A Baptist church-state specialist warned a Senate panel Oct. 2 against “a growing misunderstanding and sometimes willful distortion” of the constitutional right to free exercise of religion.
Amanda Tyler, executive director of the Baptist Joint Committee for Religious Liberty, told the Senate Judiciary subcommittee on the Constitution that the other religion clause contained in First Amendment – prohibiting an establishment of religion — is equally important, but often under-appreciated.
Tyler, one of three witnesses testifying at Tuesday’s hearing on religious liberty threats around the world, said the trajectory of recent court rulings regarding the separation of church and state – including one by Supreme Court hopeful Brett Kavanaugh – “tends to ignore the Establishment Clause.”
In a 2015 dissenting opinion from a decision the U.S. Appeals Court in the District of Columbia, Kavanaugh said the contraceptive mandate in Obamacare created a “substantial burden” on employers with religious objections to paying for coverage for services they deem immoral.
Substantial burden is the first of a three-prong test established in the Religious Freedom Restoration Act, a federal law passed in 1993 with support of a wide range of faith groups brought together by the Baptist Joint Committee. After determining there is a substantial burden, the law says, government must have a compelling interest before infringing on sincere religious belief, and that interest has to be advanced by the least restrictive means.
Tyler said the problem with Kavanaugh’s dissent – as well as the 2014 Supreme Court case that allowed the owners of the 500-store Hobby Lobby craft store chain to deny health coverage of contraception to more than 13,000 employees – appears to be “a conflation of sincerity and sincerely held religious belief with substantial burden.”
“The courts aren’t really delving into the substantial burden, which is the first part of that balancing test, before moving to have the government show a compelling government interest,” said Tyler, an attorney and former congressional aide. “Instead, it’s almost as if there is an automatic exemption that’s given whenever a claim is raised.”
Tyler said under RFRA “it is right for claimants to be able to raise their free exercise rights,” but “there must be a balancing with the rights of others as well.”
Tyler said the 5-4 Supreme Court decision siding with the evangelical Christian family that owns Hobby Lobby tilted the scale.
“When you read the court’s opinion, they really gloss over the entire substantial burden question and just say that those beliefs are sincerely held,” Tyler said. “We would be better served if courts would engage in a discussion about what constitutes a substantial burden.”
Tyler said granting special rights to one group at the expense of someone else contributes to polarization in a pluralistic society.
“I do agree that American unity around and support for religious freedom is in jeopardy right now,” she said, “and one way to restore it is to restore our commitment to defending both the no-establishment clause and the free-exercise clause of the First Amendment.”
Tyler also cautioned senators to “beware of the use of the term religious liberty to promote bad policy,” such as President Trump’s campaign to destroy the Johnson Amendment, the provision that prevents charitable organizations which benefit from tax-exempt status from engaging in partisan electioneering.
“I do agree that American unity around and support for religious freedom is in jeopardy right now, and one way to restore it is to restore our commitment to defending both the no-establishment clause and the free-exercise clause of the First Amendment.”
Tyler said the law, criticized in recent years by conservative pastors who claim it limits their right to speak freely from the pulpit, was on the books and non-controversial for more than 60 years.
“It just separates partisan campaigning from our 501(c)3 sector,” she said. “As campaigns have become more constant in our culture and as billions of dollars are being spent in campaigning, I think that’s been a good thing, to keep our houses of worship and other 501(c)3s non-partisan.”
“You know, sometimes our non-profit communities are some of the last places that we can go and not hear a political ad,” Tyler said. “They’re also some of the last places that are not divided by how we vote.”
Tyler said houses of worship and their leaders “are not seeing a restriction on religious liberty under current law.”
“They are still able to speak out on political issues – no matter how controversial – without being in fear of losing their tax-exempt status,” she said. “They’re also able to engage in non-partisan ways in campaigning. And in their private capacity – without using tax-exempt resources – they can endorse candidates and even run for office themselves.”
“Every religious denomination to address the issue is united in their support for current law,” Tyler said. “Changing the law would fundamentally change their non-partisan character, distract them from their core mission and threaten their independence.”