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June 01, 2016

Where Right Meets Privilege

The “religious liberty” movement, best exemplified by various state’s Religious Freedom Restoration Acts (RFRAs) in recent months, has a history dating back formally several decades and informally back to the founding of the country and is preparing to change and adapt once more.

An appeal to “religious freedom” in a Constitutional setting does not appear much before the 1960s. To put it bluntly, up until the time of the Civil Rights Movement, there was no need to have a Constitutionally-validated defense to openly and outwardly wielding religion to justify prejudice, because the American conception of “civil rights” in popular ethos or in jurisprudence had not yet evolved to a point of demanding it. The formal religious liberty movement appeared contemporaneously and not-so-coincidentally with the blossoming of formal civil rights law.

Courts applied the Free Exercise Clause sparingly prior to the 1960s.  

However during that time religion was used to justify keeping slavery, denying women suffrage, and remaining segregated

Rev. Richard Furman defended slavery on the grounds that “…the right of holding slaves is clearly established by the Holy Scriptures, both by precept and example.” And Jefferson Davis declared that “[Slavery] was established by decree of Almighty God…” An editorial in the New York Herald in 1850 indicated that the abolitionist and suffragist Lucretia Mott was seeking to “dispense with Christianity and the Bible” in her efforts to abolish slavery and secure woman’s suffrage.The list goes on.

The narrow view of the Free Exercise Clause changed in the 1963 decision of Sherbert v. Verner, 374 U.S. 398. Sherbert granted strict scrutiny review to laws infringing on the exercise of religion. Throughout the 1960s, this interpretation prevailed. But as the 1970s and 1980s wore on, the Court began applying a more diluted form of strict scrutiny or not applying the test at all. Then, in 1990, Justice Scalia, writing for the majority in Employment Division v. Smith, 494 U.S. 872 (ending the “compelling interest” test in favor of one that only applied strict scrutiny where a law singled out a particular religion), suggested that to give religious liberty the benefit of strict scrutiny was “courting anarchy” by creating “a system in which each conscience is a law unto itself.”

The decision was not well received by either the right or the left, and thus the federal RFRA was born of bipartisan support shortly thereafter. Democrats, concerned over the rights of minority religious groups, joined Republicans to pass the bill almost unanimously in both houses of Congress.  Yet, that passage was held up for two years, interestingly, by anti-abortion groups that were worried that a religious right to an abortion might be claimed by the pro-choice movement. Thus, the final version that got passed in 1993 was ambiguous, even citing to different version of strict scrutiny within its four corners.

Less than five years later, the applicability of the federal RFRA in state and local spheres was struck down by City of Boerne v. Flores, 521 U.S. 507 (1997) (holding that RFRA extended into the domain of state sovereignty).

Congress attempted to resurrect the law as the Religious Liberty Protection Act (RLPA) through the hooks of the spending and commerce clauses by tying in federal dollars, but by this point the LGBT rights movement had grown and eroded Democrat support. The RLPA ultimately failed.

After that, a patchwork of states enacted or amended state RFRAs, but claims under these laws were infrequently brought and even less frequently victorious. Many of the current state RFRAs were loosely modeled after the federal version and after fifteen years of haphazard application and the development of further case law in LGBT rights, state RFRAs as they currently exist are a legal mire of uncertainty.

And while there is a recent resurgence of interest in state RFRAs, changes in public opinion, a strong LGBT civil rights infrastructure, and the general reluctance of the courts to apply strict scrutiny in these cases, even in the wake of a reinvigorated federal RFRA via the Hobby Lobby decision, can make these laws politically (and economically) costly.

The current of the religious liberty movement is flowing elsewhere: the First Amendment Defense Act (FADA).

The rhetoric being employed in support of FADA is exactly that of the religious liberty movement in favor of the RFRA or RLPA.

A bill summary, prepared by the Congressional Research Service (CRS), explains that the bill:

Prohibits the federal government from taking discriminatory action against a person on the basis that such person believes or acts in accordance with a religious belief or moral conviction that: (1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage.

It then goes on to describe discriminatory action, primarily having to do with changes to federal benefits or status, such as altering tax status or withholding government contracts or grants.

A hearing on FADA was held on July 12, 2016. At the hearing, Rep. Mark Meadows (R-NC) remarked that the intent of the bill was “to stop discrimination.”

James Obergefell, the plaintiff in last year’s landmark marriage equality ruling, also gave a statement for the hearing:

Religious liberty is a core American value. Everyone in this country is free to believe (or not) and to live out their faith as they see fit, provided that they do not do so in a way that harms other people. As I see it, this legislation turns this value on its head by permitting discrimination and harm under the guise of religious liberty.

How can a law stand as a protection against discrimination for some and an endorsement of discrimination for others?    

The answer may lie in of one  of the earliest opinions concerning the freedom of religion, that of West Virginia v. Barnette wherein the Supreme Court said:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizen to confess by word of act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.    

 A thoughtful evaluation, in the context of the social climate and the case law, evinces the motivation of the religious liberty movement: a portion of this country has become deeply offended that what they consider immoral is to be considered legal nonetheless, because they are accustomed to being the prescribers of the orthodox.

Anyone is welcome to seek their beliefs where they may find them, including in their religion, but they are not welcome to prescribe them to others, particularly to their detriment.

What has been orthodox in this country has been prescribed for a great many decades by a very limited few. Much of the domestic struggle of this country centers on overturning such prescriptions.

Decisions like Obergefell do little more than constitutionally affirm the removal of a prescription of orthodoxy that was already in place and should not have been so. “Orthodox” is nothing more than a close cousin to “traditional,” a tagline of choice in the movement.

The religious liberty movement, then, is less about religious freedom and more about a struggle over the further delineation of the line, not between church and state as such but between morality and legality.

This author would argue that to seek to separate morality and legality, without condoning government intervention in matters of personal morality, is actually to protect religious freedom putting the scale back in balance with the great many who have non-orthodox beliefs.

That fixed star to which the Barnette Court gazes is no star at all, but rather a green light, blinking from across a harbor.

I encourage you to read a more in-depth discussion in the upcoming SOGI White Paper on RFRAs and the history and legality surrounding them.


Matt Mecoli is a Summer Associate at Sweeney & Sheehan, P.C. and JD student at Drexel University School of Law.