Standerinfamilycourt.com Blog Commentary: This post is to remind that there are influential people out there who fervently wish the latter portion of the 1st Amendment didn’t exist at all. People who think that the founding fathers’ purpose in the Establishment clause was to protect government from religion (amazing how even some law professors didn’t pay attention in history class), while most of us are perfectly clear from the context of WHY this nation was founded that it was the other way around. These forces rejoiced when a Supreme Court decision about peyote mushrooms 25 years ago significantly watered down the Free Exercise clause. Were these forces infuriated when Congress tried to restore it with 1993 legislation which was intended to appropriately balance the interests, and to apply the law to all 50 states? Did they rejoice when the U.S. Supreme Court slapped down the portion of that law that applied to the states? Did they settle into a glowering resentment as a few states subsequently adopted verbatim Federal language in state legislation? Hard to say. By some accounts even the ACLU was onboard with RFRA in the early days (must have been the peyote mushrooms at issue) , and the Congressional record reflects broad bipartisan support of that legislation, but most states didn’t rush to adopt RFRA’s in that era.
Then came the very wise 2014 Burwell v Hobby Lobby decision – which dealt with forced provision of contraception to employees. Despite the loud howling that society was going to unravel if employers weren’t uniformly compelled to be the source of all birth control, this crowd knew that considerably more was at stake for the homosexual agenda, the abortion agenda, and as they may soon find out….the unilateral divorce agenda. Religious freedom protection, when done in a way that merely restores and reaffirms the balanced constitutional intent in the original language of the 1st Amendment, is absolutely lethal to virtually every aspect of the liberal social agenda. What we’ve witnessed since 1990 is a football game between activist judges and the people of the United States marked by a series of back and forth interceptions.
This week some sickening news broke in the wake of the 9th Circuit Court of Appeals decision striking down Idaho’s constitutional definition of marriage as between one man and one woman. An ordained ministry couple who run a wedding chapel in Coeur D’Alene is under threat of being jailed because they refuse to officiate a homosexual wedding that mocks God. A few years ago, a Christian father in Massachusetts was jailed when he exercised his parental rights and held his 5-year old out of mandatory public school pornographic homosexual indocrination classes (to which he was not even entitled to advance parental notice). In New Mexico, a Christian photographer was fined for referring a homosexual couple on because she could not ethically shoot another faux wedding that was morally repugnant to her. She was told by her state high court that violating her deeply held convictions was the price for the privilege of doing business in the state. The original Free Exercise clause should have been adequate protection for each of these innocent citizens against those who would criminalize biblical ethics, but since it was not, these states were permitted to enforce criminal sanctions against them because those states either lacked a RFRA, or the version enacted varied from the Federal version in a way that made it ineffective.
In reading the piece below, the critical thinker won’t be fooled by the extreme negative examples offered up by Prof. Hamilton. Why? Because wherever there is an attempt to apply RFRA inappropriately, to wit:
[ “…the forced marriage of adolescents into polygamous marriages, the violence of white supremacist or radical jihadist prison gangs…The perpetrators of 9/11 were religious zealots. So were the parents who let their children die. Roman Catholic bishops covered up for child abusers and endangered one child after another to protect the religious institution from scandal.” ] such facts will reliably trigger a situation where the governing authority will have no problem meeting their burden of demonstrating a compelling interest. In such situations, “Gavel” wins (as does God), but Prof. Hamilton didn’t finish those stories for her audience, and it’s unclear that religious freedom defenses were actually asserted in any of these situations. The liberal camp is desperately trying to get the religious freedom ball back by means of a “fake”. Prof. Hamilton and her cohort would have us believe the balance of interests reflected in state and Federal RFRA laws is “extreme”.
“But the fruit of the Spirit is love, joy, peace, patience, kindness, goodness, faithfulness, gentleness, self-control; against such things there is no law.” Galatians 5:22-23
All this said, standerinfamilycourt.com heartily salutes Prof. Hamilton for her excellent job of cataloging the up to the minute status of the various states’ RFRA legislation, an invaluable service. I’d propose that defenders of religious freedom might use Prof. Hamilton’s useful link to keep one eye on their state legislative agenda in the months ahead.
by Marci A. Hamilton, the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University.
*This post originally appeared on Hamilton and Griffin on Rights.
How do you talk about the unspeakable? A decade ago, it was taboo to criticize religion or religious believers in print. They were a benign presence in America right next to apple pie. I wrote God vs. the Gavel: Religion and the Rule of Law then to defeat this taboo, because it was masking a reality most Americans would want to know.
There I stacked up transgressions of religious actors, including the sexual abuse and medical neglect (to death) of children, the forced marriage of adolescents into polygamous marriages, the violence of white supremacist or radical jihadist prison gangs, and even the questionable dealings of religious developers who forced incompatible uses like homeless shelters into residential neighborhoods. It was all for religion, with results that were not so benign.
The destruction of the taboo was necessary in a just society. The perpetrators of 9/11 were religious zealots. So were the parents who let their children die. Roman Catholic bishops covered up for child abusers and endangered one child after another to protect the religious institution from scandal. Then the same pattern appeared across virtually all religious denominations. These were atrocities.
Before these criminal acts reminded us of the power of religion to be both transcendent and horrible, Congress had ratcheted up the rights of religious believers by passing the misbegotten Religious Freedom Restoration Act (RFRA) in 1993 and 2000. Hardly anyone understood what it meant either time and no one was thinking of jihadists, clergy child predators, or children dying from medical neglect, in part because mainstream religious lobbyists intentionally presented a wholesome face to Congress, arguing that religious believers faced discrimination across the country that needed to be corrected by the statute.
What could possibly be wrong with “restoring” religious freedom? A lot, when it is not an actual restoration but rather a new concoction that handed believers rights to avoid the law that they never had before.
Then RFRA metastasized as religious lobbyists demanded the enactment of state RFRAs, with the argument that if it was good for the federal government, it was good for the states. Nineteen states have followed suit, and lobbyists are still pushing in the rest.
I wrote God vs. the Gavel: The Perils of Extreme Religious Liberty, to unmask RFRA for what it is and to explain to the American public what it desperately needs to know: the opaque, legalistic mumbo jumbo of RFRA and the culture it has generated carve out a pathway to child abuse and neglect, discrimination, and tyranny. The Burwell v. Hobby Lobby case and decision were shocking to many Americans, but not to me. It is only one example of what happens when we give religious actors extreme rights.
My goal with The Perils of Extreme Religious Liberty is to educate as many as possible about the perils of extreme religious liberty, the need to fight for the protection of the vulnerable, and the wisdom of repealing the RFRAs. Even religious liberty needs to be leavened with common sense.
SIFC Further Note: Marci Hamilton was lead counsel for the city of Boerne, Texas, in the religious freedom case Boerne v. Flores before the U.S. Supreme Court. In this case, the Supreme court ruled that the Federal RFRA passed by Congress could not be applied to the states. This prompted several states to legislatively adopt their own versions of RFRA, many of them verbatim versions of the Federal law.