A Noble Compromise: Abortion and Religious Liberty

A crisis of unusual character is looming in the Congress. The crisis will see Jews pitted against Catholics, Catholics against evangelicals, evangelicals against evangelicals—and Unitarians, Muslims, American Humanists, and American Indian groups will also join the fray. The subject will be a bill presented by Congressman Stephen Solarz (D., N.Y.), who claims that religious liberty in this country is mortally threatened (indeed already part dead), and a counter-bill by Congressman Chris Smith (R., N.J.), which makes the same claim. Each bill aims at “restoring” our seemingly lost religious freedom. Smith, however, seeks the restoration in a way different from that of Solarz, and it is because of that difference that the interreligious conflict is stirring.

For decades the Supreme Court held that the First Amendment’s protection of the “free exercise” of religion meant that any law, regulation, or other form of governmental activity which was objected to on sincerely held religious grounds could not be enforced by the courts unless the government proved that its action was justified by a “compelling” governmental interest. Further, government would have to show that no less restrictive means was available to satisfy that interest. “Compelling” obviously describes an interest well out of the ordinary. The Supreme Court meant not just a public interest, but instead some supreme societal interest.

So in case after case, the Court had made it clear that if government chose to interfere with religion, it had to come into court like any other litigant and prove its “compelling” case. “Prove”—that is, produce evidence to justify its “compelling interest” claims, and be forced to the witness stand, to yield up subpoenaed documents, and otherwise respond when its claim of “compellingness” was challenged. That made good sense. In the present Bleak House of our courts nationally, litigation can be impoverishing; few religious groups or individuals can afford to enter into contests with the tax-funded legal staffs of government agencies.

On April 17, 1990, the Supreme Court ripped its “compelling state interest” test from the fabric of our religious liberty jurisprudence. The case, Employment Division v. Smith, involved a claim for unemployment compensation by native Americans who had been discharged for their sacramental use of peyote, an hallucinogenic drug. The heart of the decision came to this: any law or governmental action which is injurious to religion will be enforceable without proof of “compelling state interest,” provided that the law or action is “religiously neutral,” i.e., silent with respect to religion. Since every act of a legislature and every governmental regulation is presumably in the public interest, the showing of a mere “public interest” will suffice to sustain the imposition of “religiously neutral” governmental action. Thus, virtually anything majorities ordain through their legislatures—however injurious to religion—must be upheld by the courts. Jeremy Bentham would have approved.

It is astonishing that the Court, whether deliberately or negligently, missed the great promontory on the American religious liberty scene today: that it is precisely the “religiously neutral” law that most imperils religion. The expansion of the state in every area of national life—health, employment, welfare, education, civil rights, historic preservation, land use, to name but some—is accomplished by laws which never mention religion. Churches and religious ministries have been mortally threatened these past years by such purely secular laws as the National Labor Relations Act, the Internal Revenue Code, state child care regulations, compulsory education laws—all applied indiscriminately across the board to persons and institutions whether secular or religious. But the “compelling state interest” test had shielded sincerely religious endeavors against arbitrary application of such laws. Following Smith, decisions enforcing such laws have been flowing from the lower federal and state courts, which are no longer obligated to find a “compelling state interest” in governmental actions.

Religious groups throughout the country greeted Smith first with disbelief and dismay, then with anger. One initiative in reaction was that of a small, essentially liberal group, calling itself a “Coalition for the Free Exercise of Religion,” whose most prominent initial members were the American Civil Liberties Union, People for the American Way, and the American Jewish Congress. By summer 1990, they had proposed a bill, Congressman Solarz’s Religious Freedom Restoration Act (RFRA), aimed at undoing the Smith decision by requiring courts to reinstate the “compelling state interest” test. Solarz began a campaign to attach House sponsors to his bill, while the coalition campaigned to have all significant religious bodies to join it.

Among the major religious bodies which the Free Exercise Coalition sought to attach to itself were the U.S. Catholic Conference (USCC), the National Association of Evangelicals, the Southern Baptist Convention, and the Lutheran Church-Missouri Synod. It was in this effort to broaden RFRA support among advocates of religious liberty that a fissure appeared in the general anti-Smith sentiment, soon to become a chasm. The problem was abortion. National Right to Life, USCC and Missouri Synod envisioned the following scenario if RFRA were enacted and the “compelling state interest” test thus reinstated: (a) If the Supreme Court overrules Roe v. Wade or seriously guts it, state laws restricting abortion are certain to be widely challenged in test cases brought on religious grounds. Already in challenges to pro-life statutes of Guam, Utah, Louisiana, and Michigan, for example, pro-abortion women have claimed that their religion necessitates abortion. (b) The courts, if RFRA is enacted, will then require the states to prove that the abortion-restrictive laws are justified by a compelling state interest. (c) Based on their pro-abortion biases already widely displayed, and browbeaten by the feminist and liberal lobbies, many judges will find no compelling state interest in the abortion-restrictive laws and will strike them down.

National Right to Life, the USCC, and the Missouri Synod hence urged that the proposed law be amended to bar its being invoked by those who would challenge abortion-restrictive laws on religious grounds. Leaders of the Coalition, however, dismissed their fears as far-fetched in the extreme. Few people, the Coalition said, are going to come into court claiming that their religion requires or motivates them to have abortions. They further argued that the danger to religious liberty resulting from Smith is so great that it would be irresponsible for religious groups to inject the white-hot abortion issue into congressional deliberations. Finally, they said that the Constitution should be understood as protecting all religious manifestations, even those some may feel to be evil. By the fall of 1991, as discussion continued between the Coalition and the non-joining religious groups, the non-joiners were startled to find that a second coalition existed. It was called “Religious Coalition for Abortion Rights.”

This second coalition was intensively campaigning for the RFRA. Many of the same religious bodies which belonged to the Free Exercise Coalition simultaneously had membership in the Abortion Rights Coalition. National Right to Life, the USCC, and the Missouri Synod found this disconcerting. It caused them to distance themselves from the first coalition. Not so, four other unimpeachably pro-life bodies—the National Association of Evangelicals, Concerned Women for America, Christian Legal Society, and Christian Life Commission of the Southern Baptist Convention. Initially skeptical of RFRA, they gradually, one by one, joined the Free Exercise Coalition and are now giving RFRA vigorous support.

To these latter organizations (and to both coalitions) the non-joiners appear to be spoilers. Recent public statements by Free Exercise Coalition members focus on the USCC and National Right to Life (with its majority Catholic membership) as sabotaging the chances of all religious bodies in the nation to get, at last, congressional protection for religious liberty against the dire effects of Smith. These public statements, invariably failing to mention that the 2.7 million member Missouri Synod takes precisely the same position on RFRA as does the USCC, have an inevitable tendency to rekindle residual Protestant hostility toward the Catholic Church. Not far below the surface is the sentiment, “Is the Roman Catholic Church still uncommitted to religious freedom? Why won’t Catholics join with the rest of us in fighting for religious liberty?”

This uneasiness is not diminished by USCC’s now backing a different RFRA, Congressman Christ Smith’s House Resolution 4040. This, like the Solarz bill, calls for restoration of the “compelling state interest” test. But Smith’s RFRA provides that it may not be construed to authorize lawsuits challenging restriction on abortion, or anyone’s tax exemption, or use of government funds or properties. While this language about “authorizing” lawsuits is problematical, what it tries to say is apparently this: if anyone comes into court to challenge, on religious grounds, abortion-restrictive legislation, or someone’s tax exemption, or use of government funds or property, that person must be denied the benefits of the “compelling state interest” test. Especially because of an assumed specific Catholic interest in governmental aid to its institutions and activities and their tax-exempt status, the image of Congressman Smith’s bill as “legislation for Catholics” is strikingly accentuated.

By the time this article appears, a congressional hearing on the Solarz RFRA has just taken place. Solarz has now garnered at least 179 sponsors in the House. A companion bill in the Senate is likely. Smith’s bill has but a handful of sponsors, but these include the redoubtable Henry Hyde. Predictions vary as to whether Solarz’s front-running bill can be passed this session, and no one knows whether President Bush would support or veto it.

At a time when “conservative” (or better, “orthodox”) evangelicals and Catholics are finding common ground on so many moral issues of public significance, and when, as I had said some while ago in Crisis, there is an urgent need that they make common cause on these issues, it is unfortunate that divisions between them are growing on the matter of an RFRA. With treasured attachments to leaders in each camp, but representing no one but my presumptuous self, I suggest that the following be considered:

First, I would hope that the USCC and National Right to Life would attempt to persuade Congressman Smith to drop his bill’s provisions respecting tax exemption and institutional aid. These do indeed pertain to religious freedom, but they are not comparable in gravity to abortion. The interjection of these other issues greatly complicates the chances not only of getting a law reinstating the “compelling state interest” test but, indeed, of getting an abortion exclusion in it.

Second, any bill aimed at restoring the “compelling state interest” test must include a provision which will not permit it to be invoked by persons who challenge abortion-restrictive laws on religious grounds. The best provision would be one which simply defines “compelling state interest” to exclude the taking of unborn human life through abortion. Solarz supporters heatedly reject the idea that particular beliefs or believers should be excluded from the protection of the “compelling state interest” test. If one is excluded, so they argue, why not others? But the Supreme Court, more than a century ago, held that if a religion called for human sacrifice, it would not have constitutional protection. The parallel is close and worthy of note. The Solarz position (and the heart of the controversy over RFRA) is oblivious to such a view of the common good.

Third, to the argument that the slightest attempt to provide an anti-abortion amendment to an RFRA will kill the RFRA, should not the first response be one of principle rather than of politics? If the powerful forces of conservative evangelicals were combined with those of Catholics and the pro-life movement, the question could be forced in the Congress: “Do you not agree that there is a supreme societal interest in protecting innocent human life, including the unborn?”

I do not share the pessimism of those evangelicals in the Free Exercise Coalition who fear that any attempt to raise the abortion issue by amendment will spell doom for an RFRA. I think they underestimate their strength, especially when combined with that of other major groups. The first step by those who love religious liberty and who oppose abortion should be an explicit, pointed polling of the Congress on the question which I present above. It is more than likely that a majority would be found who, faced with that question, would respond affirmatively. The next step, purely political, would be to drive for an RFRA that would provide the definition of “compelling state interest” which I have suggested above. We should be able to hope that significant members of the Free Exercise Coalition would see the irony in allowing the Abortion Rights Coalition to hold religious liberty hostage to the agenda of the latter.

Of course, Congress may postpone action on any RFRA this session. The Supreme Court has now agreed to review two Free Exercise cases, one involving Hare Krishna’s religious solicitation in airports, the other, ritual animal sacrifice by a cult in Florida. The Court may utilize these cases to provide even worse rulings than it has in the Smith case, but it may also be true that the justices are well aware of the universal religious protest over Smith and will, expressly or by nuance, correct its faults. Wisdom might allow the Court this opportunity. It is not entirely predictable what effects might ensue from the Congress’s involving itself in so sensitive and complex an area as either pending bill would require it to do. Finally, though this hope may be in vain, it is possible that pro-life forces will succeed in the fall elections in providing more members of Congress who will sustain the kind of amendment to RFRA which I have suggested.

William Bentley Ball

By

William Bentley Ball was one of the nation's foremost Catholic constitutional lawyers. He died in 2000.

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