Would the First Amendment Pass Today?

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“Would the First Amendment pass today?”

This question was posed by attorney and religious freedom advocate Oliver “Buzz” Thomas at last week’s “Restored or Endangered? The State of Free Exercise in America” symposium at the Newseum's First Amendment Center commemorating the 20th anniversary of the Religious Freedom Restoration Act (RFRA).  RFRA was signed into law by President Bill Clinton in 1993 after passing in the Senate with 97 votes and a unanimous voice vote in the House.  As the symposium continued, a consistent theme emerged: religious freedom is not an issue as dependably bipartisan as it was in the 90s. 

The day began with a panel of four men involved in the drafting and passage of RFRA  In 1990, the Supreme Court ruled in favor of the State of Oregon in the case Employment Division, Department of Human Resources of Oregon v. Smith.  In this case, state government denied unemployment benefits to Native Americans who smoked peyote, a hallucinogenic drug used in Native American rituals.  In the majority opinion, Justice Scalia asserted that laws may be passed that have a “neutral law of general applicability”, even if they incidentally infringe upon religious practice.  He went so far as to say, “Religious freedom is a luxury we can no longer afford.”  While most of the country took little note of this case, religious leaders were startled by the case.  Steve McFarland, Vice President & Chief Legal Officer at World Vision and a member of the original coalition, noted that the treatment of religious minorities is often the canary in a coal mine for religious freedom.  Religious leaders saw this treatment of Native American practice as a warning sign of what may happen to religious practice more broadly without action.

In response to the Smith decision, a broad coalition of religious and civil rights organizations formed to push back against the ruling and protect religious practice.  This group, the Coalition for the Free Exercise of Religion, brought together such diverse organizations as the Southern Baptist’s Christian Life Commission (the previous iteration of their current Ethics and Religious Liberty Commission) and the American Civil Liberties Union.  In addition to these staples of American political life, many religious minority organizations joined the effort, including the American Muslim Council and the National Sikh Center.  

The coalition drafted and lobbied for RFRA, which protects religious freedom by restoring the “Sherbert Test” (referring to the Supreme Court case Sherbert v. Verner).  This test states that “Government shall not substantially burden a person’s exercise of religion” and when it does, the burden must use the “least restrictive means necessary”.  Rather than being the articles of faith of the members of the coalition, Buzz Thomas, who chaired the coalition, described RFRA as their terms of peace.  

This ended up being true. The law had an immediate positive impact- in the three years between Smith and the passage of RFRA, 50 free expression cases lost.

After three years of success, RFRA was dealt a significant blow.  In the case City of Boerne v. Flores, the Supreme Court ruled it unconstitutional for RFRA to be applied to state and local laws.  In response to this, the Coalition for the Free Exercise of Religion reconvened to push two more laws.  On one law, the Religious Land Use and Institutionalized Persons Act, the group did succeed.  While it met great success, there was a falling out on the second piece of legislation, the Religious Liberty Protection Act (RLPA).  The Senate failed to pass RLPA because civil rights groups that supported RFRA felt it would be harmful to the LGBT community.  This became a foreshadowing of the increased politicization of religious freedom that we are seeing today.

 President Bill Clinton signed the Religious Freedom Restoration Act into law on November 16, 1993. Photo via  research.archives.gov .

President Bill Clinton signed the Religious Freedom Restoration Act into law on November 16, 1993. Photo via research.archives.gov.

Doug Laycock, professor of Law at the University of Virginia, delivered the day’s keynote address in which he confronted the division over religious liberty head on.  Laycock pointed to the inadequate and non-existent religious exemptions in state marriage laws as a sign that religious freedom is in trouble.  However, he did not solely blame LGBT advocates for the increasing threats to religious freedom.  Instead, he laid most of the blame at the feet of conservative religious organizations who refuse to compromise on same-sex marriage laws, no matter the concession. By refusing to bargain, conservative religious groups take away any chance of a strong accommodation.  This has also contributed to a winner take all mentality on both sides of the issue. When neither allows for any compromise, religious freedom loses.

Startlingly, as interpretations of religious freedom have diverged, the First Amendment has become less popular.  Data from the First Freedom Center shows that more Americans than ever (36 percent) believe the First Amendment goes too far.  Additionally, 31 percent of Americans believe the First Amendment does not protect extreme religious views.  

Looking at these numbers, it’s hard not to ask, as Buzz Thomas did, if the First Amendment would pass today.  Personally, I have a more positive outlook on the future of religious freedom than the panelists did.  However, this will not come from a détente between conservative Christians and LGBT activists.  Vitriolic language too often undermines what centrists will attempt to achieve in this arena.  Instead, I think a rebound for the appreciation religious freedom will come as religious minorities grow and find their voice on these issues.  This would mirror the trajectory that led to RFRA.

The last panel of the day brought a new voice to the conversation, that of a Muslim American.  Aisha Rahman, executive director of KARAMAH: Muslim Women Lawyers for Human Rights, acknowledged that since September 11, 2001, the Muslim community has been “other-ized”, endangering their first freedom.  This has manifested itself in a variety of forms including the anti-Sharia laws and zoning laws targeting mosques.  She also acknowledged that the Muslim-American community has not thoroughly thought through complex issues such as how Sharia family law should fit into their lives, given the First Amendment.  Religious Freedom advocates, especially evangelicals and Catholics, should work to the support of the Muslim community.  Protections for Islam would, almost by definition, protect other religions including Christianity.  These initiatives would surely garner bi-partisan support as RFRA did 20 years ago, and help further true pluralism and a more perfect union for our generation.

Preserving religious freedom should be a top priority for our generation.  After decades of culture wars, Christian Millenials are recovering the important tradition of publicly expressing our faith through compassion and justice.  It would be terrible if we are expected to keep our faith in church as we seek to work towards a more just society.  As our generation becomes increasingly diverse and as religious minorities grow in America, it’s crucial that they can authentically express their full identity.  Throughout America’s history, persecuted religious minorities have come here looking for safe haven.  While anyone who predicts religious persecution a la the French persecution of the Huguenots is over-exaggerating the problem.  However, we would do well to avoid the illiberal laws in Europe that outlaw headscarves in public and infant circumcision.  The panelists from the event might think that this future is not too far off.  However, I think we could be headed for greater collaboration in the religious freedom arena as religious minorities continue to grow and find their voice on these issues.  

-Paul Hartge is the Director of Development at the Institutional Religious Freedom Alliance and is pursuing a Masters in Public Policy at the Georgetown Public Policy Institute.  He graduated from Calvin College in 2010 with a double major in political science and religion.