Commentary Magazine


Topic: Religious Freedom Restoration Act

Liberals Have Discarded Religious Liberty

There are two ways of looking at the furor that has erupted over the signing into law of a Religious Freedom Restoration Act by the state of Indiana. One is to focus on the fact that this law is a bit different from a federal law of the same name that also has been passed in 19 other states in that its broader language allows claims of religious liberty to be invoked as a defense in civil lawsuits between private parties as well as those involving government action. But for anyone who has been listening to the debate about this law, if the one-sided opprobrium that has been hurled at Indiana in the liberal press can be dignified by such a term, there’s little question that legal debates about the need to balance the rights of individuals to observe the dictates of their consciences with those banning acts of discrimination have been thrown out the window in favor of a rush to anathematize anyone who dares to assert that the right to religious liberty can be viewed as being as important as the right to gay marriage. What we must ask ourselves, as Indiana and Governor Mike Pence are put in the stocks of popular culture and threatened with corporate boycotts, is how exactly are we to defend constitutional principles in an atmosphere in which the facts about the law and its implications are viewed as insignificant when compared to the perceptions of those advocating for the equal treatment on the basis of sexual orientation?

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There are two ways of looking at the furor that has erupted over the signing into law of a Religious Freedom Restoration Act by the state of Indiana. One is to focus on the fact that this law is a bit different from a federal law of the same name that also has been passed in 19 other states in that its broader language allows claims of religious liberty to be invoked as a defense in civil lawsuits between private parties as well as those involving government action. But for anyone who has been listening to the debate about this law, if the one-sided opprobrium that has been hurled at Indiana in the liberal press can be dignified by such a term, there’s little question that legal debates about the need to balance the rights of individuals to observe the dictates of their consciences with those banning acts of discrimination have been thrown out the window in favor of a rush to anathematize anyone who dares to assert that the right to religious liberty can be viewed as being as important as the right to gay marriage. What we must ask ourselves, as Indiana and Governor Mike Pence are put in the stocks of popular culture and threatened with corporate boycotts, is how exactly are we to defend constitutional principles in an atmosphere in which the facts about the law and its implications are viewed as insignificant when compared to the perceptions of those advocating for the equal treatment on the basis of sexual orientation?

Pence looked puzzled yesterday when he attempted to defend the statute on ABC’s This Week yesterday. But merely complaining about what he rightly termed the “misinformation” that has characterized the discussion about the subject isn’t sufficient to understand what has been happening.

It is true that the Indiana law is different from the federal and most other state RFRA versions. The broad nature of the statute, combined with the lack of a state law specifically recognizing gays as a protected class, has led to claims that it will enable discrimination. But this is a slender reed upon which to base such a strong reaction. In fact, this RFRA, like the others, merely requires those seeking to restrict expressions of religious belief to prove that there is a compelling government interest and that, if necessary, it should be done in the least intrusive manner possible.

The focus of those claiming that this is an anti-gay law is the belief that RFRA laws, especially broad ones such as the Indiana statute, might allow bakers or photographers to refuse to offer their services to those planning same-sex marriages. Whether those kinds of services constitute a public accommodation, such as a hotel or a restaurant that should not be allowed to discriminate against any class of persons, or are, instead, activities that are artistic in nature and therefore protected from such charges, is a question that the courts have yet to definitively answer. But no matter the answer to that question, the mere possibility that someone, somewhere might be allowed to harbor negative views about gay marriage because of their religious beliefs is viewed as not merely lamentable but an intolerable offense to public decency.

That is a sign of how abruptly the culture has shifted on the question of gay marriage in the course of the last decade. As a result, as the editors of National Review noted in an insightful editorial, what has happened is an effort to treat private opposition to gay marriage as being somehow analogous to Jim Crow laws that perpetuated the legacy of slavery and racial hatred.

One need not be an opponent of gay marriage to view the backlash against Indiana as an attempt not so much to defend gay rights as it is to coerce and to silence those religious believers who are dissenters from the recent change in public opinion on the issue.

As NR rightly pointed out, ever since the Hobby Lobby case, liberals who were once stalwart defenders of religious liberty against the coercive power of government or the beliefs of the majority have now discovered that there are other values they prize more highly than those rights enshrined in the First Amendment to the Constitution. With Hobby Lobby, the effort to force all employers to pay for abortion drugs and contraception outweighed the rights of individual business owners not to support practices that violated their religious beliefs. Now the mere chance that a RFRA act might allow some Christian bakers, florists, or photographers to abstain from taking part in a gay ceremony is enough to send the media into a frenzy and galvanize an effort to boycott an entire state.

The point here is that at stake in these legal tangles are competing rights that need to be balanced. Even if, as a society, we now believe there is no legal distinction to be drawn between the marriage of a man and a woman and one between two men or two women (but not, interestingly enough, of polygamous marriages), the right of those who wish to marry must be weighed against those who do not wish to participate in such weddings. Those who don’t share their beliefs may deem their refusal foolish or pointless, but religious freedom is privileged in the Constitution. What is frightening about the attack on Indiana is not the belief by some that such refusals are illegal but the willingness of so many in the public square, especially the media, to treat the rights of religious minorities—in this case, conservative Christians—as being unworthy of respect or even a hearing.

It may well be that Indiana will revise their RFRA statute to align it more closely with the federal law championed a generation ago by liberal stalwart Teddy Kennedy and those of other states. But that is unlikely to satisfy opponents who have come to view any defense of the religious liberty of conservatives as incompatible with their view of democracy. The unseemly gang tackle of Pence and the Indiana legislature isn’t so much a demonstration of the way a legal issue can be distorted by popular passion as it is an example of why RFRA laws are so necessary.

When placed against the demands of a majority (even newly-minted majorities such as the one behind gay marriage) the religious freedom of minorities can be trampled even in supposedly enlightened democracies. It is the purpose of the law in a free country to defend the rights of the individual, especially their religious rights, when other government concerns threaten to override them. That is exactly what RFRA statutes do. In their rush to stigmatize opponents of gay marriage, those who call themselves liberals seem to have forgotten that.

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Will Clinton Run as Elizabeth Warren?

The Democratic strategy of outright dishonesty about the Supreme Court’s Hobby Lobby decision was nowhere more extreme than in Hillary Clinton’s ludicrous response to the ruling. As I noted at the time, Clinton sounded as though she flew around the world as secretary of state but never got off the plane. She called the ruling “a really bad, slippery slope” and comparable to “a disturbing trend that you see in a lot of societies that are unstable, anti-democratic, and prone to extremism.”

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The Democratic strategy of outright dishonesty about the Supreme Court’s Hobby Lobby decision was nowhere more extreme than in Hillary Clinton’s ludicrous response to the ruling. As I noted at the time, Clinton sounded as though she flew around the world as secretary of state but never got off the plane. She called the ruling “a really bad, slippery slope” and comparable to “a disturbing trend that you see in a lot of societies that are unstable, anti-democratic, and prone to extremism.”

In reality, aside from the ignorance this displays about both the societies Clinton visited on her Instagram tour and the country she hopes to lead as president, the ruling was precisely the opposite. It reaffirmed America as a place of religious liberty and a beacon to those fleeing religious persecution in the countries Clinton visited and pretended to pay attention to while the world burned.

But there was another element of irony to Clinton’s remarkably misinformed and mendacious comments: they were a direct challenge to her husband, who as president signed into law, with the encouragement of many Democrats, the Religious Freedom Restoration Act on which the Hobby Lobby ruling was based. What Hillary likened to unstable and anti-democratic societies, her husband called “a standard that better protects all Americans of all faiths in the exercise of their religion.” On signing RFRA, Clinton said:

The free exercise of religion has been called the first freedom, that which originally sparked the development of the full range of the Bill of Rights. Our Founders cared a lot about religion. And one of the reasons they worked so hard to get the first amendment into the Bill of Rights at the head of the class is that they well understood what could happen to this country, how both religion and Government could be perverted if there were not some space created and some protection provided. They knew that religion helps to give our people the character without which a democracy cannot survive. They knew that there needed to be a space of freedom between Government and people of faith that otherwise Government might usurp.

Why has Hillary Clinton moved so far to her husband’s left that she openly equates the religious freedom he championed with the world’s authoritarians? One answer is: anger–specifically, the anger of the Democratic base, which has shifted far to the left from where it was two decades ago. That’s the upshot of an in-depth and informative Politico piece today on Hillary’s balancing act between wanting to remind voters of the economic stability of the 1990s and decrying the pro-business policies that helped bring it about, policies that have fallen out of favor with the Occupy Wall Street base of the Democratic Party and thus with the party’s congressional leaders as well. Headlined “A Clinton approach for angrier times” (though the headline seems to have changed this afternoon) the piece notes:

On a broad range of issues from tax policy and Wall Street reform to religious rights, more than a dozen senior Democratic strategists and people who have worked with the former first family told POLITICO that Hillary Clinton will have to craft a platform that reflects the party’s shift left and populist sentiment across the political spectrum that distrusts entrenched interests and worries about growing wage inequality. Some described this balancing act as one of the most significant issues for the potential presidential candidate.

“This is the most important set of conversations going on right now. We are in a different economic era that requires a different kind of response,” said Simon Rosenberg, founder of the New Democrat Network who shaped the economic message for Bill Clinton in the 1992 campaign. “Apple isn’t making the same products they were 20 years ago, so you should not expect any Democrat to obey policies that are over 20 years old.” Rosenberg added that no one in the Hillary Clinton orbit underestimates the task she faces.

Clinton is an insider who is close to Wall Street and who can’t seem to get people to stop shoveling money at her and her family. This might not be an issue in a general election, because Republicans and independents don’t demonize the very idea of wealth and success the way Democrats do. What Clinton seems to fear is someone like Elizabeth Warren–but not necessarily as a candidate. The risk Warren poses to Clinton is surfacing in the populist fury Warren is kicking up around the country as she campaigns for Democratic candidates who need star power but who still want to pretend they don’t know who Barack Obama is.

The Washington Post reports on “a string of recent Warren appearances in red and blue states alike, where Democratic base voters have embraced her fiery message as an envoy to working-class voters frustrated with both Wall Street and the Obama administration.” Warren has ditched the policy-wonk pretense of her pre-Senate days and embraced intellectually shallow, populist messages and policies. What’s troubling for Clinton is that Warren’s shoddy demagoguery is connecting with an extreme-minded, angry liberal base. Whether she directly challenges Clinton for the nomination or not, Clinton is clearly already letting Warren set the agenda.

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Liberals’ Hobby Lobby Scare Campaign

Tomorrow the U.S. Supreme Court finally takes up a case that has been headed toward their courtroom since the 2010 passage of ObamaCare. Two private companies are challenging the Department of Health and Human Services’ mandate that requires all companies to pay for a range of services including contraception and abortion-inducing drugs that violate the religious beliefs of their owners. The two companies, the Oklahoma City-based Hobby Lobby craft store chain and Pennsylvania’s Conestoga Wood Specialties Corporation are seeking to defend the First Amendment rights to exercise of religion against the government’s attempt to impose its beliefs and policies on all employers by threatening to ruin them with fines and penalties if they dare to refuse to obey the mandate.

But according to the administration and its liberal cheerleaders in the media, the stakes involved in this case involve nothing less than the future of women’s rights as well as those of gays. As the lead of a New York Times news story that would have been better placed on their opinion page read, this is a “case that pits religious liberty against women’s rights.” That frame of reference dovetailed nicely with a Times editorial that claimed Hobby Lobby and its supporters were “crying wolf about religious liberty” that would allow business owners to impose their beliefs on their helpless employees. Even worse, they claim it will gut health care and deny basic services to many Americans.

This is nothing less than a scare campaign aimed at intimidating the conservative members of the high court—or perhaps just Chief Justice John Roberts, whose worries about exposing his institution to political criticism allowed ObamaCare to survive a justified challenge to its constitutionality in 2012—to back away from a rigorous interpretation of the law that would obligate them to strike down the mandate. Far from setting off legal chaos that will undermine the foundation of human rights in this country, should Hobby Lobby and its fellow plaintiffs win, the result would be a reaffirmation of individual liberty and the basic protections afforded all Americans by the Constitution.

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Tomorrow the U.S. Supreme Court finally takes up a case that has been headed toward their courtroom since the 2010 passage of ObamaCare. Two private companies are challenging the Department of Health and Human Services’ mandate that requires all companies to pay for a range of services including contraception and abortion-inducing drugs that violate the religious beliefs of their owners. The two companies, the Oklahoma City-based Hobby Lobby craft store chain and Pennsylvania’s Conestoga Wood Specialties Corporation are seeking to defend the First Amendment rights to exercise of religion against the government’s attempt to impose its beliefs and policies on all employers by threatening to ruin them with fines and penalties if they dare to refuse to obey the mandate.

But according to the administration and its liberal cheerleaders in the media, the stakes involved in this case involve nothing less than the future of women’s rights as well as those of gays. As the lead of a New York Times news story that would have been better placed on their opinion page read, this is a “case that pits religious liberty against women’s rights.” That frame of reference dovetailed nicely with a Times editorial that claimed Hobby Lobby and its supporters were “crying wolf about religious liberty” that would allow business owners to impose their beliefs on their helpless employees. Even worse, they claim it will gut health care and deny basic services to many Americans.

This is nothing less than a scare campaign aimed at intimidating the conservative members of the high court—or perhaps just Chief Justice John Roberts, whose worries about exposing his institution to political criticism allowed ObamaCare to survive a justified challenge to its constitutionality in 2012—to back away from a rigorous interpretation of the law that would obligate them to strike down the mandate. Far from setting off legal chaos that will undermine the foundation of human rights in this country, should Hobby Lobby and its fellow plaintiffs win, the result would be a reaffirmation of individual liberty and the basic protections afforded all Americans by the Constitution.

As I have noted previously, you don’t have to agree with the owners of Hobby Lobby or other persons of faith about abortion or contraception in order to understand that a defeat for them would endanger everyone’s rights. If their religious liberty is considered less important than the government’s desire to create a universal mandate for employers to pay for such services, then there is no limit to what the government can demand and no room for faith in our public square anymore. In this case the plaintiffs are merely asking the courts to remember that the Religious Freedom Restoration Act (RFRA) set a standard by which government would be forced to prove that they were not imposing a substantial burden on the free exercise of faith by demanding that believers bow to their dictates. This is clearly not the case with ObamaCare, since its contraception mandate forces religious business owners to participate in the provision of services that clearly violate their consciences.

Protecting their rights to abstain from the mandate does not in any way endanger the rights of women or their health since Hobby Lobby employees are free to purchase such drugs on their own. What the government wants is not to protect the freedom to use contraception—which is not in question—but to be able to make religious organizations as well as private businesses pay for it and thus compromise their principles. Their reasoning is twisted, but at its heart is the belief that government can run roughshod over rights in order to obtain some larger good such as free health services. Upholding such a mandate would mean a re-writing of the First Amendment that would protect private expressions of faith but prohibit its exercise in the public square. The administration seeks to interpret the law in such a manner as to require people to choose between their faith and the survival of their enterprises. Our framers believed that government moral coercion of this sort was beyond the pale. That is why they sought to create a constitutional framework that ensured that while we would have no established church, neither would our government seek to constrain religious freedom.

As we saw with the recent furor over a revision in the Arizona version of RFRA, it is entirely possible for concerns about the rights of women or gays to be used as a weapon in order to squelch discussions about religious liberty and the Constitution. But the Supreme Court should be immune to such cynical scare mongering by the administration and the liberal mainstream media. Let us hope the justices ignore the attempt to buffalo them into suppressing religious freedom in the name of upholding ObamaCare.

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Are Catholics Standing Alone?

Last month, after the nation’s Roman Catholic bishops announced plans to promote a “Fortnight for Freedom” this summer that would focus on the defense of religious liberty, it was an open question as to whether they would wind up standing alone after the Obama administration sought to force their institutions to pay for insurance coverage for practices forbidden by their faith. Other faith groups may well decide it is dangerous for them to stand up for religious liberty because of the unpopularity of the church’s stand on contraception. In particular, Jewish organizations, normally so zealous in defense of individual rights and religious freedom, will be seen as bellwethers.

So far, the answer is at best mixed, with only those religious groups identified with a more conservative viewpoint such as the Rabbinical Council of America, the religious body associated with the Orthodox Union, backing the church’s stand while the far more influential Jewish Council on Public Affairs, the umbrella body for Jewish Community Relations Councils across the country, backed Obama’s unsatisfactory compromise proposal rather than the church’s defense of its rights.

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Last month, after the nation’s Roman Catholic bishops announced plans to promote a “Fortnight for Freedom” this summer that would focus on the defense of religious liberty, it was an open question as to whether they would wind up standing alone after the Obama administration sought to force their institutions to pay for insurance coverage for practices forbidden by their faith. Other faith groups may well decide it is dangerous for them to stand up for religious liberty because of the unpopularity of the church’s stand on contraception. In particular, Jewish organizations, normally so zealous in defense of individual rights and religious freedom, will be seen as bellwethers.

So far, the answer is at best mixed, with only those religious groups identified with a more conservative viewpoint such as the Rabbinical Council of America, the religious body associated with the Orthodox Union, backing the church’s stand while the far more influential Jewish Council on Public Affairs, the umbrella body for Jewish Community Relations Councils across the country, backed Obama’s unsatisfactory compromise proposal rather than the church’s defense of its rights.

This week, as Alana noted yesterday, Roman Catholic dioceses, schools, social service agencies and other institutions filed lawsuits in 12 federal courts, challenging the Obama administration’s dictate that they provide coverage for contraception in their health insurance policies. If they were to protect their rights, they had no choice but to go to court. The challenge will be affected by the outcome of the Supreme Court’s decision on the legality of ObamaCare, but if all or parts of that legislation are upheld, the plaintiffs will be asking the courts to uphold their rights under the 1993 Religious Freedom Restoration Act, which forces the government to provide a compelling reason to force believers to violate their faith.

The administration has sought to marginalize the church’s position by launching a political campaign aimed at portraying the Republicans as waging a war on women because of conservative support for the church’s position. That has enabled some to claim that backing for the church is a partisan stand against the president. But this is looking at the issue through the wrong end of the telescope. It is not the administration that sought by means of ObamaCare to compel church institutions to pay for contraception that started this unnecessary fight, nor the bishops who would be quite happy to stay out of the political line of fire.

Having framed the issue as one in which backing for the church is tantamount to voicing opposition to the president or as being opposed to contraception — something the vast majority of Americans, including most Catholics, support–the administration may think it can defend its stance with impunity. But it is important for groups that would under other circumstances not hesitate to defend religious institutions from government compulsion not to leave the church to face the might of the government alone.

One needn’t oppose the president’s re-election or endorse the Vatican’s stance on contraception in order to understand that a ruling against the church would grant the government nearly unlimited power to restrict religious freedom. In the weeks and months ahead as this issue continues to be debated, it is vital that more faith groups rally around the church and make it clear to the administration and the courts that when it comes to protecting First Amendment rights, the church does not stand alone.

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