By Thomas Jipping, The Heritage Foundation
Thirty
years ago today, President Bill Clinton signed
into law the Religious Freedom Restoration Act,
or RFRA, to protect what he called “the most precious of all American
liberties.” Presidents of both parties have declared religious freedom to be
one of our most fundamental freedoms, a “critical foundation of our nation’s
liberty,” and “a fundamental human right.”
Congress
has unanimously recognized that
religious freedom “undergirds the very origin and existence of the United
States.” Yet only three decades after RFRA passed Congress with a total of only
three votes against it and grassroots support from across the ideological
spectrum, religious freedom is once again in danger.
People
wishing to practice their faith without government interference were coming to
these shores more than a century before James Madison made the “free exercise”
of religion the first individual freedom in the Bill of Rights. First in colonial charters and state
constitutions, then in the First Amendment itself, the law protected
the exercise of religion as a preferred, inalienable right that, Madison wrote, takes precedence
“over the demands of civil society.”
In his 1941 address to Congress, President
Franklin Roosevelt included the exercise of religion as one of “four essential
human freedoms.” The year before, the Supreme Court began articulating a strong
legal standard, later called “strict scrutiny,” that would allow government
interference only as a last resort and, even then, no more than necessary.
Only
the “gravest abuses,” the court said in 1945,
“endangering paramount interests, give occasion for permissible limitation” of
religious freedom. The Supreme Court also recognized that government can burden
religious practices in different ways, including
through laws that appear to be “generally applicable,” that is, laws that are
religion-neutral but still have a significantly negative effect on the exercise
of religion.
That’s
where things stood in 1990, when the Supreme Court changed everything. In Employment Division v. Smith,
two Oregon state employees challenged their firing and denial of unemployment
benefits for using peyote, a prohibited control substance, in their Native
American religious ceremonies. No one questioned that strict scrutiny was the
proper standard to determine whether the state’s actions violated the First
Amendment. No one raised, briefed, or argued that issue, and addressing it was
unnecessary to decide the case.
The
Supreme Court addressed it anyway, turning the free exercise clause on its
head. Going forward, Justice Antonin Scalia wrote for the court, strict
scrutiny would be applied only when the government deliberately and explicitly
targets the exercise of religion. Not a single free exercise clause case in the
previous 50 years, however, involved such explicit religious restriction. Every
case had instead been of the “generally applicable” kind, challenging the
burdensome effect of government action that appeared religion-neutral.
Congress
responded by enacting RFRA in 1993 to once again require that strict scrutiny
be applied universally to all free exercise claims. Regardless of party or
ideology, members of Congress and grassroots organizations united around a
single principle: Everyone should be able to challenge government action that
interferes with this special right.
While
strict scrutiny puts a thumb on the scale in favor of religious freedom, courts
still ruled for the government in a majority of free exercise clause cases
prior to the Supreme Court changing the rules in Smith. Since then, the
government wins almost every time.
Today,
however, a campaign is underway to do to RFRA what the Supreme Court did to the
free exercise clause. Several bills have been introduced in Congress to advance
the Left’s agenda on issues such as LGBTQ rights and unrestricted access to abortion.
That’s bad enough by itself, but these bills would block application of RFRA so
that government could restrict, or even prohibit, religious practices that
might slow down that agenda.
The Equality Act, for example,
would change seven important federal statutes to prohibit discrimination on the
basis of sexual orientation or gender identity in areas such as employment,
housing, credit, or jury service. Professor Douglas Laycock, a prominent First
Amendment scholar who helped write RFRA, has explained that the Equality Act
“is not a good-faith attempt to reconcile competing interests. It is an attempt
by one side to grab all the disputed territory and to crush the other side.”
In
another example, the Women’s Health Protection Act would
prohibit any government, down to the level of towns and villages, from doing
anything that might make abortion less likely. Like the Equality Act, it would
block any application of RFRA, depriving religious employers of any chance to
challenge being forced to pay for employees’ abortions or health care workers
any chance to challenge being required to participate in them.
Additionally,
the Do No Harm Act would
amend RFRA itself so that it would not apply to laws that prohibit discrimination or
promote “equal opportunity.” These bills would immunize any government action
in these broad areas from any challenge that the action compromised or
undermined anyone’s right to practice their faith.
Introducing
bills is one thing, but these attacks on religious freedom are supported by a
growing number of organizations and members of Congress who backed RFRA in
1993. Back then, they demanded that strict scrutiny be applied universally;
today, they want to quash any protection for religious practices they do not
favor. At least 15 organizations that opposed any exception to RFRA in 1993
have endorsed one or more of the aforementioned bills that would gut RFRA
today.
The
American Civil Liberties Union, for example, signed a letter opposing any
amendment to RFRA when it was enacted. Its president at the time, Nadine
Strossen, testified before both the Senate and House Judiciary Committees that
the exercise of religion is a “preferred” value and should be protected as a
fundamental right. The ACLU has today endorsed all three of the RFRA-busting
bills.
People
for the American Way also opposed any limitation on RFRA’s application in 1993.
Its then-president, John Buchanan, testified that RFRA should apply
universally, “neither endorsing or opposing any particular faith or practice.”
Today, however, the group promotes all of the bills that would make impossible
the “balancing test” that Buchanan insisted in 1993 was so critical.
A
total of 31 current senators and House members, 25 Democrats and six
Republicans, were serving in either the Senate or House in 1993. All of them
supported RFRA, with many also co-sponsoring the legislation and advocating its
universal application in Senate and House floor speeches.
Today,
however, all 25 Democrats have co-sponsored or voted for one or more of the
bills that would tear apart the protection for religious freedom that they
claimed was so essential just three decades ago.
Were
the Founders correct that the right to exercise religion is a preferred
inalienable right? The U.S. Constitution, federal statutes and
treaties, and American presidents across parties and generations have said so.
RFRA
stands for a very simple, yet profound, principle: This fundamental right
belongs to everyone, and it should always be difficult for the government to
undermine it. This “most precious of all American liberties,” as President
Clinton put it, is today on shaky ground because the consensus behind that
principle is crumbling.
The Senate Judiciary Committee’s 1993
report on RFRA called religious freedom “among
the most treasured birthrights of every American.” Without a renewed commitment
and a conscious decision to put this freedom ahead of politics, that birthright
may be lost forever.
+++
Editor’s note: Thomas
Jipping is a senior legal fellow with the Edwin Meese III Center for Legal and
Judicial Studies at The Heritage Foundation and has been a frequent guest on
the Faith On Trial radio program.
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