Many of our readers have been intensely and rightly concerned about threatening turns in the Supreme Court’s already monumentally confused rulings on religious freedom. Things came to a head with the April 1990 decision in the case of Employment Division v. Smith, otherwise known as “the peyote case.” It will be recalled that the Court denied the claim that an Oregon law against the use of peyote violates the religious freedom of members of the Native American Church, in which peyote is part of a sacramental rite. People of good will and clear thought can disagree on whether the Court’s decision about the Oregon law was right or wrong. That is not what attracted so much attention to Smith.
The alarming element in Smith was the reasoning advanced by Justice Antonin Scalia in his opinion for the majority. In that opinion, Scalia seemed to eliminate almost entirely the practical significance of the “free exercise” provision of the First Amendment. For a long time, the Court bad followed the doctrine that citizens could claim an exemption from laws that violated their religious freedom, unless the government could demonstrate that there was a “compelling state interest” in overriding such a claim. In addition, the government had to show that it was applying such laws by “the least restrictive means.”
Friends of religious freedom thought that, in actual practice, the Court was all too inclined to give the government the benefit of the doubt when laws came into conflict with free exercise claims. But at least there were some theoretical checks on state interference with the free exercise of religion. The majority opinion in Smith seemed to toss those checks out the judicial window. Scalia suggested that there was no constitutional right to a religious exemption from laws of general applicability, and if those laws clashed with religious duty, aggrieved parties could go to the legislature to get protection. He casually, and many thought callously, allowed that minority or unpopular religious claims would likely be out of luck, but that’s the price we pay for democracy. Not surprisingly, the radical doctrine of Smith set off a powerful alarm in the worlds of religious and legal leadership.
Very quickly, a remarkably broad coalition was put together in order to seek a remedy for Smith’s evisceration of free exercise. The remedy proposed was the Religious Freedom Restoration Act (RFRA). It was backed by numerous groups, ranging from the American Civil Liberties Union to the National Association of Evangelicals. A number of articles and commentaries supporting RFRA have appeared in the pages of this journal. We still believe that something like RFRA is necessary. Appropriately amended, RFRA may be the thing that will do the job. But developments in recent months have made it clear that RFRA in its present form is seriously flawed.
From the start, the legal office of the United States Catholic Conference (USCC) raised questions about RFRA and held back from joining the coalition that was pushing it. Without the support of the USCC, the chances of passing the act in Congress are considerably diminished. At first, those who favored RFRA complained that the USCC was indulging in hypothetical, even fanciful, fears about its possible consequences. The position of the USCC has become more plausible, however, as it has become evident that the coalition is unwilling or unable to address the concerns raised by the Catholic Conference. Moreover, some members of the coalition have made it clear beyond doubt that they intend to use RFRA in precisely the ways that the USCC fears that it might be used.
Among the most pressing concerns are those having to do with abortion, tax exemption, and the participation of religious groups in government programs. It is possible that people could claim a “right to abortion” as part of their right to the free exercise of religion. That is, they would assert that it is their religious duty to abort an unborn child. This is not simply a hypothetical possibility. That claim has been made in federal courts before, and has not been decisively turned back. Most tellingly, some pro-abortion groups in the RFRA coalition have explicitly said that they intend to litigate under RFRA in order to secure “abortion rights” as a matter of religious freedom.
With respect to tax exemption and programmatic cooperation between church and state, the Religious Freedom Restoration Act in its present form could turn out to be the Religious Freedom Restriction Act. Third parties have in the past and could with renewed force in the future claim that religious tax exemption is a “government expenditure” that violates their religious freedom by forcing them to support religion against their will. On similar grounds, litigants could challenge the participation of religious groups in government-funded programs related to education, child care, and a wide range of social services. Again, this is not simply a hypothetical possibility. Such challenges have been made in the past and are being made now in courts across the country. Most ominously, such challenges are championed by some of the coalition members who are most enthusiastic about RFRA.
There was something suspicious from the start about a coalition that included both the ACLU and the National Association of Evangelicals (NAE). The views of these organizations on a wide range of free exercise questions could hardly be more diametrically opposed. The question arose. Who is using whom? It is in the nature of coalition building that habitual opponents can find overlapping areas of common interest. That, we hoped, was the case with the coalition that backs RFRA. But the ACLU and like-minded members of the coalition have now blown their cover, making clear that their purpose in supporting the act is to create a legal situation that would be even more intolerable than the Smith decision that it is intended to remedy.
The United States Catholic Conference has posed some hard and clear questions to the coalition. If the coalition is built on an amalgam of such contradictory motivations that it cannot give a persuasive answer to those questions, it would, in our judgment, be dangerous in the extreme to go ahead with the Religious Freedom Restoration Act. With respect to the protection of the unborn, religious tax exemption, and the participation of religious groups in public programs, the stakes are altogether too high to enact a statute of such uncertain consequence.
So what is to be done? Smith is in urgent need of remedy. There are those who say that the Court itself will provide a remedy, that Smith was an aberration, that the Scalia opinion was needlessly and perhaps inadvertently broad, that the majority went along only because of the public policy concern about drug use. That is an interesting set of ideas, but religious freedom is far too important to rely on such conjecture. We hope the Court will correct itself, and there are a number of cases before it in this term that could provide opportunity for corrective action.
Meanwhile, however, there is need for a legislative remedy that would provide maximum legal protection for the free exercise of religion. That is what the Religious Freedom Restoration Act was intended to do. Amendments have been proposed that would help preclude the possibly baneful effects of the present bill. If accepting those amendments would mean the departure of some members of the existing jerry-built coalition, so be it. Those who truly care about the vitality of religion in American public life would have much more confidence in an RFRA that is backed by a coalition of the proven friends of religious freedom.