Religious Freedom: What's All the Freedom About

By Ryan Snow

Who would have thought that late conservative Supreme Court Justice Antonin Scalia would write a judicial opinion severely debilitating the free exercise of religion and democrats like Chuck Schumer and Ted Kennedy would come to the rescue? This is all true-it happened in the early 1990s-resulting in the federal Religious Freedom Restoration Act. The federal RFRA enjoyed wide bipartisan support in the early 1990s. Yet more recently, various states have tried to enact their own versions of RFRA but have been met with enormous opposition. What happened to change people's minds about religious freedom? Are religious freedom laws really "license to discriminate"? This book seeks to add context to the contemporary debates regarding religious freedom, specifically RFRA, and related laws. Religious freedom laws may not be as bad as some want you to think.

• Language: English
• Publisher: Covenant Books, Inc.
• Release date: Oct 29, 2019
• ISBN: 9781645597537

Book preview

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Religious

Freedom

What’s All the Freedom About?

Ryan Snow

Table of Contents

What’s All the Fuss About?

Conscientious Resignation, Fired, and Criminally Prosecuted

Peyote and Prison

Bipartisan Backlash against Employment Division v. Smith

SCOTUS Strikes Back

The Failure of the Religious Liberty Protection Act and the Passing of the Religious Land 

Use and Institutionalized Persons Act

The Autopsy, Bankruptcy, and the Ceremonial Dulled Sword

When There’s No Alternative but to Override Religious Exercise

Cultural Warfare

Gay Rights vs. Religious Freedom

Conclusion

About the Author

ISBN 978-1-64559-752-0 (Paperback)

ISBN 978-1-64559-753-7 (Digital)

Copyright © 2019 Ryan Snow

All rights reserved

First Edition

All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods without the prior written permission of the publisher. For permission requests, solicit the publisher via the address below.

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This book is not legal advice for any situation. The author cannot and does not make any representation or guarantee, either expressly or impliedly, regarding the continuing validity of any case, regulation, law, or other rule(s) mentioned in this book, as cases, regulations, laws, or other rule(s) may be subject to change, including without limitation: reversal, amendment, repeal, revision, and/or invalidation.

If you have a legal question or need legal advice, please contact an attorney regarding your situation.

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Chapter 1

What’s All the Fuss About?

For the first time in nearly 300 years, important forces in American society are questioning the free exercise of religion in principle—suggesting that free exercise of religion may be a bad idea, or at least, a right to be minimized.

—Douglas Laycock, 2011¹

Too often these days, some groups and people are describing religious freedom in negative terms. Religious freedom undergirds the very origin and existence of the United States,² but support for religious freedom is weakening.

In 2014, some democratic senators from Washington State campaigned on limiting religious freedom.³ In 2016, a Chairman of the US Commission on Civil Rights, Martin Castro, casted religious freedom in a disparaging light: The phrases ‘religious liberty’ and ‘religious freedom’ will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy, or any form of intolerance.⁴ More recently, on September 7, 2018 (before the hearings on the allegations by Dr. Christine Blasey Ford of sexual misconduct), Alicia Wilson Baker testified before the Senate in opposition to Justice Brett Kavanaugh’s appointment to the Supreme Court, arguing that Judge Kavanaugh has shown his willingness to prioritize the religious beliefs of employers, universities, and insurance companies over the beliefs and personal decisions of individuals.⁵ In short, there are many who depict religious freedom as favoring powerful religions at the expense of civil and constitutional rights.⁶

Wait, are laws protecting religious freedom really that detrimental to society? Laws accused of being license to discriminate such as the federal and state versions of Religious Freedom Restoration Act are better classified as a balancing test with a heavy thumb on the scale in favor of religious liberty.⁷ Some (understandably) assume this balancing test (known as strict scrutiny) means license to discriminate, but that is not necessarily true.⁸

While religious freedom seems to have divided people ideologically (those in favor of religious freedom on the right, and those opposing religious freedom on the left), it wasn’t always that way. In fact, if you keep reading, you’ll see some things that will probably surprise you: a conservative Supreme Court Justice (the late Honorable Antonin Scalia) authored a Supreme Court decision that severely weakened the free exercise of religion, and Democrats like Chuck Schumer, Ted Kennedy, and Joe Biden argued for legislation to restore religious freedom because of Justice Scalia’s decision. Eventually, in 1993, that legislation, the Religious Freedom Restoration Act or RFRA, became law—but not before facing opposition from conservative groups for years before becoming law. Former President Bill Clinton not only supported but also signed RFRA into law.⁹

There’s a lot more to religious freedom besides the headline-making clashes between religious people and LGBT people, although this book does address that conflict. And some of those other religious freedom issues have also been resolved in a bipartisan way. For example, because of threats to religious freedom that arose in bankruptcy proceedings during the 1990s, Congress passed legislation in 1998 protecting a debtor’s right to tithe and that legislation passed the US Senate 100–0.

This book explores some of the recent history involving religious freedom. While state RFRA laws—or attempts to pass state RFRA laws—have made headlines, most people probably don’t know that a lawsuit involving a Catholic church in Boerne, Texas (near San Antonio, Texas) is a major reason why states began passing their own versions of the Religious Freedom Restoration Act.

This book also addresses criticism of religious freedom. For example, several critics also cried doomsday when the Supreme Court granted Hobby Lobby an exemption from the Affordable Care Act, when Hobby Lobby objected to providing four particular types of birth control to its employees, the provision of those four forms of birth control being against the Hobby Lobby owners’ faith. This overlooks the fact that Hobby Lobby was willing to cover sixteen other types of birth control in its insurance plans under the Affordable Care Act. The criticism is also largely ignorant of the actual Supreme Court ruling, which considered the health needs of women in making its decision.¹⁰

The difficult issues involving religious liberty such as LGBT rights and access to contraceptives must be understood, however, in the broader context of religious freedom. With an understanding of the history behind religious freedom laws, the stories and the people who drove the law to where it is today, one can more easily see past the inflammatory political rhetoric criticizing religious freedom.

Religious freedom is not absolute. Sometimes courts reject claims of religious freedom. Regardless of whether the cases were correctly or incorrectly decided, the Supreme Court has held that various governmental interests will defeat a religious freedom claim. Sometimes, the Supreme Court has found that a law has satisfied the demands of strict scrutiny, and other times, it has concluded that the government action challenged doesn’t impose any significant burden on religious exercise.¹¹

This book mainly deals with religious freedom claims that are evaluated under a standard called strict scrutiny.¹² The legal concept of strict scrutiny is a demanding standard that provides strong legal protection for religious freedom (and other rights), but strict scrutiny doesn’t necessarily mandate victory for religious freedom (or any other rights) when it comes to litigation.¹³ Strict scrutiny is a legal term of art that appears to have its origins in a Supreme Court case decided in 1963.¹⁴ The strict scrutiny standard is how federal and state courts across the nation have protected religious freedom for decades.¹⁵

Sometimes governmental interests will satisfy strict scrutiny and consequently defeat a religious freedom claim. For example, later in this book, you will read about a case where Orthodox Jewish Rabbis tried to dismiss their criminal indictments for kidnapping charges, arguing that their religion required kidnapping, and you will read why the courts rejected their religiously based defenses to those charges.

This book is meant to give a basic overview of religious freedom, using as little legalese as possible. This book is not legal advice. But where the book uses legalese, or quotes legal sources such as statutes or judicial opinions, it attempts to keep the legal concepts as simple as possible, especially for those who have no interest in studying law. It also seeks to give the reader an overview of some pertinent legal history relating to current debates regarding the free exercise of religion.

There are also other important aspects of religious freedom that are not as headline-making. The ability of incarcerated individuals to live according to their faith while in a correctional facility is one example. Religious organizations have also encountered difficulties with local zoning ordinances and building places to worship. Those are also discussed in this book.

For now, let’s start with RFRA because various proposals to enact legislation based on RFRA at the state level have grabbed the most headlines recently. The federal RFRA forbids the government from substantially burden[ing] a person’s exercise of religion, ¹⁶ unless it has a compelling reason to infringe on that person’s claim to religious freedom, and there are no alternative ways to accomplish that compelling objective (other than directly infringing on that person’s religious freedom). This is the strict scrutiny standard.

The federal RFRA and state versions of RFRA are not always identical, and the difference in wording between the federal RFRA and state versions of RFRA may or may not have legal significance. But the basic thrust of the federal RFRA, state versions of RFRA (or proposed state versions of RFRA that don’t become law), and state courts interpreting their constitutions consistent with the legal principles in RFRA is that strict scrutiny protects religious exercise.¹⁷

If this legalese doesn’t make sense, keep on reading; this book will illustrate these principles with real stories of how religious freedom laws have played out in practice in several different contexts.

¹ Douglas Laycock, Sex, Atheism, and the Free Exercise of Religion, 88

U. Det. Mercy L. Rev.

407 (2011)

² 22 U.S.C. § 6401(a) (2016).

³ See Marci A. Hamilton, The Hobby Lobby Solution,

Justia Verdict

(Oct. 16, 2014) https://verdict.justia.com/2014/10/16/hobby-lobby-solution (last visited December 22, 2018).

⁴ Chairman Martin R. Castro Statement,

Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties

29, available at http://www.usccr.gov/pubs/Peaceful-Coexistence-09-07-16.PDF (last visited Mar. 23, 2019).

⁵ Testimony of Alicia Wilson Baker Before the Committee on the Judiciary United States Senate Hearing on the Nomination of Brett Kavanaugh to be an Associate Justice of the United States Supreme Court (September 7, 2018) https://www.judiciary.senate.gov/imo/media/doc/Baker%20Testimony.pdf (last visited December 28, 2018).

Mrs. Baker took issue with then-Judge (now Justice) Kavanaugh’s dissent in a case involving contraception access. See Priests for Life v. HHS, 808 F.3d 1, 14–26 (D.C. Cir. 2015) (Kavanaugh, J dissenting from denial of rehearing en banc.) Contrary to Mrs. Baker’s testimony before the Senate, Judge Kavanaugh’s dissent in Priests for Life showed that he considered women’s health needs. See id. at 21–23. Judge Kavanaugh would have ruled for the religious objectors in Priests for Life on the least restrictive means prong of RFRA, and in so doing he would have found a win-win resolution for both parties in that case. See id. at 23 (citations omitted).

⁶ See Leslie C. Griffin, A Word of Warning from a Woman: Arbitrary, Categorical, and Hidden Religious Exemptions Threaten LGBT Rights, 7

Ala. C.R. & C.L. L. Rev.

97, 99 (2015–2016)

⁷ See Brief of Baptist Joint Committee for Religious Liberty as Amicus Curiae in Support of Respondents at 26, Zubik v. Burwell, 136 S.Ct. 1557 (2016) (Nos. 14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119, 15-191).

⁸ See Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59

Vand L. Rev

. 793, 857–858 (2006) (explaining that between 1990 and 2003, federal courts rejected 59 percent of religious freedom claims, evaluated under the strict scrutiny standard).

⁹ 139

Cong. Rec.

9684 (1993).

¹⁰ The Supreme Court gave women the benefit of the doubt and assume[d] that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA… Burwell v. Hobby Lobby, 134 S.Ct. 2751, 2780 (2014).

¹¹ See e.g., Hernandez v. Commissioner, 490 U.S. 680 (1989) (upholding IRS determination disallowing tax deduction for Scientologists); United States v. Lee, 455 U.S. 252 (1982) (rejecting Amish religious arguments claiming exemption from paying Social Security taxes); Bowen v. Roy, 476 U.S. 693, 695 (1986) (rejecting a Native American religiously based objection to the statutory requirements that a Social Security number be provided by an applicant seeking to receive certain welfare benefits…); Lyng v. NW Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) (rejecting Native American challenge to government expanding on land Native Americans considered sacred); Jimmy Swaggart Ministries v. Bd. of Equalization of CA, 493 U.S. 378, 392 (1990) (We therefore conclude that the collection and payment of the generally applicable tax in this case imposes no constitutionally significant burden on appellant’s religious practices or beliefs); Locke v. Davey, 540 U.S. 712 (2004) (Washington State’s prohibition on using scholarship money toward a theology degree did not violate Free Exercise Clause, or impose a burden on religious exercise.) This is a non-exhaustive list.

¹² Some religious freedom claims, in different contexts, may be evaluated under a different standard in court. See e.g., Trans World Airlines Inc. v. Hardison, 432 U.S. 63, 84 (1977) (religious accommodation requiring more than "de minimus cost is an undue hardship" for a business under Title VII).

¹³ See e.g., Cervelli v. Aloha Bed & Breakfast, 415 P.3d 919, 935 (Haw. Ct. App. 2018), petition for cert pending, No. 18-451 (filed Oct. 9, 2018) (Hawaii’s public accommodations law satisfies strict scrutiny.)