Tuesday, March 31, 2015

America: Where We Deliberately Allow Freedoms to Be Abused

People burn American flags. That's despicable.

The Ku Klux Klan holds a meeting. Every time that happens, it makes our society weaker and darker.

William Randolph Hearst was able to use his newspaper empire to plunge our nation into the Spanish-American War. What an abuse of power!

This parade of horribles represents the price we pay for having a First Amendment. We all know that Freedom of Speech is something that people abuse. We all know that Freedom of Assembly is something that people abuse. We all know that Freedom of the Press is something that people abuse. We consistently say, however, that these are but a small price to pay in return for the liberties that these freedoms provide for us.

Strict Scrutiny

Acting consistently with that line of thinking, we have said that restrictions upon these freedoms must survive what the Supreme Court calls "strict scrutiny." Every content-based restriction upon speech and press must pass the strict scrutiny test (subject to the O'Brien test). It is difficult to come up with cases about Freedom of Assembly that do not also involve speech (as defined in Con-Law), but where the government restricts the assembly of adults, that law must survive an examination according to strict scrutiny. Freedom of petition has been challenged so infrequently that I only know of two significant cases involving this right. First Amendment freedoms get the protection of this "strict scrutiny" regime.

What is "strict scrutiny"? When the Supreme Court applies strict scrutiny to a right, it does not mean that people have an absolute, inviolable entitlement to that freedom. Rather, it means that the government may only restrict these rights when (a) the government is trying to advance some "compelling interest" that it has, (b) the government has "narrowly tailored" the law to advance that interest, and (c) the government could not possibly accomplish the important thing that it is trying to do in any other way that would be less burdensome upon First Amendment freedoms.

Under this "strict scrutiny" approach, we deliberately let people do offensive things (burn American flags, for example) that constitute an abuse of free speech rights because we'd rather err on the side of providing too much freedom than on the side of providing too little.

All of this was true for another First Amendment freedom—freedom of the free exercise of one's faith—until a 1990 Supreme Court case entitled Employment Division, Department of Human Resources of Oregon v Smith (or just Employment Division v Smith or Oregon v Smith).

Alfred Smith and Galen Black used peyote at a Native American ceremony and were subsequently fired for not passing a drug test. They applied for unemployment benefits and were denied. They took the State of Oregon to court, claiming that the state could not deny unemployment benefits to them for something that they did in the furtherance of their shared religious faith.

The Court, caught up in the war on drugs, didn't want to cut off Oregon's drug laws at the knees, so instead they cut off at the knees the Free Exercise Clause of the First Amendment. Departing from the pattern established in a much earlier case, Sherbert v Verner, the Supreme Court ruled that Free Exercise cases would no longer enjoy a "strict scrutiny" level of protection.


With regard to Freedom of Speech, our nation has adopted an attitude along the lines of, "Well, we know that some bad people are going to do offensive things with their freedom of speech—bad things that will harm people and diminish our society—but we're willing to suffer those harms and indignities in order to enjoy the greater good of the Freedom of Speech that our Constitution provides to us."

With regard to Freedom of Religion, our nation is rapidly adopting an attitude along the lines of, "Well, we can't have full religious freedom in this country, because if we give that much freedom, a bad person somewhere will use that freedom of religion to do something offensive, and we have to prevent those few abuses at all costs."

Why the dichotomy? Could it be that an alarmingly growing number of our fellow citizens actually do not support the idea of religious liberty?


Religious conservatives support religious liberty pretty consistently. Religious and irreligious liberals tend to support it when it lines up with one of their favored causes and deny it when it becomes inconvenient to their other "progressive" goals. So, in the 1990s when suppression of religious free exercise was resulting in stronger enforcement of drug laws, liberals (rightly, with the support of religious conservatives) put together the Religious Freedom Restoration Act of 1993. The purpose of this act was simply to undo the effects of Employment Division v Smith and to restore the "strict scrutiny" standard of the First Amendment.

The Supreme Court responded in the 1997 case City of Boerne v Flores by overturning RFRA as it applies to state laws. RFRA was still valid with regard to federal laws, but as a result of Boerne v Flores, states could suppress people's free exercise of their faith without having to survive strict scrutiny.

Congress achieved a partial remedy by passing the Religious Land Use and Institutionalized Persons Act of 2000. After Boerne v Flores, however, a full return to strict-scrutiny protection for religious free exercise was only possible if the states themselves should pass state-level RFRAs of their own. RLUIPA passed with unanimous consent (you didn't know Congress could do such a thing, did you?), because at this point, liberals and religious conservatives were still on the same page.

That political situation changed with the 2008 case in New Mexico, Elane Photography v Willock. No longer were RFRAs about drug laws; now they were about homosexuality. Suddenly liberals didn't like RFRAs any more.

New Mexico ruled (and the Supreme Court refused in 2014 to hear an appeal) that although New Mexico's RFRA had successfully reinstated strict scrutiny for cases involving the government, individuals could suppress the religious free exercise of other individuals without having to meet the strict-scrutiny standard.

Then came Burwell v Hobby Lobby, where once again religious liberty came into conflict not with a conservative cause (drug laws) but a liberal one (everybody have sex with everything, please). First Amendment freedoms apply to people, proprietorships, partnerships, and corporations of all stripes. Every corporation has free-speech rights, for example. Before Employment Division v Smith, Every corporation also had free-religious-exercise rights. In the Hobby Lobby case, the Supreme Court ruled that only some closely-held corporations enjoy free-exercise rights.

And the American Left lost their minds, calling for the total repeal of every RFRA everywhere and the utter obliteration of any strict-scrutiny protections for religious liberty. Again, instead of the "some abuses are going to happen, but that's part of the price we pay for freedom" approach, the left adopted toward religious faith the "we must make the laws so strict that nobody anywhere can ever abuse their religious liberty, no matter how much freedom it takes away from the legitimate exercise of religious faith" approach.


The Indiana RFRA is written to try to return strict-scrutiny protection to all Americans in their free exercise of their religious faith. It is written (a) to embody all of the religious protections afforded by the Federal RFRA of 1993 while also (b) plugging the holes in RFRA that were exposed by Boerne v Flores and Elane Photography v Willock and (c) explicitly claiming for itself the benefits previously available under the First Amendment and made visible in the Hobby Lobby decision.

A Question for Liberals

First, an answer to the question that you've been asking. Yes, there will be a few people who will use the excuse of religious faith to try to justify discriminatory practices that are religiously insincere. Let me say, also, I think I'd probably bake the cake. In my personal opinion, baking a cake for someone's same-sex ceremony does not amount to endorsement of or participation in their ceremony. For those of my friends who are on the right, I have come to that conclusion as a result of what I think is sound, objective reasoning that I'll be happy to detail upon request. But for the moment, I'm addressing my friends on the left. So, people will do things under a RFRA that do not meet with my conservative approval. Yes, absolutely, far more things will happen that offend your liberal sensitivities.

My question to you is simply to ask why you believe that every single offense motivated by religion must be made illegal and harried out of the land, while flag burnings must be tolerated as part of the price that we pay for having a First Amendment that protects us all? Why not just let a few people follow the dictates of their faiths, even if their doing so offends you, and celebrate the fact that we live in a country that gives people the freedom to do these things?

Together let's embrace what has been the best contribution of liberal thinking to our nation—the idea that we ought to err on the side of the Bill of Rights when majority sensibilities come into conflict with minority convictions. Together let's stop this scary erosion of religious liberty in our nation before it goes too far.

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