The Road to and from Extreme Religious Liberty

MARCI A. HAMILTON is one of the United States’ leading church/state scholars, a senior fellow at the University of Pennsylvania’s Program in Religion and Urban Civil Society, and holds the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law at Yeshiva University. With master’s degrees in English and philosophy, she earned her JD at the University of Pennsylvania, where she served as editor-in-chief of the University of Pennsylvania Law Review. Hamilton clerked for U.S. Supreme Court Justice Sandra Day O’Connor and Judge Edward R. Becker, and she successfully challenged the constitutionality of the Religious Freedom Restoration Act (RFRA) at the Supreme Court in Boerne v. Flores in 1997. She is considered the leading national advocate for the victims of the RFRAs and the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Hamilton is the author of several books, most recently God vs. the Gavel: The Perils of Extreme Religious Liberty (2014). In addition to writing legal columns and blog posts, she also hosts RFRAperils.com, which tracks free exercise statutes in all fifty states and the federal government, and sol-reform.com, which tracks the movement for legislative reform of statutes of limitation for child sex abuse survivors nationwide.

The following was adapted from her speech delivered May 9, 2015, in acceptance of the Religious Liberty Award at the American Humanist Association’s annual conference. For those interested in learning more about getting in and out of extreme religious liberty, see Hamilton’s article, “The Case for Evidence-Based Free Exercise Accommodation: Why the Religious Freedom Restoration Act Is Bad Public Policy,” published in the Harvard Law and Policy Review, Vol. 9 (2015).

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AT THE FOUNDING OF THE UNITED STATES, James Madison drafted the First Amendment; his view was that there is such a thing as too much liberty. The larger culture also believed that you could have such a thing as too much liberty, and they had a name for it: “licentiousness.” Many state constitutions excluded acts of licentiousness and placed peace and safety limits on the right to free exercise of religion.

Dangerously, in our modern era we’ve temporarily lost the ability to talk about too much liberty. The Religious Freedom Restoration Act (“RFRA”) and the thousands of religious exemptions granted without thought for the persons harmed have allowed religious accommodation that yields too much to the believer and harms too many affected by the believers’ conduct. Fortunately, the extreme rights awarded, via RFRA, to the craft store chain Hobby Lobby by the Supreme Court in 2014 set off an alarm that many in society are hearing.

The reason I wrote the first edition of God vs. The Gavel is because legislators are unnaturally deferential to religious entities. So, when a bishop sweeps in and says, “No, no, no. Don’t change the statute of limitations on child sex abuse because you’ll hurt us,” members of legislatures across the country respond, “Oh, you’re right, I don’t want to hurt religion.” There was a time when it was easy to assume that religious actors never harmed anybody. That’s long past, right? We’re in a war against radical Islamists. We’re not in a war against people who don’t have any religious faith. It’s religious faith that knows no limits. An extreme religious faith is the basis of our war. You can’t talk about religious actors not doing harm anymore. You can’t talk about clergy sex abuse not existing, because it does, and it is now, finally, being investigated by the press.

So we’ve won with the press. They’re now covering religious figures making mistakes and committing crimes against the vulnerable. There was a time—it was an interesting time—when if the New York Times, the Philadelphia Inquirer, the Milwaukee Journal Sentinel, or the Los Angeles Times caught wind of a religious actor doing something wrong, they would quash the story. They wouldn’t cover it because they thought their readership didn’t want to hear it. That’s no longer true; those stories are now on the front page. That’s why we now know about the fundamentalist Mormons abusing their children. That’s why we know about clergy sex abuse. That’s really why we can talk about the War on Terror in ways that we couldn’t before.

I assume most if not all of you have heard of RFRA (pronounced “riff-ruh”) by now. RFRA, which stands for the Religious Freedom Restoration Act, is a threat to sound public policy because it was built on propaganda, it is sold on propaganda, and it is perpetuated via propaganda. My view, as an educator and public intellectual, is that it is my job to uncover where the propaganda lies, because it’s the truth that will get us back to liberty and off the ledge of licentiousness.

The RFRA story began in 1990. I was clerking for Justice Sandra Day O’Connor, and the U.S. Supreme Court ruled on the peyote case, Employment Division vs. Smith, in which the Court held that if you’re a religious believer and drug counselor, and you’ve violated the state drug laws, you can be fired and made ineligible for unemployment compensation. The First Amendment is not a defense in those circumstances. Yet, it was not the end of religious liberty: the Court approvingly pointed to legislative accommodation for the use of peyote in several states. The religious and civil liberties factions wrongly responded, however, that legislatures are not accommodating enough and that they needed to be able to use the First Amendment to obtain true religious liberty.

The response to the Smith decision was an overreaction that was fueled by the disappointment of religious litigators and lobbyists whose campaign since the 1960s to radically increase rights to avoid neutral, generally applicable laws had been firmly rejected. They had been seeking an extreme standard, and while the Court had never granted it before, not until Smith was it crystal clear they would never receive extreme protection from the Supreme Court.

The anti-polygamy case in the late nineteenth century, Reynolds v. United States, was the first free exercise case. If a law is neutral (i.e., it’s not discriminatory) and if it’s generally applicable (i.e., it applies to everybody who does the same thing), the First Amendment does not relieve the actor of the force of the law. So the Court (and lower courts) have repeatedly held that any law that is neutral and generally applicable applies to everyone. For example, the person who is late to church and who runs a red light is just as guilty as the person who runs a red light on the way to the store. Your faith does not relieve you of such general laws. Similarly, the contraception mandate in the Affordable Care Act is constitutional under the First Amendment. The only reason that Hobby Lobby now stands where it stands with an ability not to provide contraception to its female employees is because of RFRA. RFRA has displaced the First Amendment in the vast majority of cases. The cry now should be to return the First Amendment to religious liberty.

The bottom line in Smith was that drug counselors didn’t have a constitutional right to use illegal drugs. Still, the result was a net increase in religious liberty, as Native American church members fanned out across the country and asked for exemptions from the drug laws in each state, and in every state in which they requested an exemption, they received it. In other words, the net result, which triggered all that we’re living with today, was in fact an increase in religious liberty. They lost at the Supreme Court, but they won in every legislature to consider the issue. Regardless, its proponents pushed for the Religious Freedom Restoration Act in Congress, which would implement the extreme standard they had demanded for decades but definitively lost in the Smith decision.

Three years later, the Supreme Court decided the Church of Lukumi Babalu Aye v. City of Hialeah. This case involved animal sacrifice during religious ceremonies by the Santerians. Neighbors of the church objected to the part of the ritual where the sacrificed, bleeding animal landed on the street. But let’s face it, Hialeah wanted to be rid of the Santerians, not just have them engage in more sanitary disposal. It was a drive to get rid of a religious minority.

In that case, the Church of Lukumi Babalu asked again for an extreme level of protection. They wanted what would amount to a right to licentiousness, a right to tailor the law to their personal faith. Five months before RFRA became law, what happens? The church demands this extreme standard for laws that are not neutral or generally applicable, arguing that the government must prove it has a compelling interest and that the interest is served in the “least restrictive means” for this believer. The Santerians won, but the Court also rejected the church’s extreme test, as it had under every other prior case. Again, the net result was a net plus for religious liberty.

Still, RFRA’s proponents persisted in telling Congress that the Court had “abandoned” religious liberty and demanded a statute with the extreme standard rejected in Smith and Church of Lukumi. That statute is RFRA. Therefore, in the two free exercise cases that led up to the Religious Freedom Restoration Act, religious liberty won. But RFRA was still sold to Congress and the president as needed. Religious liberty supposedly had been “abandoned” and we supposedly needed a law to enact the standard that was rejected in Church of Lukumi five months before.

What’s wrong with RFRA? I’ll tell you what’s wrong with RFRA: it has a misleading title, a misleading lobby, and opaque content. Other than that, it’s a really great law. (I’m joking.)

FIRST THE MISLEADING TITLE. It’s called the Religious Freedom Restoration Act. Yet, it doesn’t restore anything. It introduces a new standard never before employed by the Supreme Court in a free exercise case, whether the case involves a neutral law or a discriminatory law. Kudos though to whoever named it because it is a nearly impossible name for a legislator to vote against, regardless of content.

After we prevailed in Boerne v. Flores (I represented the city of Boerne, Texas) and the Court held RFRA unconstitutional in 1997, it was then sold across the states. In Indiana, like all the rest, it was touted as a law that simply codifies a prior, ordinary standard. That is nothing short of a lie. In fact, RFRA does two things: it imposes a new, extreme standard on discriminatory laws, and it does the same for the laws that are neutral and generally applicable, e.g., nondiscriminatory.

THE MISLEADING LOBBY. The Coalition for the Free Exercise of Religion supported RFRA. Why was it misleading? It was every major religious group in the country plus the ACLU, People for the American Way, and Americans United for Separation of Church and State. Now, there were groups that weren’t part of that coalition, and they didn’t want the members of Congress to think about them when it agreed to pass RFRA. Al Qaeda; The Children of God, which was a Berkeley-based sex cult that believed that children starting at age three should have sex with everybody in the cult; The Church of Satan; The Ku Klux Klan; The World Church of the Creator—none of these groups were named. Why? Because you had to whitewash all religious conduct to let people think that RFRA was a good idea. If you didn’t whitewash it, they knew that they would never get it passed.

The lobbying for RFRA was misleading because they characterized it as all mom and apple pie. It’s not. They also didn’t bother to mention the main agenda behind the original RFRA, which was not to get peyote to the Native American Church. The main agenda had to do with the fact that conservative Christians were losing the fight against fair housing laws in the states. They didn’t want to have to rent to unmarried couples, single mothers, or gay couples. They were losing that political fight. They needed RFRA to be able to trump the laws. The only way RFRA’s critics learned of this agenda was when someone shared with me the Christian Legal Society’s letter to legislators when we were fighting the California RFRA. I don’t remember the details of how I received that fax, but it was eye-opening. Perhaps an act of God. I was shocked, frankly. I had bought into the public story that this was all about peyote, but it was really about keeping people out of apartments based on religion.

OPAQUE CONTENT. The language of “least restrictive means” was new for the courts but the whole statute—which is nothing other than constitutional law gobbledygook—is hard for people or the press to understand. RFRA is triggered if there is a “substantial burden” on the believer; at that point, the government must prove a “compelling interest” in the law that is accomplished through the “least restrictive means.” All three terms have posed opaque puzzles to the public and the press. Hobby Lobby argued that providing cost-free contraception as part of its health care plan imposed a “substantial burden” on its belief that some of the contraceptives were abortifacients and that the government did not have a compelling interest in women receiving cost-free contraception and even if it did, including cost-free contraception in their plan was not the “least restrictive means” of serving the government’s interest. What would be less restrictive? According to the Court: have the government pay for it. This is something that’s politically infeasible; it will never happen. In other words, the least restrictive means is whatever is needed to accommodate the believer, without regard to whether such a law would ever be passed. In effect, RFRA makes the judiciary a superlegislature, with judges second-guessing any legislative or legal rule if it imposes a burden on any believer and any belief.

LOBBYING PROPAGANDA. Then the RFRA fire was spread into the states. What is all the propaganda in the states? You hear repeatedly that RFRA was passed “unanimously.” You don’t hear that from the major media outlets anymore because I resorted to contacting editors and reporters whenever this misrepresentation was made to correct the record. No reporter worth their salt should be spreading such propaganda. Fact: it was never passed unanimously in Congress. It was passed by “unanimous consent.” Unanimous consent is the procedure by which nobody is present except some members of leadership and the opposition has left the building.

It’s also untrue that bipartisan support for RFRA continues. Groups like the ACLU have now peeled off in embarrassment that they were ever in favor of it in the first place.

Twenty states currently have RFRAs, with thirty left to go, though it does appear that the momentum has slowed dramatically. There is a movement to amend RFRA, if not repeal it, in Congress, and to institute civil rights for the LGBTQ community in federal and state laws. By their very existence, these movements show that the pendulum of religious liberty is swinging away from its most extreme apex in American history to date. There is, however, a way forward for religious liberty that everybody needs to understand. It’s what we were doing before 1990, except we weren’t being explicit enough about it. We should return to the First Amendment’s doctrine, repeal RFRA, and when there’s a request for a religious exemption from a law, four issues need to be considered. Until they’re raised, discussed, and understood, no accommodation should happen.

1. Which law is going to be affected? Don’t talk to me about “every law” as in the blind accommodation that is RFRA. Tell legislators and the public specifically which law will be affected.
2. Indeed, the RFRAs should be rejected and repealed. The way to win in any legislature is to make five phone calls. Every legislator thinks that the house is on fire if they get five calls in the same day on the same issue—five. So if you can find four friends to join you in calling your elected representative on the same day—it’s hard to believe but the accumulation of a few individual voices can make a difference in a particular electoral district.
3. Who wants to overcome this law? Demand the truth. Is it the Christian Legal Society not wanting to rent to unmarried couples? Conservative Christians with an agenda to block contraception generally?
4. Who will be harmed? Are you going to raise this defense in child sex abuse cases involving clergy as RFRA is now raised routinely in twenty states?

What is the hurry? There is no reason to provide religious exemption in a legislative text overnight. It should be aired. It should be debated. It should not be assumed it’s always good. Because now that we’ve reached the level of licentiousness, we need to return to common sense and start thinking: Who are we going to harm if we provide too much religious liberty? There really is such a thing as too much religious liberty. Those harmed by it, which I catalogue in God vs. the Gavel: The Perils of Extreme Religious Liberty, know this all too well.