The Religious Freedom Restoration Act is unconstitutional and opened the door to the death of religious liberty in America, political science professor Marci Hamilton told the Texas Tribune Festival Nov. 13.
Hamilton, a lawyer with extensive experience in religious liberty cases, shared the platform with Mark Silk, professor of religion in American life emeritus at Trinity University in San Antonio, and Josh Blackman, professor at South Texas College of Law in Houston. Silk takes a traditionalist stance on religious liberty and Blackman takes a stance more in line with modern conservatives; he serves on President Donald Trump’s Religious Liberty Commission.Smith Employ
Marci Hamilton
Hamilton is a professor of practice in the Department of Political Science at the University of Pennsylvania. She successfully challenged the constitutionality of RFRA at the U.S. Supreme Court in Boerne v. Flores (1997) and defeated the RFRA claim brought by the Archdiocese of Milwaukee against hundreds of child sex abuse survivors in a lower court case, Committee of Unsecured Creditors v. Listecki (2015).
The discussion was moderated by Adelle Banks, national reporter for Religion News Service.
The panelists represented the three most common understandings of religious liberty in America today — a traditionalist stance that allows some privilege for religion through RFRA; an evangelical stance that sees no problem with local majorities setting the agendas for religious expression; and a strict separationist perspective.
One point of agreement
One thing all three agreed on is that the notion of religious liberty in America has been shifting significantly.
“Over the past 40 years there’s been a sea change in the way religious liberty is conceived, or at least how the courts interpret the two articles related to in the First Amendment, which are ‘Congress shall make no law respecting an establishment of religion or prohibit the free exercise thereof,’” Silk said.
He sees the Supreme Court’s 1990 decision in Employment Division v. Smith as a key turning point. In that case, the court ruled states are not required to provide exemptions for generally applicable, neutral laws that incidentally burden religious practice. The case involved denial of unemployment benefits to two Native American church members who were fired for using peyote in religious ceremonies.
Mark Silk
Concern over that ruling sparked the passage of the Religious Freedom Restoration Act, which aimed to restore stricter protections for religious practices against government interference. RFRA established in federal law a standard that says government may limit religious practice only when it has a compelling interest to do so and acts in the least restrictive means possible.
Both Silk and Blackman support RFRA and its state-level parallels. But Hamilton does not and has written extensively on this topic.
Another change Silk sees happening around the Smith decision is a shift in protecting religious expression for small minority groups — Seventh Day Adventists and Jehovah’s Witnesses, for example — “to quite large minorities, the Catholic Church, conservative Protestants.”
Blackman concurred with Silk that the last three or four decades have brought changing views on religious liberty. “We didn’t have Christian groups claim (violations) back in the ’80s and ’90s, frankly, because they didn’t need to. Only more recently have they brought these claims.
Josh Blackman
“Back in the ’60s and ’70s and ’80s, the court vigorously enforced separation of church and state,” Blackman said, adding a favorite conservative talking point that the phrase “separation of church and state” does not appear in the Constitution but came from a letter written by Thomas Jefferson to a group of Baptists in 1802.
The court’s more recent stance says, “Unless religion coerces you, unless something actually forces you to engage religion, there’s no violation,” and he believes that’s proper.
An opposing view
Hamilton began her remarks by saying she “completely rejects” what Silk and Blackman said.
“I was clerking at the United States Supreme Court for Justice Sandra Day O’Connor when Smith was decided. No one at that court thought it was creating a change in the law. What they believed … was that he was essentially codifying … what the previous cases had held.”
“Religious believers have to obey the law,” she insisted. “They cannot be discriminated against, they cannot be persecuted. We have very strong rules against that. But being religious does not mean when you’re late for church and you run a red light, you get to say, ‘You can’t give me a ticket. I’m on the way to church. My beliefs mean that I have to be there.’”
The fruit of religious exemptions allowed by RFRA shows up in conservatives’ claims today that they have the right to indoctrinate children and adults in public places, she said later.
“I was in the room to listen for the first time 20 years ago, 25 years ago, to listen to the blueprint for the Republican plan to reduce public schooling and to increase government funding and tax funding for religious schools. This has been a political plan for 25 years and it is not based on our history fairly. So why is it that the Supreme Court held that public schools could not have morning religion? Why not? Because you can’t find a religion that isn’t sect specific. What happened is, the public schools opened and they had very specifically Protestant religious prayers in the morning.”
When evangelicals claim they should have the right to post the Ten Commandments or place Bibles in public school classrooms or to have teachers lead in prayers, this is the result of the victories they believe they won through RFRA, Hamilton said.
“The battle for the heart of the United States right now is do we embrace diversity or do we embrace government control of religion.”
“The battle for the heart of the United States right now is do we embrace diversity or do we embrace government control of religion and government use of religion or political purpose? … What’s happening is that the ‘Christian country,’ which evolved into Christian nationalism — that movement thinks, and I think sincerely, they’re all doing us a favor by making sure funds flow to their preferred religious perspectives and that the country will be dominated by their religious beliefs.”
That ignores the 100,000 religious sects that exist in America today, she said. “So this is the question, and this is what (James) Madison was so concerned about, this is why he fought the tax for religious schools in Virginia: If you as a taxpayer are paying for another religious entity to promulgate their views, that is a violation of your right to conscience and the end of the separation of church and state.”
Honoring religious diversity “means taxpayer dollars do not support religious schools but rather support public schools where prayer is unconstitutional, not in violation of history but in recognition of the dramatic diversity that is making us safe right now,” she said.
Recipe for war?
Religious establishment through government is a recipe for war, Hamilton asserted. “That’s the rest of the world. We’ve had so much peace with so much diversity in our nation because of the separation of church and state.”
Neither Silk nor Blackman agreed that America is headed for a religious war.
“I think most likely what we are seeing happening is less a sort of civil war between folks as a division in the country, state by state. … What I see happening is something not so dissimilar or analogous to the issue of race prior to the Civil War,” Silk said.
Blackman rejected the war warning entirely.
“I don’t think having the Ten Commandments posted on the wall of the classroom will lead to war.”
Conservatives believe “they’ve not been able to express their beliefs in fairly modest ways,” he said. “I don’t think having the Ten Commandments posted on the wall of the classroom will lead to war.”
The kinds of accommodations conservatives seek are not like running red lights to get to church, he said. “There are no modern-day Mayans arguing the right to human sacrifice. The claims are, I think, fairly modest.”
Further, religion is not an “evil force,” he added. “The Supreme Court unfortunately in the ’50s, ’60s made us think of religion” that way. “I think that was a mistake.”
Hamilton replied that “our Pollyanna attitude toward religion is dangerous. Religion is run by people. Now if every religion was run by a benevolent God, I could agree that it’s always good. That’s not true. And so we have unsafe religions and we have safe religions; we have unsafe practices and we have safe practices.”
One example is the prevalence of child sexual abuse in religious settings, she said. “Child sex abuse is dominant across religious entities. It’s hard to find one where it’s not a problem. … Every religious entity that’s been brought to court has waved the First Amendment and said, ‘I do not have to provide discovery. I do not have to obey the law. Everything that we say in our religion is sacred and secret.’ So I have to take exception to any painting of religion as always good for the public. It’s not. And that’s why we have laws that are neutral and generally applicable that apply to everybody doing something wrong.”
Recent cases
The panelists disagreed on several recent applications of religious liberty in court cases, particularly as it relates to homosexuality. One of the most notable of those is the Masterpiece Cake Shop case from Colorado where a baker refused to make a wedding cake for a same-sex marriage. That case made it all the way to the Supreme Court.
Banks also asked the panelists about the stated desire of evangelicals to overturn the Obergefell decision that legalized same-sex marriage nationwide in 2015. This week, the high court refused to hear a challenge to that ruling.
“What I mean is we have a war between civil rights and religion that has been going on since 1997.”
Blackman said Obergefell “is not going anywhere,” and even if the court overturned it that would be a hugely unpopular decision that would blow back on the court.
But on cases like the wedding cakes, he advised, critics need to consider the vast majority of bakers will create cakes for same-sex couples. “There’s probably a handful of bakers that actually would not make this cake.” Therefore, a few bakers who refuse service should not be a concern.
Hamilton returned to her concerns about RFRA opening the door to just such claims, a warning she says she sounded way back in the 1990s.
“It was going to undermine women’s rights. It was going to undermine the burgeoning rights of gays. This was going to be a problem,” she said. “And the answer to that on the right and the religious groups that were lobbying out of self-interest was that, oh, that would never happen. There’s such a strong interest in civil rights and public accommodations laws.
“And what has this Supreme Court done? It has taken it apart.”
Now, the court acts like evangelicals should get privileges no one else should get, she said. “The way in which religion is being talked about is that you can’t touch it. You can’t do anything that would bring it to account.”
As a result, the religious liberty favored by conservative evangelicals allows public businesses to exclude certain customers based on the owner’s religious beliefs. “I challenge them to show me the difference between that and the Jim Crow laws. I also challenge anybody to track how this Supreme Court is deciding cases they believe. They believe as fundamentalist Catholics … . They believe it’s wrong to be gay. They believe it’s wrong to be trans.
This is the war happening, she concluded. “When I talk about a war, I don’t mean picking up arms. What I mean is we have a war between civil rights and religion that has been going on since 1997.”