These past two years have seen religious liberty issues rise to the top of the priority list for the Catholic bishops of the United States. Some applaud this move as a necessary stand on principle, while others question whether religious liberty could possibly be under any serious attack in the United States of America.
For a time, I saw individual issues, such as the HHS Mandate, to be very serious, but wondered to what extent they represented an all-out assault on religious freedom that was likely to recur. My experience in the 2013 session of the Kentucky General Assembly has convinced me that we are dealing with a major cultural shift, away from respect for religious freedom as a value and toward hostility to religious faith.
In January, the Kentucky bishops, whom I represent in the public policy arena, endorsed an effort to enact a state law protecting religious freedom in the aftermath of a very disappointing court decision. To fully understand the context, and the basic legal principles and political issues involved, a short historical survey is necessary.
The First Amendment to the U.S. Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Unlike other clauses within the Bill of Rights (freedom of speech, the press, search and seizure) the “free exercise clause” has received comparably little attention from the courts.
In recent years, perhaps the most significant precedent is the 1990 decision in Employment Division v. Smith. The majority opinion, written by Justice Scalia, departed from other more recent religion-friendly cases and held that laws of general applicability were not to be judged by a heightened constitutional standard under the free exercise clause. In the case of other First Amendment clauses (such as the freedom of speech), the courts have required that the government demonstrate a compelling interest in addressing the problem which gave rise to the law in question, as well as showing that no less restrictive means were available to accomplish the intended goal, in order for the law to be upheld. In Smith, the Court said that the free exercise clause did not require such heightened scrutiny as long as the law did not specifically target religion but was of general applicability.
The immediate effect of Smith was bipartisan horror at what such a diminished view of religious liberty could mean. In 1993, Congress passed (with a unanimous vote in the House and 97-3 in the Senate) and President Clinton signed the Religious Freedom Restoration Act (RFRA). RFRA restored the compelling interest standard to free exercise cases. Originally, the law was intended as a limit on state law as well, but in City of Boerne v. Flores (1997), the Supreme Court held that application to state law exceeded Congress’ authority under the 14th Amendment. However, RFRA remained in effect as a limitation on federal law and is the basis for much of the current litigation over the HHS Mandate.
Following the Flores decision, numerous states enacted RFRA’s of their own, so that the compelling interest standard will be applied to First Amendment claims against state action as well as federal action. Also, a number of states have religious freedom clauses in their constitutions that are stronger than that found in the U.S. Constitution. However, as religious liberty has become a more contentious issue, a number of groups have openly opposed state RFRA’s and have spent millions of dollars to defeat efforts to enact them, especially when they are placed on the ballot for popular approval. Efforts to adopt RFRA’s failed by large margins in North Dakota in 2010 and Florida in 2012.
This year in Kentucky, a state RFRA bill was introduced for the same reason the federal law had been, a court decision rejecting the compelling interest standard. Instead of attracting universal support, however, the effort has drawn fierce opposition from the American Civil Liberties Union (a major proponent of the federal law!) and various homosexual rights activist groups.
The most frustrating aspects of this fight has been the arguments made by the opposition, and the response of the press. The opposing groups claim that “we know” such a bill will allow people to trample upon the civil rights of others simply by claiming a religious belief. This is patently false, as two decades of experience with RFRA’s, both federal and state, have shown. Legitimate civil rights claims involving housing, employment, and other public services, have not been successfully challenged with religious freedom defenses under the RFRA standard.
In fact, no one has yet been able to produce a single case involving RFRA where that has happened. An attorney for one group admitted, on the record, that there would likely be no negative effect in the courts, but said a law expressly protecting religious liberty would be an “embarrassment” to Kentucky. (For other statements that are clearly anti-religion, as well as a sound defense of the bill, you can watch the House floor debate here.)
The press, despite being confronted with this fact again and again, largely refuses to report it (with a few laudable exceptions). Front page headlines depict the debate as a fight between “religion” and “civil rights” as if religion were not a civil right. This is perhaps predictable, given the interest such a storyline can generate, but the result is inevitable confusion among the public.
Ultimately, the Kentucky bill passed both houses of the legislature with bipartisan majorities, but it now sits on the desk of the governor, who is under a great deal of pressure to veto it. Supporters of the bill are pushing back. I have no idea what he will decide to do. What is clear is that this fight would never have happened in any generation prior to our own.
Think about what we have said. Just twenty years ago, a federal law sponsored by Senators Ted Kennedy and Orrin Hatch was enacted by Congress in near-unanimous fashion. Social conservatives joined with the ACLU and People for the American Way in support of that bill. Newspapers praised it as a necessary reaction to a horrible court decision. Senator Kennedy’s speeches in support are eloquent expressions of the need to zealously guard rights of conscience.
Today, even in a socially conservative state like Kentucky, many will dismiss and defame the principles articulated by Senator Kennedy. We no longer have a broad national consensus on the importance of respecting religious faith. The battle is joined.
© 2013. Jason Hall. All Rights Reserved.