Religious Freedom Restorationism

The U.S. Constitution guarantees the “free exercise of religion.” That’s a problem for progressives because ideological progressivism disdains organized religion. Clever progressives have thus deconstructed “freedom of religion” to a mere “freedom of worship.” Progressive Wisconsin Democrat Senator Tammy Baldwin put it best: “The first amendment says that in institutions of faith [] there is absolute power to [] observe deeply held religious beliefs. But I don’t think it extends far beyond that.”

The distinction between free worship and free exercise is profound. It comes into sharp focus whenever contemporary mores and religious doctrines point in opposite directions. If contemporary society can define morality, should the law even tolerate the behavior of those who follow contradictory moral codes? Freedom of worship provides no clear answer; the mere question offends free exercise. The free exercise of religion emphatically includes the right to behave in accordance with faith-driven morality.

This progressive transformation of the Free Exercise Clause from a broad behavioral freedom to a narrow devotional freedom has always been toxic to faith communities. Under the progressive deconstruction, the Constitution allows the government to impose a rigid moral code regulating any aspect of human behavior — as long as it does not claim to do so in the name of a god. Thus deconstructed, the Free Exercise Clause leaves individual Americans free to worship the god of their choice; prayers to Jesus, Allah, Vishnu, Zeus, Thor, and the Flying Spaghetti Monster are equal in the eyes of the progressivism. To the faithful — that is, to anyone whose faith incorporates a moral code that differs from progressive morality in any way — such a Constitutional guarantee rings hollow.

As recently as 1990, pretty much everyone thought that the First Amendment guaranteed the right to live by a minority moral code. That year, however, the Supreme Court considered the case of Smith and Black, two members of a Native American Church who lost both their jobs and their unemployment benefits for ingesting sacramental hallucinogenic peyote — a controlled substance illegal in Oregon. The question before the Court was straightforward: does the Free Exercise Clause protect a person’s participation in a religious ceremony that violates a State’s general criminal laws?

Justice Scalia — no one’s idea of a progressive — concluded that it did not. While Oregon could have followed the lead of other states in creating a religious exemption to its drug laws, it was under no constitutional obligation to do so. The Free Exercise Clause, Scalia explained, prevents states from targeting religious practices, but when a religious practice coincidentally runs afoul of a generally applicable law, the constitution doesn’t exempt individuals of faith.

The Smith ruling shocked the conscience of the nation. Americans across the political spectrum saw it as the affront to free exercise that it was. Justice Blackmun — whose opinion in Roe v. Wade beatified him in the eyes of progressivism — penned a bold dissent: “This Court over the years painstakingly has developed a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion. Such a statute may stand only if the law in general, and the State’s refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means.”

Revulsion to the Smith decision was nearly universal. Two Democrats who would later become progressive leaders, Congressman Chuck Schumer and Senator Ted Kennedy, sponsored the Religious Freedom Restoration Act of 1993 (RFRA): A state law may infringe upon a religious practice only if it is the least restrictive means of furthering a compelling government interest. The House passed the bill in a unanimous voice vote. The Senate voted 97–3 in favor.

When President Clinton signed RFRA into law, he spoke for a nation united behind the classic American approach: “We all have a shared desire here to protect perhaps the most precious of all American liberties, religious freedom… Our Founders cared a lot about religion…They knew that there needed to be a space of freedom between Government and people of faith.” He continued: “Let us [] respect one another’s faiths, fight to the death to preserve the right of every American to practice whatever convictions he or she has, but bring our values back to the table of American discourse to heal our troubled land.” President Clinton’s emphasis on the right to practice religious convictions is telling. In 1993, everyone knew what the free exercise of religion meant.

Four years later, when the Supreme Court ruled that the federal government had overstepped its authority by imposing RFRA on the states, states began to adopt their own RFRAs. By 2014, to little or no fanfare, twenty states had enacted state-level RFRAs and the courts of eleven others had recognized similar protections.

Halfway through President Obama’s second term then, the right of the faithful to act in accordance with any minority moral code that did not impair a compelling government interest appeared to be a matter of overwhelming bipartisan consensus. Even a generally applicable law, enacted with no particular animus, could not trample an individual’s right to exercise his or her faith.

That apparent bipartisanship, however, was deceptive. The 2010 passage of Obamacare set the stage for a conflict between the religious rights dear to America and the abortion rights so central to progressivism. It mandated that employers provide their employees with comprehensive health insurance, then authorized the Department of Health and Human Services (HHS) to specify the details of that mandate. When the dust settled at HHS, Obamacare effectively required employers to provide their employees with free access to a full range of contraceptives, including some that function as abortifacients.

Christian employers, including the privately owned Hobby Lobby Stores, complained that Obamacare’s contraceptive requirement ran counter to their own religious views, effectively forcing them to participate in what they saw as the murder of innocent unborn children. In what should have been a textbook RFRA challenge, the Supreme Court assumed that the HHS regulation served a compelling government interest, determined that there were ways to meet that interest even if religious objectors were granted waivers, and exempted Hobby Lobby from the requirement.

Justice Ginsburg’s lengthy, withering dissent raised the technical objection that RFRA should apply only to individuals, not to corporations like Hobby Lobby. Her emphasis, however, was elsewhere: “Accommodations to religious beliefs or observances…must not significantly impinge on the interests of third parties.”

The irrelevance of Hobby Lobby’s corporate form to what really angered progressives became even clearer with the Obama team’s next target: nuns. Obamacare’s abortion rules gave progressives an opening to insist that the Little Sisters of the Poor enable the distribution of abortifacients. The nuns, good Catholics and all, objected on religious grounds. The Supreme Court agreed to hear the dispute. Justice Scalia’s death, however, left the Court evenly split, with four Justices willing to stand strong for religious liberty and four Justices joining the progressive war on the faithful. The Court punted on a technicality in 2016.

Between those two Supreme Court rulings, a far higher profile battle unfolded in the court of public opinion. In the spring of 2015, Indiana became the twenty-first state to enact a state-level RFRA. Opposition was instantaneous and ferocious. Governor Dan Malloy of Connecticut — one of the twenty states that had preceded Indiana in adopting a state RFRA — issued an Executive Order banning state-paid travel to Indiana.

Salesforce CEO Marc Benioff was perhaps the most prominent business leader to announce a boycott of the state, but he was hardly alone. Apple CEO Tim Cook took to the pages of the Washington Post to proclaim: “There’s something very dangerous happening in states across the country. A wave of legislation…would allow people to discriminate against their neighbors. Some…say individuals can cite their personal religious beliefs to refuse service to a customer or resist a state nondiscrimination law.” Cook thus became the spokesperson for every American content to attack RFRA without understanding it.

Given the near universal agreement that the prevention of discrimination is indeed a compelling government interest, it’s unclear how anyone could take Cook’s caricature of these laws seriously. Yet most progressives do — and Cook’s decision to expend his time, his energy, and his company’s reputation suggest that he himself believed it fully. In fact, while opponents of a particularly legalistic bent focused on some idiosyncratic language in the Indiana law, most of the negative commentary followed Cook’s lead in challenging the law’s underlying policy.

The source of progressive antipathy to RFRAwas clear: gay marriagewas still a matter of state law in 2015, and many states were moving far too slowly for the progressive sense of justice. Furthermore, in the years since gay weddings had become commonplace, a handful of Christianflorists, bakers, and photographers had declined work at gay weddings, citing religious grounds. Several of those declining such business found themselves facing civil rights charges and were eventually deemed abusers of human rights. Gone were the days in which supporters of gay marriage, acting in the finest live-and-let-live American tradition, proclaimed: “Don’t like gay marriage? Don’t get one.” As the national ethos shifted in their favor, the progressive rallying cry became: “Don’t like gay marriage? Burn in hell, you homophobe.” This shift is symptomatic of progressive thinking.

For centuries, Western legal systems had mistreated homosexuals. Some states maintained anti-sodomy laws on their books into the twenty-first century; the Supreme Court ruled them unconstitutional only in 2003. That decision was the final step in a series of Supreme Court cases dating back to the late 1960s recognizing that the Constitution protected individual rights concerning sexual behavior among consenting adults. It was a genuinely American set of rulings; the American idea combining individual freedom and personal responsibility should always have encompassed the sexual realm. The laws prohibiting homosexuality were always an affront to that idea. The long overdue end to that mistreatment allowed gay couples to live their lives as they saw fit anywhere in the United States. It did not impinge on Christians who chose to lead their own lives according to the tenets of their faith.

Such is not, however, the progressive way. Progressivism seeks to do to Americans of faith what anti-sodomy laws once did to gay Americans: Put them in the closet, forced to choose between leading secretive fulfilling lives as outlaws and living a lie as law-abiding citizens. If it succeeds, progressivism will have scored a major victory in its war against God.

The very notion that acting upon a religious conviction to avoid participation in an event or activity can violate someone else’s civil (or human) rights represented a watershed moment in American law, society, and culture. It marked a handover of the ball. All of a sudden, progressive LGBT rights were playing offense; those seeking to live a Christian life became a defensive minority. Those of a live-and-let-live bent found their sympathies whipsawed from one side to the other; in culture wars, libertarians always root for the defense.

While the concern that people might cite religious freedom as a pretext for discrimination is far too serious to dismiss out of hand, RFRA incorporates precisely that concern into its balancing test. In fact, shortly after the Supreme Court ruled that gay couples have a constitutional right to marry, Kim Davis, the elected County Clerk of Rowan County, Kentucky, announced that her office would no longer grant marriage licenses to anyone, citing her religious convictions. When removed from her position, she brought a RFRA claim — and lost. Progressives protestations to the contrary, RFRA jurisprudence is more than able to distinguish between suggesting that gay couples find alternative florists or bakers and requiring that all residents of a county seeking to wed cross county lines.

The progressive hysteria over RFRA — which peaked in 2015 in Indiana — was characteristically overwrought. The supposed parallels between bakers who refuse to craft gay wedding cakes and lunch counters that once refused to serve Black diners are intentionally misleading. There is a clear — and easy — distinction between businesses that hold themselves as open to the public and businesses that interview each potential client seeking a personalized, customized, product or service.

In a classic witch hunt intended to prove that Indiana’s Christians were hopelessly biased, anti-Christian reporters fanned across the state seeking a villain. They finally found one in Memories Pizza, a Christian mom-and-pop shop in rural northern Indiana whose wall signs bore inflammatory messages like: “Every day before we open the store, we gather and pray together. If there is something you would like us to pray for, just write it down and drop it in the box and we will pray for you.” That kind of thing is red meat to progressives.

The collective might of the progressive media descended upon this midwestern pizza parlor, demanding to know whether the proprietor would cater a gay wedding. She explained that, as a pizza parlor, no one had ever asked her to cater a wedding. She also explained that she would never deny service to anyone. When pressed on the hypothetical, however, she conceded that if asked to cater a gay wedding, she would have to decline.

Her answer should have satisfied everyone. When it came to serving individuals who entered the business seeking the same service provided to all paying customers, Memories Pizza was explicitly nondiscriminatory; its moral judgment mirrored that of mainstream society. When asked to participate in a specific event, the folks at Memories Pizza reserved the right to live in accordance with their own moral code. Far from satisfying those seeking blood, however, the answer was viewed as proof of bias.

Within days, venomous attacks from around the progressive Internet forced Memories Pizza to announce that it was closing. The story followed a script that John Stuart Mill had written in the nineteenth century. “[A] religious bigot, when charged with disregarding the religious feelings of others, has been known to retort that they disregard his feelings, by persisting in their abominable worship or creed.” As if on cue, RFRA’s opponents, following Tim Cook’s “I have great reverence for religious freedom,” explained that it is not they who disregard the religious feeling of certain Christians, but rather those Christianswho disregard their feelings by persisting in their abominable creed. Mill’s reply? “[T]here is no parity between the feeling of a person for his own opinion, and the feeling of another who is offended at his holding it; no more than between the desire of a thief to take a purse, and the desire of the right owner to keep it.”

Religious bigotry is dreadfully predictable. One of its deadliest and most predictable features arises whenever bigots insist that they’re merely defending themselves from some “abominable creed.” That claim forms the heart of every anti-Jewish conspiracy theory ever floated (and there have been plenty).

The progressive anti-Christian forces are clearly positioning themselves as defenders. The Battle of Indiana revealed both their defensive strategy and its absurdity. The CEO of Apple emerged as a spokesman for the downtrodden LGBT community, fighting for its survival in the face of an implacable Christian enemy. The proprietors of Memories Pizza emerged as that Christian face. As is invariably the case when religious bigots spin conspiracy theories and pivot to defense, the world becomes inverted. Memories Pizza is Goliath; Apple is David. Christians — and anyone who cares about the future of freedom in America — need to take note.

The immediate furor did not abate until Indiana acceded to the specific demands of its more legalistic critics by amending some of the linguistic differences between its own RFRA and the federal law. A crowdfunding campaign allowed Memories Pizza to reopen. But the Battle of Indiana moved the progressive war against RFRA to the front pages. Progressive media sources began putting the term “religious freedom” in scare quotes, insisting that the entire concept is merely a pretext for the right to discriminate. The ACLU announced that it no longer supported the federal RFRA for which it had campaigned in 1993. It was hardly alone in retreating from its longstanding enthusiastic support for the freedom of religion. Many progressives adopted the rationale that RFRA’s purpose had been to protect “minority faiths,” like that of Native Americans Smith and Black. The thought that it might also protect Christians proved deeply offensive.

The progressive attack on RFRA is an explicit, intentional attack on religious freedom. It seeks to remove a procedural safeguard that balances the critical liberal goal of religious freedom with the potentially competing and contradictory critical needs of a liberal society. No one who understands how the law functions, or the subtle balancing test that it incorporates, could reasonably believe that it would permit the litany of horrors that opponents have ascribed to it. No one can use RFRA to justify slavery, human sacrifice, segregation, honor killings, or religious executions; the prevention of these atrocities is indeed a compelling government interest.

Progressives have little interest in being reasonable when reason interferes with their idiosyncratic notions of justice. They see religious conviction as little more than an opinion due no particular deference. They believe that those citing religious concerns do it pretextually, in a callous attempt to exempt themselves from the broad obligations that define the compassionate American society. And they believe, above all, that any progressive moral judgment written into law must instantly displace any expression of minority morality — explicitly rejecting the critical liberal value of tolerance.

As per usual, the progressives are wrong on all counts. RFRA is a finely tuned bulwark against the imposition of a governing morality on minorities committed to traditional moral codes. Restorationists appreciate it as critical to the preservation of the classic American formulation: No establishment plus free exercise. It is precisely by enabling religious communities to evangelize in deed — demonstrating the power of their moral codes to promote healthier families, communities, businesses, and lives — that the American nation enriches itself.

* This is a contributed article by American Restoration Institute