Can America's Religious Freedom be Restored?

It was 1990, and I was a second year law student taking a course in constitutional law. The spring semester was almost over when our “conlaw” professor came into our classroom, slammed his textbook down on the lectern, and announced, “The Supreme Court just wiped out everything I've been teaching you about religious liberty jurisprudence—forget everything you've read in the textbook, because this case changes everything.” The case that had so disturbed my professor was Employment Division v. Smith, 494 U.S. 872 (1990), and it was not the outcome that was disturbing, but the reasoning the justices used to reach their decision.

Before Smith “wiped out everything,” the Supreme Court had developed a body of case law interpreting the First Amendment's “free exercise” of religion clause (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”) designed to balance a state's interest in its legislative goals against the rights of someone whose religious beliefs or practices were “burdened” or adversely affected by the legislation. Because freedom of religion is a basic constitutional right, laws that burden religion were “strictly scrutinized,” meaning that any such law could be struck down unless, (1) the law achieved a “compelling governmental interest,” (2) the law or policy was narrowly tailored to achieve that interest; and (3) the law or policy was the least restrictive means for achieving that interest.

One of the cases that helped established this jurisprudence involved a Seventh-day Adventist, Adell Sherbert, who had been fired from a South Carolina textile mill because she would not work on Sabbath. When she applied for unemployment benefits, the state refused to pay them on the grounds that she was fired for cause, not laid off. In Sherbert v. Werner, 374 U.S. 398 (1963), the Supreme Court ruled that the denial of Sherbert's unemployment claim substantially burdened her free exercise of her religion. Justice Brennan wrote, “to condition the availability of benefits upon [Sherbert's] willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties.” Another important “Free Exercise” case was Wisconsin v. Yoder, 406 U.S. 205 (1972), in which the court held that Wisconsin's compelling interest in educating the state's children must yield to Amish parents' religious belief that their children should not be compulsorily educated in state schools beyond the eigth grade.

In Employment Division v. Smith, two men, Alfred Smith and Galen Black, had been employed as counselors at a private drug rehabilitation clinic, and as part of a Native American religious ritual had ingested the psychedelic drug, peyote. When the rehab clinic discovered this, Smith and Black were fired from their jobs as counselors, and subsequently denied benefits by the employment division of the State of Oregon. When the case reached the Supreme Court, court watchers speculated over which would prevail in this case: Oregon's compelling governmental interest in discouraging the use of psychedelic drugs, or Smith's and Black's freedom to participate in peyote-fueled Indian religious ritual. What no one expected was for the court to abandon the jurisprudence it had been developing for decades and adopt an entirely new mode of analysis. But that is what happened.

Tossing out the previous "Free Exercise" jurisprudence, the Smith court held that a “neutral law of general applicability”—meaning, a law that was not aimed at harassing or outlawing a specific religious practice or belief—need not yield to any perceived burden on religion. Smith and Black were attempting by a claim of religious motivation to exempt themselves from Oregon's neutral, generally applicable ban on peyote, held the court, and the “Free exercise” clause does not allow them to do so. “To permit this,” wrote Justice Scalia, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

My professor was not the only one outraged by Employment Division v. Smith. Almost immediately, religious liberty experts began to explore how to restore the previous “Free Exercise” jurisprudence that Smith had swept away. These efforts culminated in the Religious Freedom Restoration Act of 1993. The act's drafters noted how Smith had discarded long-established law, and stated that the act's purpose was “(1) to restore the compelling interest test set forth in” the Sherbert and Yoder cases “and to guarantee its application in all cases where free exercise of religion is substantially burdened, and (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.” The operational part of the act stated:

a) IN GENERAL—Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b)

(b) EXCEPTION.—Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person,

  1. is in furtherance of a compelling governmental interest, and
  2. is the least restrictive means of furthering that compelling governmental interest.

Introduced in the House of Representative by Chuck Shumer (now a Senator) and in the Senate by the late Ted Kennedy, the measure enjoyed overwhelming bipartisan support, passing on a voice vote in the House and by 97 to 3 in the Senate. President Bill Clinton signed the bill into law on November 16, 1993.

The Religious Freedom Restoration Act (RFRA) enjoyed a relatively quiet history until last year's Supreme Court decision in Burwell v. Hobby Lobby, 573 U.S. ___ (2014). Hobby Lobby is a chain of stores owned by David Green and his family, through a closely held corporation. The Greens believe that human life begins at conception, and have religious compunctions about contraceptives that work by destroying a fertilized egg. They objected to an HHS mandate, issued pursuant to authority granted under the Affordable Care Act, a/k/a “Obamacare,” that forced Hobby Lobby to provide its employees with post-fertilization “contraception.” The Supreme Court ruled in the Greens' favor under the RFRA, holding that the HHS mandate was a substantial burden on the Greens' exercise of their religious freedom, and was not the least restrictive means of furthering the government's interest in making contraception available. Several states have passed their own versions of the RFRA, with the trend accelerating now that Hobby Lobby has shown the measure to be a viable and effective way to protect religious freedom.

You will have noticed that none of this has anything to do with homosexuality. One of America's leading scholars of religious liberty law, Douglas Laycock, stated:

“These state RFRAs were enacted in response to Supreme Court decisions that had nothing to do with gay rights or same-sex marriage, and the state court decisions interpreting their state constitutions arose in all sorts of contexts, mostly far removed from gay rights or same-sex marriage. There were cases about Amish buggies, hunting moose for native Alaskan funeral rituals, an attempt to take a church building by eminent domain, landmark laws that prohibited churches from modifying their buildings – all sorts of diverse conflicts between religious practice and pervasive regulation.”

So why does the Indiana RFRA have homosexual activists frothing at the mouth? Based upon interviews he gave a week ago, Indiana Governor Mike Pence did not know. The operative portion of Indiana's measure is identical—word for word—to the federal law quoted above, and has nothing to do with homosexuality, or religious compunctions about, for example, providing a cake, or flowers, or photographs for a same-sex wedding.

One difference between Indiana's law and the federal RFRA is that Indiana's law defines “person” to mean not only a natural person, but also almost any legal entity through which people conduct business, including a partnership, an LLC, a corporation, etc. But there is really nothing new here, because the Supreme Court held in the Hobby Lobby case that a person does not give up his right to freedom of religion by doing business through a legal entity such as a closely-held corporation. In this respect, the Indiana law merely explicitly codifies the Supreme Court's interpretation of the federal RFRA.

From what I can gather from the utterly unhinged, hysterical opposition to this law, the gay activists do not like the following language, which immediately follows the operative language that tracks the federal statute:

“Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.”

As a lawyer of 20 years' experience, I do not read this as creating a defense in a case in which the alleged burden to the exercise of religion was not created by a law or governmental policy. In other words, it does not seem to apply to a purely private situation in which a gay couple asked a baker to provide a cake for their same-sex wedding, the baker refused, and the gay couple sued the baker. Rather, it says that if a law or a government policy has substantially burdened a person's free exercise of religion, his right to raise this statute as a defense does not depend on the government being a party to the suit. I find myself in complete sympathy with Governor Pence's mystification at being accused of having signed some horribly homophobic legislation.

But let's assume the gay activists are right, and that § 9, quoted above, does in fact create a defense to a lawsuit against a baker, florist, or photographer who does not, for reasons of religious belief, want to help celebrate a same-sex wedding. Is that so terrible? Is it so unreasonable or unjust, so unspeakably horrible, for such a person's religious scruples to be accommodated, that Indiana, on suspicion of having passed a law to accommodate them, should be boycotted and threatened with boycott and all manner of retaliation by all sorts of business leaders and organizations? Because that is what just happened. Gay activists and their supporters became a noisy mob because of the mere possibility that someone might be able to legally raise a religious objection to being dragooned into the public celebration of homosexual “marriage.”

This is a very revealing moment in our national life. The intolerance of the “gay rights movement” has been laid bare, and it is ugly. If gay activists were interested in mutual toleration, in “live and let live,” there are plenty of bakers, florists and photographers who would be thrilled to take their money. Instead gay activists are seeking out people with moral objections to same-sex marriage, to punish them, to publicly ruin them, and thus to make them an example for anyone else who might step out of line. To date, their victims include Aaron and Melissa Klein, who lost their bakery because they refused to provide a cake for a same-sex wedding, Barronelle Stutzman, who was sued and has lost at the trial court level for refusing to provide flowers for a same-sex wedding, and Elaine and Jonathan Huguenin, photographers in New Mexico who were sued and heavily fined for refusing to photograph a same-sex wedding. “Betrothed gays looking for wedding cakes and floral arrangements are not just carelessly stumbling into homophobic bakeries and florists,” notes Mark Steyn. “It's an organized campaign consciously targeting particular establishments. . . . What we're seeing is a campaign to enforce ideological discipline and conformity in every area of daily life.”

The gay activists' goal was never toleration; their goal, which is now within reach, has always been to crush any public expression of disapproval of homosexual conduct. As Tucker Carlson said on Bret Baier's “Special Report”:

“The demagoguery around this is really nauseating. . . . We've always made exceptions for religious minorities. Quakers can become conscientious objectors. So you have a country where religious minorities get to choose which wars they fight in, but not whether to serve cupcakes at a wedding that would violate their religious principles. It's insane. And I have to say, all the talk of tolerance that a lot of us sort of took at face value in the '90s and even last decade: 'why can't we all just get along, you accept me, and I'll accept you.' They didn't mean it at all. These are absolutists, these are jihadis, these are people who want to make you obey, that don't brook any opposition to their worldview at all--they will crush you.”

Speaking of crushing people, an Indiana pizzeria owner who was brave (and foolish) enough to publicly state that he wouldn't cater a gay wedding was put out of business by the gay mob in less than half a day; he is now in hiding.

The evidence keeps piling up that culturally ascendant gay activists and their fellow travelers will not tolerate a world in which conservative Christians are allowed to publicly state their beliefs about homosexuality. They tried to hound Phil Robertson off of Duck Dynasty for his blunt comments about homosexuality, and they succeeded in getting Mozilla CEO Brendan Eich fired for having made a small contribution to Proposition 8, a California measure aimed at protecting traditional marriage. You're welcome to your religious beliefs for one hour on a Saturday or Sunday morning, but if you try to put them into practice during the other 167 hours of the week, you'll be crushed, if they can find a way to destroy you.

Except that you're not really entitled to your beliefs even during that one hour. The “mainstream” Protestant denominations have caved on the homosexuality issue. In the Episcopal Church, sodomy is not a sin—they had an openly gay bishop, V. Gene Robinson—but Katherine Jefforts Schori just announced that climate change denial is a sin (to the consternation of Episcopalians everywhere, who were shocked to learn that their church still believed in sin). The United Church of Christ began ordaining people with same-sex partners in the 1970s, and by 2005, had endorsed gay marriage. The Presbyterians (PCUSA) authorized ordination of gays in 2011, and just last month announced that they'll be conducting same-sex weddings in their churches.

And you're not entitled to that one hour in some precincts of the Seventh-day Adventist Church, either. Our own Elizabeth Iskander was banned from the property of the Glendale City Church after asking a question that revealed that GCC had installed an openly gay elder despite promises that their pastor, Todd Leonard, had made to the conference. She was censured and driven out of the Vallejo Drive Church (also in Glendale) after writing articles that drew attention to Pastor Mike Kim's increasingly pro-homosexual policies (the last of these articles was about church music and gay activism).

When the eminently well qualified Adventist physician, Dr. Eric Walsh, was forced out of his job as Director of Public Health for the City of Pasadena, it was because of sermons touching on homosexual conduct, things he said during that “one hour.” (To add insult to injury, the Seventh-day Adventist Church distanced itself from Walsh in his time of trouble.) As it turned out, he wasn't free to speak his mind on homosexuality even during that one hour when we're supposed to have freedom of religion, or, as President Obama has ominously taken to calling it “freedom of worship”--further underscoring that's its only about that one hour.

The most frightening part of the Indiana story is how quickly Governor Pence and his counterpart in Arkansas, Governor Asa Hutchinson, caved to unreasonable demands that the RFRA be amended to make clear that it did not create a defense to anyone in the position of the Kleins, the Huguenins, or Ms. Stutzman. The gay activists and their fellow travelers have decisively won the culture wars, they are currently shooting the other side's wounded, and our elected officials, even the supposedly “conservative” ones, will not lift a finger to help. It is now clear that a homosexual's right to never encounter a frown of disapproval trumps everyone else's religious freedom. In the days ahead, what else will the baying mob elevate above religious freedom?