Conservatives Declare War On Religious Freedom
By Michael P. Farris
The conservative bloc on the Supreme Court (with the heroic exception of Sandra Day O’Connor) has voted to eradicate the traditional protections of free exercise of religion. The justices conservative Christians helped to put into office have pillaged and burned our most cherished constitutional freedom. The Court’s decision in Employment Division, Oregon Department of Human Resources v. Smith, has done to religious freedom what Roe v. Wade did to human life.
Smith II involved facts which are not likely to arouse sympathy among born-again Christians. (This case was previously before the Supreme Court. The first ruling was inconsequential; the 1990 decision is referred to as Smith II.) Two state-employed drug counselors were fired by the State of Oregon for illegally using the drug “peyote” as part of a North American Indian religious ritual. The counselors challenged the constitutionality of their firing in an unemployment compensation appellate procedure.
Every Supreme Court case involves a “decision” which determines who won and lost. The precedent from the case comes from the reasoning the Court gives for reaching its decision. Usually the decision is not nearly as important as the precedent.
The decision in Smith is unsurprising. No one expected the Court to rule in favor of drug-taking by drug counselors even for religious reasons, but the precedent coming from this case is the most serious eradication of religious liberty in the history of the Republic.
The majority announced this new rule of constitutional law:
[T]he right of free exercise does not relieve an individual of the obligation to comply with a “valid and neutral law of general applicability on the ground that the law proscribed (or prescribes) conduct that his religion prescribes (or proscribes).“
A few practical examples of how this new rule will work are in order. If a church believes as a matter of doctrine that only men should be employed as clergy (all Catholic and fundamental churches and most evangelical churches hold this view), the church may now be sued under a law prohibiting sex discrimination in employment if a woman is refused a job on that basis. I once helped an assistant warden in a federal penitentiary who was required to sign orders authorizing women prisoners to obtain abortions (the guards had gotten them pregnant). He refused based on his religious convictions against personal involvement in abortion. Under this rule, he no longer could claim a constitutionally-based religious exemption from the general rule requiring his participation in abortion. Public schools may now mandate sex education courses for all students. Religious exemptions will not be permitted.
In fact, the Supreme Court twice cited with approval the old ruling of Minersville School District v. Gobitis. This ruling approved a decision to expel a Jehovah’s Witness student from the public school for refusing to participate in the Pledge of Allegiance. Of course, Minersville was quickly reversed by West Virginia v. Barnett, 319 U.S. 624 (1943). The specter of coercion of conscience has been exhumed from a 47-year-old grave. All Americans from all walks of life and from all religious groups can now be coerced to abandon their religious beliefs and bow the knee instead to any trivial government rule, as long as the rule is generally applied.
Those who might have believed that Smith II would only be applied to drug-smoking Indians were proven to be in error when only a week later the Supreme Court vacated an excellent decision of the Minnesota Supreme Court involving the right of the Amish to maintain their religiously-motivated lifestyle in the face of a petty government rule requiring a certain type of reflective device on their buggies. All people from all faiths have lost their religious freedom.
Justice O’Connor correctly noted that “the Court holds that where the law is a generally applicable criminal prohibition our usual free exercise jurisprudence does not even apply.” She concurred in the result, but strongly dissented from the Court’s precedent-breaking denial of the principles of religious freedom.
The Supreme Court’s usual free exercise jurisprudence involved a four-step process. First, the Court evaluated the sincerity of a person’s beliefs. This test rarely produced a contested issue. Second, the Court determined whether a person’s beliefs were burdened by the regulation. This involved a determination of whether there was a genuine clash between the state law or practice and the exercise of one’s religious beliefs. Even if a person could demonstrate that his actions were based upon a sincere belief that had not been burdened by the state’s action, that was not the end of the matter. There was a further inquiry mandated by the Court’s prior decisions. The third step required the state to justify its law or practice by proving that the government’s refusal to grant a religious exemption was necessary to advance a compelling state interest. This step required the government to show that its interest was of the highest possible order. The fourth step required the government to demonstrate that there were no less restrictive alternatives available which would also meet the government’s interests while protecting the religious liberty of the claimant.
Free exercise cases almost never produce a decision that a law is unconstitutional on its face (that is, unconstitutional under all circumstances). Rather, such cases almost always involve the creation of a religious exemption. We have come to expect that religious freedom will often result in decisions which allow people to be free from a generally valid law, because we are normally unwilling to coerce a person to obey man rather than God.
The Court’s traditional free exercise test has led to several decisions where people were coerced to obey man rather than God, because these cases involve the rare circumstances where the government’s interest was simply too important to sacrifice and where there were no other alternatives.
But the usual rule of constitutional jurisprudence has been that an individual’s right to freedom of religion is presumptively more weighty than the government’s right to regulate conduct. Petty rules of government simply had to give way to the higher value of individual religious freedom, and even the weighty rules of government had to bend when there were alternatives available.
These traditional rules of free exercise jurisprudence offered the courts an opportunity to strike an appropriate balance between the demands of government and the ideals of religious freedom. But now these traditional rules of constitutional liberty have been trashed by a bloc of conservative justices on the United States Supreme Court.
Conservative Christians have been incredulous to learn that it was Justice Antonin Scalia, a movement hero, who authored the opinion in Smith II. Scalia was joined by Justices Rehnquist, Kennedy, White, and Stevens. With the exception of Stevens, these are justices who have been honored and revered by conservative Christian political activists. Justice O’Connor voted to protect religious freedom as did Justices Blackmun, Marshall, and Brennan. These three liberals also voted to apply the protections specifically in favor of the Indian drug counselors. O’Connor disagreed with the result reached by the liberal bloc, but all four of these Justices agreed to employ the same “set of scales” to balance the competing claims of the Indians and the government. It is possible to employ the same balancing test and reach different conclusions; that is the routine of constitutional law. But it is quite another thing to announce publicly that no longer will a balancing test be necessary—the government always wins under the majority view.
The prospect of influencing appointments to the Supreme Court was one of the principal attractions of conservative Christians to the Reagan bandwagon in 1980. But the very Justices our votes helped install, Scalia and Kennedy, and the Justice our votes helped to elevate to the position of Chief Justice, Rehnquist, have proven themselves to be our worst enemies. Only Justice O’Connor, the Justice opposed by most movement Christians at the time of her nomination, has proven herself to be a true hero.
How did this happen to us? Why did our friends turn their backs on us and eradicate our most cherished constitutional freedom?
Many leaders in Christian political groups have simply assumed that these Justices, as well as the ill-fated Robert Bork, are our friends. To those of us who value religious freedom, these types of conservatives—economic conservatives—have never been our friends.
For further clarification, an 7ldquo;economic conservative” is a person whose conservatism stems from their views of money. To them, whatever advances a monetary objective is good. Oftentimes this leads them to seek state controls over various individual liberties. On the other hand, Christian conservatives are conservatives on economic issues, but money is not their god. Furthermore the Christian conservative, in order to be true to biblical principles, will avoid state controls.
While the conservative Christian political leaders have been leading the cheers for the confirmation of these justices, there have been a small number of people who have attempted to sound the alarm, warning Christian activists to beware of economic conservatives. The principal voice of alarm has been William Bentley Ball, the dean of religious freedom litigators. Bill Ball has unsuccessfully tried to convince conservative Christian leaders that Rehnquist, Scalia, Bork & Company are bad news for religious freedom. I have also tried to sound the alarm to home school audiences. Rehnquist was the only dissenting Justice in the seminal religious freedom case of Thomas v. Review Board, 450 U.S. 707 (1981). Now the anti-religious freedom view of Rehnquist in Thomas has become the law of the land.
In a Washington Post column of April 22, 1990, conservative columnist George Will gave his hearty endorsement of the majority opinion in Smith II. In fact, he went further, scolding the Court for failing to forthrightly reverse Wisconsin v. Yoder, 406 U.S. 205 (1972). Will favors the coercion of the Amish children into public high schools. There is no room for a different drummer in Will’s lock-step march of majority rule.
Why do economic conservatives take this view? They serve a different god—capitalism. Will’s column makes this clear:
A central purpose of America’s political arrangements is the subordination of religion to the political order, meaning the primacy of democracy. The Founders, like Locke before them, wished to tame and domesticate religious passions of the sort that convulsed Europe. They aimed to do so not by establishing religion but by establishing a commercial republic—capitalism. They aimed to submerge people’s turbulent energies in self-interested pursuit of material comforts.
Hence religion is to be perfectly free as long as it is perfectly private—mere belief—but it must bend to the political will (law) as regards conduct.
Economic conservatives worship money, and they recognize the truth of the biblical admonition, “You cannot serve God and money.” These conservatives stand poised, ready to try for heresy any dissenter who fails to worship money. We are literally being coerced to bow down to a calf of gold.
Christians have no one but themselves to blame for this state of affairs. We have allowed ourselves to be seduced by smooth-talking political Romeos who have debauched us of our prize possession—religious liberty. We were seduced because we toyed with two false gods—money and power.
Economic conservatives had money, and we lusted after it. After all, we needed it to run our television ministries and political operations. They also had power. We lusted after that false god as well, being content to sit at the feet of the powerful in hopes of catching their favor.
It is time for Christian conservatives to wake up and see that we have been sold into slavery by the greed merchants. We need to clarify our values to see that the political landscape is quite different than we have imagined.
Economic conservatives are utterly utilitarian. Religious freedom produces too much diversity and too much potential for chaos, and, as we all know, chaos is bad for profitable retailing. The ACLU is our friend on most free exercise of religion issues. George Will and Justices Scalia and Rehnquist are our opponents. How is this possible? The ACLU believes that Self is God. They always favor the individual against the government. So, in a battle for the free exercise of religion, the liberals are our friends and the conservatives are our enemies.
When it comes to “law and order" issues, we have sided with economic conservatives. We respect law and order because it reflects the moral absolutes of God’s law. They favor law and order because it produces a stable society which is more conducive to economic profit. The ACLU favors the rights of criminals because of its consistent position favoring the individual versus the government.
I personally came to share many of the ACLU’s views on the procedural rights of criminals after defending 66 pastors evicted from a church prayer meeting in Louisville, Nebraska in 1983. This is consistent with my biblical view that God holds leaders to a higher standard of righteousness. The tyranny inherent in a rule which permits officials to violate the law or Constitution is dangerous to all our freedoms.
On the other hand, I believe that freedom is not absolute and that the Ten Commandments cannot be contravened in the name of individual liberty. Murder in the form of abortion and adultery in the form of pornography cannot be countenanced.
There is a need to reconsider our views of economics, religious freedom, moral law, and national defense in order to develop a consistent Christian political philosophy.
We need to become an independent political force in this country—not in the sense of starting a third party, but by refusing to be the “lap dog” of any other group who would attempt to use us selfishly to further their agendas.
Republican leaders have been callously indifferent to our views of late. Lee Atwater is doing everything he can to neutralize the Republican party on the issue of abortion. Now his friends in the Supreme Court have trounced religious liberty. The Republican views of economic and national defense are not sufficiently appealing to us to overcome our intense commitment to the two bottom line issues—religious liberty and human life. The Republicans are playing with fire on this issue. Economic conservatism is a view held by only a few elitist Republicans. They are “all hat and no cattle.” They need the involvement of people who regularly occupy our church pews to gain their political victories.
Democrats could have an open door to our hearts if they were to become champions of religious liberty. If they would also become champions of the smallest minority of all, the unborn, we would see a major shift in the political alignment of conservative Christians. Abortion is really an elitist concept. Abortion advances a policy that children should be carefully planned and born only to wealthy and white homes. This type of elitist thinking is more naturally found in the country club than the union hall.
We are not a moral majority. We must realize that we are a minority which must build coalitions to gain political victories. Sometimes we will side with civil libertarians; sometimes we will side with economic conservatives. We are owned by no one.
A plan for action. We need to salvage as much ground as possible to regain the ground we have lost in Smith II. We must work to replace the Justices on the Supreme Court with those friendly to religious freedom. But as we have learned from the pro-life issue that is a long and arduous task.
Our more immediate goal must be to secure the passage of the Religious Freedom Restoration Act. We need to place the traditional rules of First Amendment interpretation into a federal civil rights statute.
The majority in Smith II made it clear that it would find no fault in laws which permit religious exemptions; it was simply refusing to use the Constitution to create such exemptions. Therefore, we must immediately strike back and win back the territory lost before more precedents come down, making it increasingly difficult to win. If we have learned any lesson from the pro-life movement, it is that it is dangerous to let a society become accustomed to living a lifestyle predicated on a low value of human life. We cannot afford to let America become accustomed to a lifestyle with a low value on religious liberty.