- The Washington Times - Tuesday, July 4, 2017

Evangelical Christians and conservative Catholics are increasingly heading to the federal courts to try to carve out space for their religious activities, looking to press judges to imbue more meaning into the federal government’s guarantees of protection.

Last week’s 7-2 ruling in the Supreme Court that states can’t deny churches money for secular purposes just because they are houses of worship is the latest in a string of victories for the religious groups.

But justices on both sides of the issue in last week’s ruling said the court is creating a muddy middle ground, with ambiguous interpretations and tricky legal tests that will have to be worked through in practice.

Driving the religious issues debate are roughly a dozen conservative Christian legal organizations focused on defending religious freedom and arguing that it’s the faithful, not nonbelievers, who now face the biggest dangers from discrimination.

“The fact of available legal advocates make it much easier for people who feel they have been wronged to bring challenges,” said Robert Tuttle, a law professor at George Washington University.

Although most of the public focuses on the First Amendment’s seemingly competing pressures of allowing for “free exercise” of religion while prohibiting a government “establishment,” analysts say the real legal battle is over a 1993 federal law, the Religious Freedom and Restoration Act, which requires the federal government to take religious beliefs into account. Many states have similar laws binding local officials.

The law has been a boon to the Christian conservatives. Most notably, it helped them challenge the Obama administration’s “contraceptive mandate” requiring most employers to pay for health care plans that give employees free birth control — including methods that some religions find morally objectionable.

In the 2014 Hobby Lobby ruling, the court, in a 5-4 decision, ruled that family-owned corporations must be offered an accommodation if they have religious objections to paying for employees’ contraception.

Daniel Blomberg, an attorney with the Becket Fund, said RFRAs are used by more than just Christian groups. He pointed to a case where the law helped secure Sikhs serving in the U.S. military the right to grow a beard and wear a turban.

“Because of RFRA, we were able to find a way to continue to honor the military mission without forcing Sikh-Americans to violate their faith,” said Mr. Blomberg.

But Barry Lynn, executive director for Americans United for Separation of Church and State, which regularly battles the groups, said the courts have stretched the law beyond how Congress intended it — particularly in the Hobby Lobby case.

“There was no discussion about how [the Religious Freedom and Restoration Act] would protect any corporate entity,” he said.

Mr. Tuttle also takes issue with the act, saying judges have turned it into a minefield.

“RFRA itself is a complete mess — and after the court’s decision in Hobby Lobby,” said Mr. Tuttle. “It shouldn’t be that someone is just able to say, ‘My religious practice has been offended.’”

Jennifer Drobac, a law professor at Indiana University, doesn’t think the Religious Freedom and Restoration Act is needed at all because the original authors of the Constitution did a “fabulous job” with the First Amendment’s Free Exercise and Establishment clauses.

“The argument that we need RFRA is really an argument by the religious right that they don’t have enough support, and I think that answer is not well-substantiated,” Ms. Drobac said.

Even there, however, the courts have left a muddle.

In 1971, the justices laid out what became known as the Lemon test, named after one of the parties in a case, creating a three-pronged analysis to determine whether a government action was too closely entangled with religion and was thus unconstitutional.

Mr. Tuttle said that while the lower courts still rely on the Lemon analysis at times, the Supreme Court has not made consistent use of it.

“Lemon, it has just been either ignored or reinterpreted, and you have now perhaps six or seven different theories that the court is using,” he said.

He said the area of law and religion has become “a black hole for time and attention.”

Jeffrey Tuomala, a law professor at Liberty University, said the key problem for religious jurisprudence is that the courts have never defined “religion.”

“That’s a critical point that needs to be hammered, and challenge the court to do it. Until they do, I just don’t think there’s any basis or standards you can have here,” said Mr. Tuomala.

Justice Neil M. Gorsuch, the court’s newest member, seemed to hint at that problem in last week’s ruling.

The court, in its 7-2 decision, said a Missouri church couldn’t be denied access to a state program aimed at refurbishing playgrounds just because the money would go to a religious organization.

Justice Gorsuch agreed with that ruling but said the court seemed to be trying to draw untenable lines between religious status and religious use.

“Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner?” he wondered. “The distinction blurs in much the same way the line between acts and omissions can blur when stared at too long, leaving us to ask (for example) whether the man who drowns by awaiting the incoming tide does so by act (coming upon the sea) or omission (allowing the sea to come upon him).”

On the other side of the ruling was Justice Sonia Sotomayor, who said her fellow justices had torn down the walls the founders erected to protect churches from state interference, and vice versa.

“The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church,” she wrote. “Its decision slights both our precedents and our history, and its reasoning weakens this country’s long-standing commitment to a separation of church and state beneficial to both.”

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