Editorial: Religious Liberty: Luxury or Priceless Treasure? By Michael P. Farris
Some people claim to be personally pro-life. Others claim to be politically pro-life. I am both. My wife is expecting our eighth child. We take our pro-life views very seriously in our family. I have also worked for both the political and legal advancement of the pro-life cause.
Nonetheless, I firmly disagree with those pro-lifers who claim that the Religious Freedom Restoration Act has dangerous abortion implications.
Keep in mind that the arguments center on how the Supreme Court will interpret the Religious Freedom Restoration Act after the Court reverses Roe v. Wade. Today we have neither religious liberty nor protection of human life. The protection of religious liberty can be achieved in Congress; the protection of human life cannot be secured in the United States Congress. We have seen nearly twenty years pass since Roe was first pronounced, and we are not closer to obtaining congressional protection for human life than we were in 1973.
No law professor specializing in free exercise issues has given any credence to the legal challenge that there is a plausibly winnable argument that a woman could successfully raise a new right to abortion under RFRA after Roe has been reversed. Such a woman would first have to show that any restriction on abortion “burdens” the practice of her religion. Generally speaking, this means that she must show that her religion requires her to have an abortion. The only religion anyone knows about that ever requires a woman to have an abortion is Orthodox Judaism. Orthodox Jews are required to have an abortion if the mother's life is at stake. They are not permitted to have abortions under any other circumstances. No other known religion could appear to meet the burden barrier, and no new state law banning abortion is likely to prohibit abortions if the mother's life were at stake. Thus, even Orthodox Jews would not be in a position of needing to seek a legal haven for their special circumstances.
Even if an abortion claimant could leap over the “burden barrier,&rdquo that person would then face the compelling state interest test; that is, would the state be able to prove that its interest in protecting human life outweighs the woman's right to have an abortion.
This is the very question that lies at the heart of Roe v. Wade. The current majority on the Supreme Court does not appear ready to say, as I would say, that the unborn child has a right to life which is protected under the Fourteenth Amendment's Due Process Clause. Rather the Court appears to be ready to say that the decision to value unborn human life more highly than the right of the woman to choose abortion is in essence a political decision. If the Court reverses Roe, it will be precisely on the grounds Justice Scalia articulated in the Webster case—abortion is a question which belongs to the state legislatures, not the United States Supreme Court.
Given that legal position, it is extraordinarily improbable (read: fat chance) that the Court is going to say that it no longer wishes to substitute its judgment for that of state legislatures on the issue of abortion when raised under constitutional privacy cases and then turn around and agree to substitute its judgment for that of state legislatures when a claim is made under the Religious Freedom Restoration statute. The essence of the judgment to be made in both cases is the same: Will the Court accept the balancing of the woman's right and the child's right as made by the legislature or will the Court make its own judgment as to the appropriate balance?
The only reasonable conclusion is that once the Supreme Court has decided that the abortion decision lies in the legislature, it is going to let the decision remain there.
The leading proponent of the other position—the National Right to Life Committee—has no position on the issue of religious freedom and openly says so. Furthermore, evangelical pro-lifers are uniformly unconvinced that NRLC's arguments have any legal validity. Some have been wary of the political consequences of opposing NRLC, but none believe that the arguments have any legal merit.
I don't like living in a culture that has grown to accept abortion as a way of life, but I am even more afraid of living in a culture which accepts religious freedom as a second class constitutional right. Our failure to act to restore religious liberty today will make it increasingly difficult to ever reach this goal as society gets used to the limits on our religious liberty.
In one sense evangelical and fundamental Christians have the most to lose by the loss of our religious liberty. Since 1980 evangelical and fundamental Christians have been involved in 87 federal religious liberty cases involving a denial of the free exercise of religion. This is more than double the number of cases any other religious group has experienced and nearly four times the number of cases Catholics have been involved in.
Religious groups which are more out of step with the main stream of “politically correct” society are more likely to have religious freedom litigation. Unfortunately, Bible-believing Christians fall squarely in the category of being politically uncorrect.
We hear a lot about crime bills, tuition tax credits, child care programs, and a host of other important issues from Christian lobbying organizations. Perhaps these are important, but religious freedom is fundamental. Perhaps the leadership will remain silent on the Religious Freedom Restoration Act because of the abortion controversy. But I believe that when the average Bible-believing Christian hears the whole story he will rise up in arms and go directly to his or her Congressmen to urge the passage of this legislation.
We are not talking about anything less than the future of religious liberty in this country. The Supreme Court has said it is a “luxury.” This is no time for silence. It is a time for the grass roots to rise up and declare that religious liberty is not a luxury but is a priceless treasure. Your action to preserve that liberty today will determine whether there is freedom for the soul in the generations to come.