- - Saturday, April 4, 2015

Let’s stick with the Constitution’s protection of the free exercise of religion as expounded by U.S. Supreme Court Justice Antonin Scalia in Employment Division v. Smith (1990).

The federal Religious Freedom Restoration Act (RFRA) and its state law varieties that have provoked furor should be repealed. They jeopardize the rule of law and make judges act as theologians by exempting persons from compliance with generally applicable federal or state laws who profess a significant religious motivation unless the law advances a compelling government interest.

The First Amendment is 225 years old. Among other things, it prohibits laws abridging the free exercise of religion (Free Exercise Clause). President George Washington explained the policy as follows:

“The Citizens of the United States of America have a right to applaud themselves for giving to Mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection, should demean themselves as good citizens.”

The authors of the Free Exercise Clause possessed wisdom and profundity that has never been equaled. They saw religious persecution and community convulsions erupting occasioned by laws intended to suppress certain religious practices. But they also knew that a religious motivation, simpliciter, could not justify flouting secular prescriptions without encouraging vigilante justice or anarchy—a classic case of the cure being worse than the disease.



Justice Scalia observed in Smith:

“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate …”

As described succinctly by Justice Felix Frankfurter in Minersville School District Board of Educ. v. Gobitis (1940):

“Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.”

The irrebutable reason for that doctrine was elaborated in Reynolds v. United States (1879):

“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. … Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Suppose a gay couple holds a religious conviction that instructs them to trespass on the property of the Roman Catholic Church. Must the trespass laws give way?

Suppose advocates of limited government hold a religious conviction that demands non-payment of any income, property, sales, excise, or other tax. Must the revenue laws yield?

Suppose a witness in a terrorist investigation holds a religious belief that perjury is justified to assist a co-believer. Is the perjury to be excused and terrorist shielded to safeguard the free exercise of religion?

There is no difference between these hypotheticals and a claim of a religious imperative to flout laws prohibiting discrimination based on sexual orientation.

As Justice Scalia elaborated in Smith, “The government’s ability to enforce generally applicable prohibitions on socially harmful conduct …’cannot depend on measuring the effects of a government action on a religious objector’s spiritual development.’ “

This does not mean that government can require religious or other organizations to associate with unwanted outsiders who would compromise their ideological or philosophical messages. Thus, the Supreme Court has held that the Boy Scouts of America cannot be compelled to accept gay scoutmasters, Boy Scouts of America v. Dale, and that private organizers of St. Patrick Day parades may not be forced to accept gay marchers, Hurley v. Irish-American Gay Group of Boston.

RFRA laws are unnecessary because the Free Exercise Clause has robustly protected religious freedom in the United States for more than two centuries. They should be repealed because their administration injects theology into the courtroom. The laws require judges to determine whether a person’s compliance with a secular law would offend a core as opposed to a marginal element of a religious creed by appraising the testimony of religious officials.

If there are more unfit questions for judges, they do not readily come to mind.

For more information about Bruce Fein, visit www.brucefeinlaw.com.

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