August 30, 2015 by David K. Sutton
Congress Shall Make No Law: Religious Freedom, And The Absolutist Exercise Thereof
As of April of this year, some twenty states had enacted so-called “religious freedom” laws, with similar legislation pending in another half-dozen states. But why do states need such laws when the First Amendment to the U.S. Constitution states that congress shall make no law prohibiting the free exercise of religion? The modern “religious freedom” movement, which took hold during the Clinton administration, was in response to a Supreme Court ruling in 1990 (“Employment Division, Department of Human Resources of Oregon v. Smith“). The case “determined that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual.”
“[T]he ruling made it easier for the government to place restrictions on the freedom of religion,” according to the Time Magazine article (“This Map Shows Every State With Religious-Freedom Laws“). In response, Congress passed the “Religious Freedom Restoration Act,” signed into law by President Bill Clinton.
That precedent didn’t sit well with state or federal governments. In the fall of 1993, Bill Clinton signed the federal Religious Freedom Restoration Act, which restored the standard the Court had overruled. “Those whose religion forbids autopsies have been subjected to mandatory autopsies,” Vice President Al Gore said at the signing ceremony outside the White House. This legislation, he said, was something “all Americans” could be behind. And many of them did, including Republicans, Democrats, evangelicals and progressive civil rights advocates.
But the Supreme Court did not set a new precedent, it merely upheld that no right is absolute. Vice President Al Gore’s “autopsy” example would be turned on its head if he was talking about the medical examiner, not the family of the deceased. And he was wrong when he said “all Americans” could get behind such a law, a law that offers religious belief an autonomy not given to any other right.
At the time of the signing, President Clinton said the law would hold government “to a very high level of proof before it interferes with someone’s free exercise of religion.” Does this mean religious belief, as a right, is on a higher plane than all other rights?
Just as free speech doesn’t protect your right to shout “Fire!” in a theater, religious freedom doesn’t protect your right to infringe on other’s rights. It can in fact be your deeply held religious conviction, and yet the First Amendment still does not offer you absolutist claim to subjugate others to your dogma.
But this is exactly where we get into the overgrown weeds of this debate. The problem when discussing religious freedom as a right, especially for anyone who supports “religious freedom” laws, is that they
expect demand unadulterated protection of their religious beliefs. Because in their view, there is no wiggle room. There is no compromise. There is only religious belief foremost, and if said religious belief discriminates and tramples on the rights of others, well, so be it. After all, it’s their deeply held religious conviction. In their mind, their religious belief is absolute. So, it is rational for them to believe religious freedom is the only absolutist constitutional right, even if the Supreme Court says they are wrong.
I don’t know how you square that circle. I suppose it can only be done with diligence, time, and hopefully the greater tolerance of future generations. Because you aren’t going to convince a religious person that their religion has conditions. You will not steer a person with deeply held religious convictions toward any argument that posits, religion is bounded by, and lumped together with, all other rights in a free society. You would have greater success waiting for the Cubs to win a World Series, or congress to act on meaningful climate change legislation.