such products are cheaply and widely available without employer provision — is a nation that has lost any conception of our first freedom. It is a nation that ultimately will not bind or limit the power of its government.
With the peyote decision granting constitutional approval to ostensibly “neutral” laws like Obamacare, only RFRA — a Democratic-led Congress’s firewall against Supreme Court error — stands in the way of Obamacare’s ultimate ideological achievement.
#page#So RFRA must be destroyed.
The onslaught has been ferocious and misleading. Writing in The Atlantic, legal scholar Garrett Epps called a company’s assertion of rights under RFRA the equivalent of an “ordinance of secession — a statement that religious bodies, and people, and even commercial businesses, no longer belong to society if they decide they’d rather not. The idea depends on an assumption that government itself is sinful, and presumptively illegitimate.”
This is a curious claim, since the allegedly secessionist powers are using the federal courts (an instrument of government) and a federal statute (a government law) to challenge a mere federal regulation. It would be difficult to find a protest that more closely adhered to the rule of law.
But that’s not the only extreme argument. There is of course also the notion that RFRA’s compelling-government-interest requirement is somehow the legal equivalent of an “I win” button that will allow businesses to exempt themselves from regulations at will, with no democratic recourse.
Disturbingly, this was the thrust of one of Justice Kagan’s lines of questioning at the oral argument in the Hobby Lobby case, as she asked Paul Clement, attorney for Hobby Lobby, whether a ruling for his client could place at risk laws on sex discrimination, the minimum wage, family leave, and child labor.
This misconstrues the text of RFRA and the legal history of the compelling-interest test. RFRA does not mandate any outcomes; it merely prescribes a balancing test — with the government bearing the responsibility of demonstrating a compelling interest when it substantially burdens religious liberty. History has shown that sex- and race-discrimination laws, minimum-wage laws, child-labor laws, and the Social Security system all survived and thrived under the very legal regime Justice Kagan hinted was so threatening. Indeed, even the most cursory review of Supreme Court authority under the compelling-government-interest test shows that litigants have often faced long odds (too long) when confronting regulatory regimes.
Then there is, of course, the historically nonsensical idea that a corporation can’t exercise a right to religious liberty. This argument builds on the rhetorical fiction that the Supreme Court somehow caused a cataclysmic legal earthquake in Citizens United v. FEC when it found that corporations have First Amendment rights to free political speech — a mistaken decision, the argument goes, that had no support in precedent and was in any case restricted to speech. Yet the Court in that case cited no fewer than 23 previous cases recognizing corporate rights to free speech, including — notably — two cases in which the New York Times was the petitioner.
The Times now apparently believes that corporations can speak but are not, to quote a recent editorial, “capable of prayer or other religious behavior.” But a corporation engages in religious behavior in the same way that a corporation engages in protected speech, through the human beings that empower its every action. Corporations can be large chain stores with Christian owners, but they are also churches, hospitals, soup kitchens, and newspapers. Some are for-profit, some are not, but they all engage in expression and behavior at the behest of their owners and for the purpose of advancing the owners’ values and goals.
One looks at the misleading assault on liberty and despairs. For too many of our nation’s media, academic, and governmental elite, appeals to pluralism and diversity are valuable only as tactical tools and rhetorical flourishes to facilitate their climb to power, with the ladder to be promptly pulled up behind them once they reach the sought-after heights.
Religious liberty exists as a core civilizational value not just because pluralist societies profit from it, but because the human heart demands it. If history teaches anything, it teaches that the religious impulse — the sense of eternity set in the hearts of men (to paraphrase Solomon) — is nothing if not powerful.
It’s an impulse that can and does change lives and nations. It’s an imperative so strong that even the mightiest of totalitarian governments struggle to suppress it. The desire of many millions to follow God is good, but it also just is — it is a primal force that must be acknowledged and respected to the extent that its exercise does not harm the rights of others. In fact, the very act of suppression in the name of uniformity can perversely fray the bonds of a pluralistic society. In liberty, there is unity. Not in conformity.
In 1993, key elements of the Left in a Democratic-controlled Congress seemed to get this, to understand this deep human need. In that day, at that time, the Supreme Court’s religious-liberty cases were easier for the Left to love, involving minority populations asking for — in the grand scheme of things — the most marginal accommodations. Would society collapse if a tiny sect smoked peyote? But now religious liberty threatens bigger things, such as the onward march of both the sexual revolution and the regulatory state. So history must be forgotten and the faithful must be demonized.
In 1991, Representative Solarz declared: “With the stroke of a pen, the Supreme Court virtually removed religious freedom — our first freedom — from the Bill of Rights.” After President Clinton signed RFRA, a different Democrat, former congressman Robert F. Drinan, expressed the hope that “with the stroke of a pen, the president gave that right back to the people.” As faithful Americans wait for the outcome of Hobby Lobby’s case, they can only hope and pray that the Supreme Court agrees.
May the vision of these Democrats prevail, and with it religious liberty.
– Mr. French is a senior counselor at the American Center for Law and Justice.