The Religious Freedom Restoration Act, you will recall, restored a rule of constitutional law that government may not penalize religion without proving that its doing so is the least restrictive means of achieving some supreme societal interest. The Supreme Court, on June 25, invalidated the RFRA.
The death of the Religious Freedom Restoration Act has not been universally mourned. Perhaps as important as assessing the results of the Supreme Court’s invalidation is finding out what RFRA’s critics see to celebrate in its expiry. Roughly, they express three different (and sometimes overlapping) views.
First are state attorneys general, along with numerous state administrative agency officials. The former had told the Supreme Court that RFRA was causing states unbearable financial costs. Prisoners, they said, were demanding special accommodations to their eccentric religious practices. Sometimes the accommodations were material in nature. Prison officials’ refusals to respond, so it was said, triggered the prisoners’ invoking of the RFRA—hence months or years of costly litigation at taxpayers’ expense. Less visible at the state level was the annoyance of some administrative officials, whose projects imposing secularist controls over religious agencies were threatened by the latter’s challenges based on RFRA.
Two considerations counter these criticisms. For one thing, the Supreme Court, in voiding the RFRA, cited not one instance from the past in which RFRA’s test had been found difficult to apply or had caused any substantial burden to any governmental body. Rather, the courts’ experiences with the test had resulted in excellent decisions for the common good, protecting religious freedom. But one more thought should give us pause: Even assuming that some governmental officials had found some expense and difficulty in having to measure up to RFRA’s “compelling state interest”—”least restrictive means” test, could that possibly justify the abandoning of so valuable a protection of religious freedom?
The second view, joyous that RFRA is dead, has appeared again and again over the past four centuries in the frettings of the mercantile class over the effect of religious controversies upon trade. Better, the merchants have felt, that there be one global religion or no religion at all than to have religious confrontations upsetting commerce. Do we not see this attitude at this very hour shown by “business conservatives” who hate the intrusion of right-to-lifers in politics? All manner of programs good for business, and for many conservative candidacies for office, may be put in jeopardy by the needless disturbances of religious moralists. And so advantage has been given to the voice of secularist moderation.
The third view is that of Professor Gerard V. Bradley, of Notre Dame Law School, estimable scholar and orthodox Catholic. Bradley does not deplore the decision terminating RFRA. As he argues in an article in Catholic Dossier (May/June, 1997), RFRA (and some major pre-1990 Supreme Court decisions favoring religious liberty) are all of a piece with “the moral autonomy which gave us abortion and is threatening us with gay marriage.” The RFRA view of religious liberty gives irreligion equal status with religion and thus subordinates real believers to a legal regime defined by as many choices as private notions may allow. It is the religiously motivated individual, not the worshipping community, that had imposed its free-spirit views on our constitutional law. And he notes that such free-spiritists as the ACLU, Norman Lear’s People for the American Way, and the American Humanist Association have been backers of RFRA. “Religious liberty,” concludes Bradley, is thus “the trump card of the emancipated self.”
The Supreme Court has indeed given recognition to the radical autonomy of the individual, most notably in the areas of abortion, public morality, and freedom of speech and press. But in the area of religion its recognition, before 1990, of that autonomy had been limited to cases in which there was proof that government was in fact threatening religious exercise and that it could demonstrate no supreme societal interest in its action. The Court’s rulings in cases upholding Free Exercise rights of the Amish, Seventh-day Adventists, and Jehovah’s Witnesses were not victories merely for religiously motivated individuals but for churches, religious communities, and, by extension, other religious persons and communities. But Professor Bradley’s concern that in the area of religion, “all value-laden choices” were protected under the RFRA is certainly near the mark. That, however, was due not to the requirements of the RFRA, but to the fact that, from the 1960s forward, the definition of religion in the Constitution was broadened by the Supreme Court to include, expressly, Secular Humanism, Taoism, Buddhism, and Ethical Culture (initial caps by the Court). In the Draft Law case of United States v. Seeger, the Court accepted Paul Tillich’s definition of religion as being a matter of “ultimate concern to the individual, occupying in his life a place parallel to that filled by God” in the lives of other believers. In the eyes of the Court, theistic religion is but one among a wide variety of religions, including animal sacrifice and various New Age cults.
I am not disturbed that RFRA has been supported by the ACLU and similar groups. When I attended the early meetings of the coalition that drafted RFRA, I noticed their presence with some unease. My concern increased when I noted that abortion-rights advocates would claim that their religious liberty had been offended by government restrictions on abortion. The appearance of the Religious Coalition for Abortion Rights (embracing most mainline religious bodies) caused me to express my concern at length in these pages (June 1992). But I was thereafter to see that the predominant voices in favor of RFRA were such sturdy pro-life groups as the National Association of Evangelicals, Lutheran Church Missouri Synod, and the USCC. Above all, the text of RFRA that finally became law was reasonable in terms and invaluable in effect. I did not disdain RFRA, but approved it, because it could be invoked to protect such inconsiderable groups as the Reformed Mennonite Church or Hasidic Jews in Orange County, New York.
Among the critics of RFRA, and of the pre-1990 Supreme Court decisions it reflected, are those who say that the recognition these gave to Free Exercise rights was merely “the carving out of exemptions” from overall public policy. But do we speak of freedom of speech as some sort of exemption? To say that judicial recognition of religious exercise in a particular case is the creating of an exemption is really to say that all power is in the state and that religious liberty is not a right but a mere gratuity. RFRA rightly contradicted that.
The bottom line on RFRA for me is that I saw its test, personally, in court after court, give indispensable protection to sincere believers faced by the power, prestige, and legal resources of the secularist state. That protection is now withdrawn.