For those who are committed to protecting the unborn and to preserving our traditional moral heritage, it is a mistake to oppose the Religious Freedom Restoration Act—a mistake of both principle and tactics. It is a mistake of principle because the Act seeks to restore the most precious of our constitutional rights, the right to carry out our duties to our Creator in accordance with the dictates of our many religious faiths. It is a mistake of tactics because the protections of the Act are of immediate practical importance to the traditional values movement.
When the Supreme Court decided Employment Division v. Smith in April 1990, the reaction among religious and civil liberties groups from left to right was swift and nearly unanimous: it was a disaster for religious liberty. After Smith, the government would be free to penalize, punish, or prevent the exercise of religion without serious constitutional scrutiny so long as the law applied to nonreligious entities as well. The government may tell religious schools what to teach so long as it tells secular schools the same thing. The government may require churches to hire gay clergy so long as it requires businesses to hire gay managers. The government may force a Jewish athlete to doff his yarmulke so long as other athletes are forced to take off their gimme caps.
This broad spectrum of groups asked Congress to enact a new statutory right identical to the constitutional free exercise right as it was before the Smith decision. The bill, called the Religious Freedom Restoration Act (RFRA), would protect the right of every person to practice his religion, without exception, unless the government can show that it bas a “compelling” reason to interfere (meaning that the reasons for the interference are extraordinarily important and cannot reasonably be attained in any other way). RFRA quickly won the endorsement of groups from the National Association of Evangelicals to the National Council of Churches, and from the Christian Legal Society to the ACLU.
Then some well-meaning lawyers on the conservative side of the spectrum became suspicious. How can a bill supported by People for the American Way, the ACLU, and the Religious Coalition for Abortion Rights be such a good thing? What's the catch?
A lawyer's job is to anticipate every possible contingency, and these were good lawyers. They suggested three ways in which RFRA might conceivably be interpreted (misinterpreted, really) to create bad consequences: (1) to give a church's opponents legal “standing” (a technical term meaning the right to sue) to challenge the church's tax-exempt status; (2) to allow taxpayers to claim their free exercise rights would be violated if a religiously affiliated organization receives government assistance under a secular program; and, most importantly, (3) to allow pro-abortion plaintiffs to claim a free exercise right to abortion if Roe v. Wade is overruled and states enact anti-abortion laws.
This has caused a number of persons and groups in the pro-life, pro-family movement to reconsider their position. Some (including the National Association of Evangelicals, the Southern Baptist Convention, Concerned Women for America, Agudath Israel, and many others) have thought about the matter and reaffirmed that RFRA should be enacted. Others (including the editors of First Things, the United States Catholic Conference, and the National Right to Life Committee) have concluded that RFRA should not be passed without amendments addressing these contingencies.
To demand amendments of this sort would guarantee that RFRA will not be passed. If a few special amendments are allowed (standing, funding, abortion), it becomes impossible to stave off demands for other special amendments. Almost every element in the coalition supporting RFRA opposes one or more applications of it. The common refrain is: “We're for religious liberty but . . .”—not in the prisons, not when it perpetuates sex discrimination, not in the military, not in the schools, not if it conflicts with animal rights, not if it interferes with land development in the West, and on and on. The only way to enact the principle of free exercise is to enact only the principle of free exercise, and to leave all disputes about applications of the principle to litigation, and to amending legislation if necessary.
So it is time for the pro-life, traditional values movement to ask two questions: How likely is it that these contingencies will come to pass if RFRA is enacted? What are the consequences if RFRA is not enacted?
The fears about standing and about funding of religious organizations are important questions of law, but both were satisfactorily resolved under the Supreme Court's traditional standing rules and there is no reason to think RFRA would reopen the issue. No one has standing to challenge another taxpayer's exemption, and there is no free exercise right to challenge governmental expenditures that do not coerce the believer's own religious practices. Litigation over funding to religious schools bas always been conducted under the Establishment Clause, which is unaffected by RFRA.
The issue of abortion is much more serious and important. The argument against RFRA is that if Roe is overruled and states reenact laws protecting fetal life, some women will claim that they have a free exercise right to obtain an abortion anyway. There are two reasons to doubt that this is a likely scenario. First, the Religious Coalition for Abortion Rights has been making free exercise arguments for abortion for twenty years, and these claims were routinely rejected even by pro-choice courts, even before Smith. The chance that the same claim would be accepted today, by courts that otherwise have abandoned their prochoice ideology, is unlikely. We have read the free exercise claims and arguments put forward by the prochoice lawyers in the current wave of litigation, and in our judgment, these claims would not be meritorious under even the most generous interpretation of free exercise rights under RFRA.
Second, and most decisively, RFRA expressly provides that a free exercise claim can be overridden by a “compelling governmental interest.” All of the justices who have indicated they are prepared to overrule Roe have stated that the government's interest in protecting unborn life is “compelling” from the point of conception. If that interest is compelling under the Constitution, it is equally compelling under RFRA, and laws prohibiting abortion would be enforceable.
Can we promise that no court would conceivably interpret RFRA to protect abortion rights? Obviously not. A desperate and frustrated pro-choice movement will try every theory it can devise, and RFRA will surely be among them. Just because pro-choice advocates make these arguments does not mean that courts (the same courts that are ready to overrule Roe) are likely to discover abortion rights under a statute that does not even mention abortion and that was enacted with the support of pro-life groups like the National Association of Evangelicals and the Mormon Church. At most, one might expect a rogue district court, frustrated over the reversal of Roe, to accept an RFRA abortion claim, only to be reversed on appeal.
We doubt that pro-life RFRA opponents think much more of the legal strength of these claims than we do. But their implicit attitude is: why take any risk at all? Why support RFRA if it creates any risk (however small) that it will perpetuate the killing of unborn children?
This is where we most vigorously disagree with RFRA's critics. Even putting aside our deep-seated commitment to the principle of religious liberty in general, we believe that enactment of RFRA is of particular importance—practical, nonspeculative, immediate, legal importance—to the pro-life, traditional values movement. Ask yourself: what institutions are most likely to find their religious principles in conflict with the doctrines of the modern secular state?
Even with regard to abortion, the most likely and important effect of RFRA is to protect pro-lifers from pro-abortion laws. What is to keep pro-abortion states from requiring hospitals—including Catholic and other religious hospitals that view abortion as the taking of human life—to perform abortions? What is to keep public hospitals from requiring all nurses and doctors to assist in abortions? What is to keep states from requiring medical students to learn to perform abortions as a condition to becoming licensed to practice medicine, from requiring medical schools to offer training in abortion, or from requiring public employees to subsidize abortion through health insurance? Already, federal regulations declare the failure of a college clinic to provide abortions or abortion referrals as a form of sex discrimination. In all these cases, RFRA would provide a legal shield against the power of pro-abortion governments.
Without RFRA, the cumulative effect of such proabortion regulation may be to close down pro-life medical facilities in some states, or to prevent prolife medical personnel from practicing in obstetrics and gynecology. If pro-life nurses and doctors are driven from the field or deterred from entering, a woman deciding whether to abort is unlikely to encounter informed professionals who think her decision presents a moral issue. The resulting hazards to fetal life are far more serious than any risks associated with RFRA.
But the importance of RFRA to the government goes far beyond the question of conscientious opposition to abortion. Consider the following examples, drawn from actual events.
Parents increasingly find themselves at odds with the philosophy espoused in the public schools. Some challenge specific parts of the curriculum (mandatory AIDS education, New York City's distribution of condoms to schoolchildren without the knowledge or consent of the parents, textbooks that propagate anti-Christian doctrines, gym-class dress requirements at odds with the modest dress required of Hindu, Muslim, and other children, “values clarification” classes that teach that there is no objective source of right and wrong, and so forth). Some parents go the further step of home schooling. In all these controversies the parents meet intense opposition from school authorities. They used to be able to invoke the protection of the Free Exercise Clause. Now they need RFRA.
There are rapidly growing communities in Southern California and elsewhere that have blocked construction of churches because they don't like the traffic and the noise. Churches have been forced to limit their religious ministries to activities approved by the city council or zoning board. There can be no more direct interference with the spread of the gospel and the mission of the church. But after Smith churches are at the mercy of local bureaucracies. RFRA would restore their constitutional rights.
Under ordinances forbidding discrimination on the basis of sexual orientation, churches have been taken to court for refusing to hire a homosexual as church organist or as teacher in the church school, ministries to the poor have lost their funding when they refused to tolerate homosexual behavior within their programs, and a Jesuit university was required to give recognition and support to a gay rights group. After Smith, these laws will likely be upheld. RFRA would help.
State accrediting agencies set standards for private schools, even those operated by churches. In a number of states, these agencies are dominated by teacher unions and public school advocates who have made it virtually impossible for some religions to operate schools in accordance with their religious principles. In the past, schools in some states with particularly onerous requirements have won protection through the Free Exercise Clause. After Smith, they need RFRA.
It is illegal under state and federal law for employers to discriminate on the basis of sex. If Smith is taken literally, these laws apply to churches, even when they are hiring priests or clergy It is only a matter of time before a disgruntled would-be female priest or minister will file a lawsuit. A leading feminist legal scholar has called for the revocation of tax-exempt status for churches with an all-male clergy. These pressures will only increase in the future. RFRA would help.
The prime function of the Free Exercise Clause is to enable religious communities to preserve their way of life in the face of hostile state power. After Smith, the protection is all but gone. Churches and believers can be forced to conform to the secular dictates of zoning boards, civil rights bureaucracies, educational agencies, city councils, tax collectors, social welfare bureaucracies, and every other form of government authority. Powerful interest groups in many places, especially large cities, are often antagonistic to the traditional religious values of family, sexual self-control, objective morality, and individual responsibility. It is naive to expect principalities and powers to respect the integrity of the church, or to be restrained in their use of authority.
The arguments against RFRA are highly speculative and unlikely to come to pass. The consequences of failure to pass RFRA will be serious and immediate. They are real. They will become more serious as secular culture departs ever farther from traditional religious norms. RFRA presents a rare opportunity to protect what is most precious. Let's take it!
Because of the importance of RFRA, and because of the continuing debate over its potential implications, we will present a number of responses to this Declaration in our April issue.—The Editors
W. Cole Durham, Jr. is Professor of Law at Brigham Young University.
Edward McGlynn Gaffney is Dean of the Valparaiso University Law School.
Douglas Laycock holds the Alice McKean Young Regents Chair at the University of Texas Law School.
Michael W. McConnell is Professor of Law at the University of Chicago Law School.