The Hijacking of the Term “Religious Liberty” for Political Gain

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August 6, 2015
Marci A. Hamilton
Marci A. Hamilton is one of the leading church/state scholars in the United States and the Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law, Yeshiva University. She is the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children, and numerous scholarly articles. She has been a visiting professor at Princeton University, New York University School of Law, Emory University School of Law, and the Princeton Theological Seminary. Professor Hamilton was lead counsel for the City of Boerne, Texas, in the landmark decision, Boerne v. Flores, 521 U.S. 507 (1997), and has served as constitutional law counsel in many important cases involving religion, particularly in the area of clergy sex abuse and religious land use. Professor Hamilton clerked for Associate Justice Sandra Day O’Connor of the United States Supreme Court and Judge Edward R. Becker of the United States Court of Appeals for the Third Circuit; and received a J.D. from Pennsylvania Law School, where she served as Editor-in-Chief of the University of Pennsylvania Law Review; an M.A. in English from Pennsylvania State University; an M.A. in Philosophy from Pennsylvania State University; and a B.A. from Vanderbilt University.

Words matter. The phrase of the moment is “religious liberty.” The headlines are filled with the politicization of the term, which has stretched well beyond its constitutional meaning. Conservative Christians demand it (whatever it is) so that they do not have to mix with LGBT individuals or remotely endorse—or be perceived as endorsing—same-sex marriage. The ACLU is saying it is for making sure sex predators can go to church but not for companies to restrict contraception. The Church of Cannabis says it is for illegal drugs. The Little Sisters of the Poor say it is for not having to say what they believe in writing when the result is that the government accommodates their beliefs.

We did not talk about religious liberty like this until 1993, when the statutory religious liberty regime descended on America with the Religious Freedom Restoration Act. Before that, the First Amendment’s religious liberty meant that the government could not tell you what to believe; or tell a church how to organize itself; or try to run the Santerians out of town by passing a law that applied only to them. In addition, it was never a license to violate laws that undermine complex governing systems, like the tax system or for courts to act as experts on the military, or know-it-alls on prison regulations. It meant that Adell Sherbert could not be denied unemployment compensation for going to church when other employees could take time off without such a penalty, but that drug counselors could not use illegal drugs, even if in a religious ceremony, where that was a requirement for their jobs. Neither could a man take multiple wives even if for religious purposes, nor a religious organization order the government how to handle its own land.

Constitutional Religious Liberty

Each of these Supreme Court rulings was drawn from the sensible balance that the founding generation built into the first state constitutions, which created a right to religious liberty so long as it did not violate peace and safety, while at the same time forbidding licentiousness in the name of religion. They fundamentally understood the necessity of liberty and the need to place limits on it. What do we call a country with too much “religious liberty”? A tyranny of establishment, say like Iran or the traveling country that is ISIS. Or if you prefer a Western example, there was too much “religious liberty” at the Tower of London and in the Salem witch trials. The Supreme Court’s First Amendment jurisprudence reflected this crucial balance between liberty and license.

But the First Amendment rulings are also much more, because constitution-based religious liberty is situated in the larger Constitution. For example, when the federal courts interpret the First Amendment’s Free Exercise Clause, they must also take into account the separation of powers, which has meant that in the First Amendment religious liberty cases, judges exhibited a healthy humility for their role vis-à-vis legislatures and the executive. That explains some of the wisest decisions, like the Court’s rejection of a right of soldiers to determine their headgear by faith in Goldman v. Weinberger, but also Congress’s subsequent willingness to then expand opportunities for religious headgear. Under the Constitution, federal judges must, if they can, also avoid a constitutional ruling that would invalidate a law—out of respect for their fellow branches. Courts are part of a system of checks and balances, and mutual respect is demanded when constitutional rights are at stake.

https://verdict.justia.com/2015/08/06/the-hijacking-of-the-term-religious-liberty-for-political-gain