In the coming weeks, with Amy Coney Barrett now nominated to the Supreme Court, we are sure to hear a lot about “religious freedom.” Much of what we hear and read will link religious freedom to the conservative politics of the Republican Party. But the principle of religious freedom is by no means the sole domain of “conservative politics,” nor is it owned and operated by Republicans alone.
It is a non-partisan principle, a two-edged sword, so to speak, that cuts against and scrambles the nice, neat categories of the hyper-partisan politics of our day. This becomes clear if we look at its recent emergence onto the political scene and then at the full range of its potential applications.
The principle of religious freedom was set forth, of course, when the framers enshrined it in the First Amendment of the Constitution. There it stands as the so-called First Freedom, taking the lead among a litany of freedoms (speech, the press, assembly, and petition). It is expressed in the words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
This brief formulation has vexed lawyers, judges, and legal scholars ever since, as they try to balance its two clauses, the establishment clause and the free exercise clause. But two centuries of legal argument took on a special urgency rather recently, when the Supreme Court handed down its notorious, much disputed Employment Division, Department of Human Resources of Oregon, v. Smith (1990).
The Smith case took up the question of whether or not two Native American employees of the Department of Education of the State of Oregon, would receive unemployment benefits after being fired for smoking peyote as part of their religious rituals. The case focused on the unemployment benefit, not the firing itself; hence the cumbersome name. It worked its way through the state courts, with one ruling being overturned by another higher court, until it arrived at the Supreme Court.
The majority found for the State of Oregon, arguing that the plaintiffs had no religious right to smoke peyote nor, therefore, to the unemployment benefits they sought. The Court also argued that religious freedom is not protected when an overriding concern of the state calls for restricting it, as in the use of a controlled substance like peyote, so long as the restriction is applied equally to all religions.
In reaching this ruling, the Court posited a distinction between belief and action, holding that one is free to believe what one believes, but not necessarily free to carry that belief into action. When religious belief moves from the invisible sphere of interior faith into the realm of visible, external action—at that point, the Court held, if the reasons are compelling, the state has the right to restrict religious freedom.
When Smith was handed down, some observers hailed it—George Will for example. Others expressed shock at such a naked assertion of the rights of the state to curb “religious freedom” whenever it—the state—determined when its concerns were overriding. What is especially worth noting, for our purposes, is that the majority opinion for the case was written by Antonin Scalia, paragon of judicial conservativism and chief proponent of originalism, a judicial theory that will surely be discussed in the nomination hearings in the coming days. Here we have a good reason not to see religious freedom simply as a Republican issue. Ironically, If the Supreme Court favors more protections of religious freedom in the coming years, it will be moving against the direction set by Scalia in the Smith case.
But there is more. The outcry against the Smith ruling was so swift and forceful that it led three years later to Congress passing the Religious Freedom Restoration Act (RFRA). The act stated that the government may wield its sword to limit religious freedom only when it meets two criteria: the State must have a compelling interest for limiting religious freedom, and it must use means that are the least restrictive. It was an attempt to limit the power of the state to restrict religious freedom. And here we find another reason to see religious freedom as a non-partisan principle: its provenance in the legislature was Democratic.
To be specific, RFRA was introduced by a Democratic Representative from Brooklyn by the name of Charles Schumer, who went on to be elected to the Senate in 1998 and who now serves as Senate Minority leader. Moreover, the RFRA bill that Schumer sponsored had 170 co-sponsors, Including Nancy Pelosi, Democrat of California and Speaker of the House; John Lewis, the recently deceased Democrat from Georgia who marched with Martin Luther King, Jr.; Barney Frank, Democrat of and author of Dodd-Frank bill limiting banking policy; Maxine Waters, the Democrat of California who has publicly called for resistance to President Trump’s policies; Ron Dellums, Democrat of California whose radical politics earned him a spot on the Nixon Enemies List; and 116 other Democrats.
Not only that, the RFRA had 48 Republican co-sponsors, including Newt Gingrich, Republican from Georgia who now serves as an advisor to President Trump; Peter King, Republican from New York, another outspoken supporter of Trump; and 46 other Republicans. We should also note that there was one lone independent supporter of RFRA, a senator from Vermont by the name of Bernie Sanders. And then, of course, the bill was signed into law by President Clinton. So much for religious freedom as a partisan principle endorsed only conservatives in the Republican Party.
If Congress passing the Religious Freedom Restoration Act showed religious freedom to a bipartisan principle, so too did the passing of the Religious Land Use and Institutionalized Persons Act (or RLUPA) in 2000. It was passed unanimously by Congress through a voice vote—so uncontested was the bill—and was signed into law by President Clinton. The purpose of the statue was to fill in loopholes in RFRA. Its scope was limited, focusing on the rights of people in prisons and of churches and church-related or “religious” entities concerning land-use. But it defined “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”
The latitude given to religious people and institutions broke through the severe straightjacket imposed by Smith with its artificial distinction between belief and action. It would become the grounds on which Muslim prison inmates could refuse to shave their beards; or religious groups could build mosques, synagogues, or churches that zoning commissions deemed ill-fitting; or religious communities serving the disabled could get relief from “concerned citizens” trying to kick them out of swanky neighborhoods. It has been used as a tool to guard against the coercive power of government, provided by the government itself.
The bipartisan effort to regain and expand religious freedom in the wake of the Smith case with RFRA and RLUPA has been obscured by the host of questions that have arisen in one court case after another in recent years—questions such as the following: Does a baker have the right to refuse making a wedding cake celebrating the marriage of a gay couple? Can the government compel a religious community to provide employees with health insurance that covers contraception and abortion-inducing drugs? Does a Catholic hospital have the right to refuse to provide an abortion if there is no other hospital in a particular region to do so? Does a doctor have the right to refuse to provide transitional therapies or surgeries for transgender patients? Does a religiously affiliated institution have the right to turn down a job applicant down because his or her beliefs concerning homosexuality? Does a parish, congregation, synagogue, or mosque have that right?
All of these questions, and many more, have been before U.S. courts in recent years. Some are on their way to the Supreme Court, which is why appointing a Supreme Court justice is so controversial these days. And these questions, as adumbrated above, tend to emerge out of a set of concerns that are pro-life, pro-marriage, and pro-traditional-family—concerns that lean or trend conservative and Republican. This is why the history sketched above—Schumer introducing the RFRA bill, plus Clinton signing RFRA and RLUPA into law—can seem so surprising. But there are plenty of other religious freedom issues that do not readily fit into the reigning Republican mold. Let me give three such issues that make clear the bi-partisan nature of the principle of religious freedom.
First, there is the issue of feeding the hungry on the streets of our cities. In 2012, political leaders in the City of Houston passed an ordinance making it illegal for volunteers to feed more than five homeless people at one time without a permit. In addition, they were required to obtain food safety training courses and written consent from nearby property owners before doing their work. The group rounded up 75,000 signatures on a petition in support of the volunteers, but to no avail. The case went to court on the basis of what the leader of the group, Phillip Bryant, argued, to wit: that the city was violating his religious right to follow Jesus' command to feed the hungry and give drink to the thirsty. His argument was met with the usual bureaucratic response: This is a health and safety issue.
Similarly, in November 2014, a 90-year old, World War II veteran by the name of Arnold Abbott made national headlines when he was arrested for giving food to homeless people. While giving out food, he said, “a policeman pulled my arm and said, ‘drop that plate right now,’ like it was a gun.” Three days later he was arrested again for the same “offense” and faced 60 days in jail and a $500 fine.
Or again, in April 2015, in San Antonio Texas, a similar incident occurred when Joan Cheever was accosted by police for feeding homeless folks. Even though she had been doing it for six years, she was cited for a class C misdemeanor, serving food out of her vehicle, and fined $2000. Her organization, called the Chow Train, was a 501c3 non-profit, whose motto was, “fighting hunger one plate at a time.”
Around this time, the National Coalition for the Homeless Issued a report, “Share No More: The Criminalization of Efforts to Feed People in Need,” that tracked similar laws in cities across the country. In 2014, some 22 cities had imposed “feeding bans.” Most of these cases worked their ways through the Courts, ending up unresolved or unpursued. But the arguments developed in these cases spring from the principle of religious freedom.
Second, there is the issue of providing sanctuary to immigrants threatened with deportation. In March of 2018, a Congregational Church in Springfield, Massachusetts gave sanctuary to Gisella Collazo, a Peruvian woman who came to this country in 2001, married a US citizen four years later, gave birth to two children—both thereby U.S. citizens, and dutifully checked in with Immigration and Customs Enforcement (ICE) officials when instructed. But when she did so in January 2018, ICE officials told her she would be returning to Peru on March 26. She took refuge with the Congregationalists instead.
The mayor, Dominick Sarno, declared that the City of Springfield “would not stand for harboring and protecting” immigrants, and began proceedings to strip the church of its tax-exempt status.” The matter went to the city council, which strongly backed the church over the hapless mayor. In the public discussion, members of the church cited scripture passages from the Old Testament on treating foreigners fairly (Lev 19:33-34) and from the teaching of Jesus in the New Testament, “I was a stranger and you welcomed me” (Matt 25:31-46). A similar matter arose in Raleigh, North Carolina. A United Church of Christ congregation gave sanctuary to a 39-year-old man from Mexico, converting part of its church into a bedroom, and taking a stand that, as they explained it, had been set forth in the 1980s, when Salvadoran refugees came north to the US fleeing the violence caused, in part, by U.S. policy.
But, of course, the practice of providing sanctuary is a longstanding tradition going back to the Middle Ages, when churches were immune from invasion by secular authorities, and back further to Old Testament times, when certain cities in Israel were declared “sanctuary cities” so that people sought for unjust revenge could take refuge (Deut 19:1-13, Jos 20). Drawing on this ancient tradition, some cities in the United States have declared themselves sanctuary cities. The authority with which cities may do this is a matter of dispute; they probably have little legal standing to do so in U.S. law.
But the churches within those cities certainly have a case to make. And church leaders, both Protestant and Catholic, have urged that the law, at times, must be broken for the sake of a higher law—an argument that Martin Luther King, Jr. expressed in his “Letter from Birmingham Jail,” but which, King noted, goes all the way back to St. Augustine and St. Thomas Aquinas. Scores of congregations throughout the country have taken a similar stand for sanctuary, thus generating creative tensions in the complex relations between church and state in the United States.
Third, there is the issue of conscientious objection to war. The right to conscientious objection to all wars (total conscientious objection) is affirmed in law in the United States. But the right to object to particular wars (selective conscientious objection) is not. This is a problem for those whose consciences call them to refrain from participating in unjust wars or unjust operations within wars. And it is a free exercise problem when such a selective conscientious objection is derived from and required by a person’s religious tradition, whether Christian, Jewish, Muslim, or another.
Consider these situations: A Catholic Army officer’s job is to write speeches for a three-star general justifying the planned U.S. invasion of Iraq to European audiences, a task he finds to be “Orwellian,” so he seeks discharge on Selective Conscientious Objection grounds that the war lacks a just cause. A Catholic officer in the Air Force is told to sign a statement assuring that she will launch nuclear weapons if so ordered; she refuses and is told to resign her commission; but she wants to remain an officer without the obligation to carry out an operation that the Church teaches to be immoral. A Catholic sergeant in the national guard receives orders to redeploy to Iraq and objects on grounds that the war is unjust, a conclusion he reached during his first deployment although he faithfully discharged his duties when he returned stateside. A Catholic young man receives draft notice, files for Conscientious Objector status, basing his claim on the injustice of the present war, but his claim is rejected, so he takes his case to court.
Does the constitutional right to free exercise of religion apply in these cases? Regarding the latter, the answer from the federal court was "no" (U.S. v. Stephen Spiro, 384 F.2d, 159 [3rd Cir. 1967]). And in the more recent cases cited above (all real-life examples, anonymized to protect people’s privacy), the answer coming from our nation’s highest court would probably still be no. The sobering truth, Judge John Noonan once observed, is that “no case is known to exist where the national court has weighed the national interest less than the religious interest.” But this is no reason to stop bringing cases to court, as Noonan himself did throughout his early legal career.
Any honest reading of the Gospels and Catholic teaching shows that freely exercising our religious freedom entails a set of practices that simply do not fit into our morally myopic and theologically obtuse political culture. Nurses declining to help a patient procuring an abortion, doctors stepping back as a terminal patient prepares to have a physician-assisted suicide—yes, these are practices protected by religious freedom. But parishioners fending off ICE agents as they try to deport a Guatemalan mother of three, military officers refusing to fire weapons indiscriminately on a village—these are matters of religious freedom too.
And what about this case? A Catholic judge recuses herself from the sentencing hearing of a capital case so as to avoid imposing the death penalty. This is a case taken up by Amy Coney Barrett (and John Garvey) in an article that political pundits are bringing forth as evidence of her religious extremism. Crazy Judge Barrett! She aligns herself with Pope John Paul II and Pope Francis in refusing to execute people, thus avoiding unnecessary bloodshed.
Religious freedom defies our conventional political categories because it derives from an authority that has priority to politics, namely, God. Devotees to the Constitution maintain that the United States is exceptional among nations for acknowledging its place “under God.” But an honest look at history shows how readily the government reverses that relationship and usurps the highest position for itself—and thus how important it is to challenge government when it does so. When the challenges are unsuccessful in court, so much the worse from the country.
But the challenges should go on. So it is that the King’s Bay Plowshares 7 have been found guilty and now await sentencing for protesting nuclear weapons. Their trial, in keeping with prophetic tradition, turned the tables during the court proceedings and put the state on trial for reckless endangerment of humanity and wanton disregard to the higher law of God. A central principle in their defense was the principle made available in the First Amendment: religious freedom.