Into the Intro: God vs. the Gavel
The Perils of Extreme Religious Liberty
As the Supreme Court prepares to announce their decision in the controversial Sebelius v. Hobby Lobby, Marci Hamilton has released an updated electronic edition of her constitutional law classic, God vs. the Gavel. In this new edition, she sets the record straight about the move toward extreme religious liberty in America and the dangers of letting religious rights trump our most basic laws.
Introduction to the Second Edition
The Wages of RFRA
It has taken over twenty years, but the American public is finally getting a true taste of the perils of extreme religious liberty. Finally, the Religious Freedom Restoration Act, or RFRA, has emerged for what it is: a license for believers to discriminate against homosexuals, abuse children without accountability, and force their huge projects on residential neighborhoods and families. But RFRA is only a part of the problem, because legislators and judges too often grant religious lobbyists and claimants privileges that let them harm others.
It is time for Americans to reverse the tide and return us to common sense religious liberty
RFRA is evidence of an agenda of one-way accommodation, where the religious believer is the center of the universe and the rest of us are supposed to make way. Each one of us is, on this theory, a self-enclosed universe where our only obligations are to ourselves. It is a recipe for intolerance, self-centered practices, harm to children, women, and the vulnerable, and, ultimately, if permitted to fester, religious war. You know why we haven’t had a religious civil war yet, like the rest of the world? Because we did not have extreme religious liberty until now.
To put it plainly, we are in the grip of a push for Me-Me-Me religious liberty, or, just plain narcissism.
The RFRA formula, which directs the courts to tailor every law to each believer promised disaster early on, but only a few of us saw it. And we have been called everything from “hysterical” to “overreacting.” What could be wrong with religious liberty, everyone said, especially members of Congress? A lot when it is extreme.
It took huge, for-profit companies with revenues in the billions like Hobby Lobby demanding a “right” not to be “complicit” in their female employees’ reproductive health decisions to get the country’s attention. The company hoisted RFRA to avoid including emergency contraception in its health care plans, because of its owners’ and board members’ beliefs. Dozens of businesses followed suit, with an array of objections to women’s reproductive health care beyond Hobby Lobby’s objection to some contraception. The move violates Title VII, because it discriminates against women and on the basis of religion, but that did not bother Hobby Lobby, which is taking its claim to avoid “complicity” in women’s most personal and private decisions to the Supreme Court.
Civil rights groups were shocked, as were many women, at the sheer nerve of the claim. They woke up none too soon.
While Hobby Lobby was reminding women that evangelicals and the Catholic bishops do not honor their legal rights to privacy, the RFRA formula was working its magic in the states, where arch-conservative groups were pushing ever more extreme RFRA-on-steroids bills that would permit businesses to refuse to deal with homosexuals and same-sex couples. Finally, civil rights groups, the press, and the public took notice of this insidious law, and cried foul. Arizona’s Governor Jan Brewer vetoed the Arizona version and every other similar bill across the country was withdrawn as Republican sponsors found themselves accused (rightly in my view) of taking us back to the Jim Crow era.
Some of the new bills “just” permitted discrimination on the basis of sexual orientation. Arizona’s went farther, as it was written so that businesses can use religious reasons to discriminate against anyone. If any state has the lack of judgment to pass such a bill, expect an influx of Biblical white supremacists.
This misguided statute introduced an era of extreme religious liberty in the United States that would have been rejected by the Framers, who understood the difference between ordered liberty and licentiousness. We need to return to that distinction, or risk the end of our peaceful, religiously diverse country.
Who wins under this regime? Believers who engage in animal cruelty, oppose family planning, believe women should stay in the home, and engage in invidious discrimination based on disability, race, gender, and sexual orientation. Not to mention the religious land developers who find inexpensive parcels in residential zones and then use extreme religious liberty statutes to force their large projects on families and neighborhoods. When neighbors complain about the intensity of the use, and their application appropriately denied, the religious applicant calls everyone anti-their religion, and races to federal court, where it can force the city to do their bidding and to pay its attorneys fees.
This pro-believer wave also has persuaded vote-hungry legislators not only to pass ill-considered statutes, but also to defer to religious demands to block access to justice for child sex abuse victims, to fail to prosecute child predators, and to cooperate in the cover-up of abuse.
Who loses? Children, child sex abuse victims, their families and friends, women, homosexuals, minorities, homeowners, cities, counties, taxpayers, and the entire society. What is being demanded is licentiousness, not liberty. It is time for Americans to reverse the tide and return us to common sense religious liberty.
A Brief History of How We Got Here
I will detail this history further in Chapters 1 and 8, but it is worth providing an overview for the reader first. Before RFRA was adopted, there were three constitutional principles. Belief is absolutely protected. Religiously motivated conduct can be regulated. Religious persecution is forbidden.
Except in rare cases, religious claimants did not have a right to trump the laws that govern everyone else simply because they were religious. Thus, the First Amendment did not grant the Amish a right to avoid Social Security taxes. In an iconic statement that captures where we were and where we should be, the Lee court explained how the Hobby Lobby case should be decided:
“…Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.”
Likewise, Jimmy Swaggart Ministries lost its bid to avoid sales taxes; Native American believers had no right to direct how the federal government uses its lands; Jewish merchants could not force the weekly day of no retail sales to coincide with their Sabbath, and a Native American family could not refuse to obtain a social security number for their infant as a pre-condition to getting federal welfare. Here is the Court nicely explaining these principles:
“Certain aspects of religious exercise cannot in any way be restricted or burdened by either federal or state legislation. Compulsion by law of the acceptance of any creed or the practice of any form of worship is strictly forbidden. The freedom to hold religious beliefs and opinions is absolute… However, the freedom to act, even when the action is in accord with one’s religious convictions, is not totally free from legislative restrictions. … legislative power over mere opinion is forbidden, but it may reach people’s actions when they are found to be in violation of important social duties or subversive of good order, even when the actions are demanded by one’s religion.”
The Court then held that the laws that impose indirect burdens on conduct do not violate the First Amendment.
Believers also have a strong right against discrimination, targeting, and persecution. In fact, there have been very few laws that fit this description in the United States, but the Santerians in Hialeah, Florida, who ritually sacrifice animals during worship services, won when the Court held that they could not be driven out of town by an ordinance that outlawed the “sacrifice” of animals, but let stand similar practices by other faiths. Nor can the government favor secular reasons over religious reasons when crafting exceptions to a law. Adell Sherbert, a textile mill operator and Seventh-day Adventist, whose Sabbath was on Saturday, was fired after missing Saturday work to attend church. The Court reasoned that she could not be denied unemployment compensation when an employee who had missed work for a doctor’s appointment could receive it.
Believers also have the right and power to petition lawmakers for exemptions, like the exemption for the use of Communion wine for Catholics during Prohibition, and the many others discussed in this book. If you add up all of this history, we enjoy absolute protection of belief, obligations to obey the laws over conduct, and a strong rule against persecution.
The one outlier case in this history was Wisconsin v. Yoder, where the Court turned on its prior cases to grant a right to the Amish to remove their children from school at age 14, and thereby trump Wisconsin’s compulsory education law, which required students to attend school until age 16. The Court focused on the Amish’s belief “that salvation requires life in a church community separate and apart from the world and worldly influence.” The Amish reject higher education, because of its “influences that alienate man from God.” The Court is unwilling to let Wisconsin educate the Amish children fully, because it recognizes a right to avoid the “destruction of the old Order Amish church community as it exists in the United States today.” As I discuss later, this decision was not a well-reasoned case, but rather a love letter to the Amish, who, according to the Court “have an excellent record as law-abiding and generally self-sufficient members of society.”
The Court even went so far as to say that the record in this one case “establishes without contradiction that the Green County Amish had never been known to commit crimes, that none had been known to receive public assistance, and that none were unemployed.” Having sung the religious entity’s praises, the Court then discounted the government’s and society’s interest in an adequately educated citizenry, assumed that no child would ever want to leave the faith, and failed to take into account the needs of children to be educated at least through high school. No group of humans is as perfect as the Court assumed in Yoder, and this decision shows just how far Americans will go to assume religious actors are intrinsically good people. Unfortunately, they are all too human.