By: John Yoo & James C. Phillips – nationalreview.com – November 29, 2018
In the wake of the confirmation of Justice Brett Kavanaugh to the Supreme Court, religion will probably present the first test of the new Roberts Court’s commitment to the original meaning of the Bill of Rights. Religion has not become a constitutional battlefield just because conservatives tend to be more religious than liberals (though they are). Religion has not assumed legal importance solely because of the ongoing cultural conflict between traditional and secular visions of our society, either. Religion has taken center stage also because it has become the spiritual and moral refuge from an ever-expanding administrative state.
That state seeks to impose a soulless uniformity on America’s true diversity — of religions and private institutions — in its quest to mimic European welfare states. Elected politicians either have supported the effort or have found it easy to stand by and avoid accountability while the administrative state continues to advance bureaucratic visions of universal health care, welfare programs, or state-run education. Conservatives have had to retreat to the Constitution and the courts to defend the place of conscience in public life.
Their source of support comes from an astonishingly brief text. The First Amendment begins: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” With these few words, the Founders sought both to protect the freedom to practice religion and to keep the state from interfering with faith in a nation peopled by religious dissenters: the Puritans who settled Massachusetts, the Quakers of Pennsylvania, the Catholics of Maryland, and the Baptists of Virginia. Both the free-exercise and establishment clauses, as they are now known, allowed the great diversity of religions in America to take root and flourish, even as they have died a slow death in Old Europe and much of New Asia.
Even though the main commands of the religion clauses may seem clear, the Supreme Court has distorted them for over a century. While the Roberts Court has done better than previous courts, it has yet to fully embrace their full, original meanings. In last term’s Masterpiece Cakeshop v. Colorado Civil Rights Commission, for example, a baker refused to create a wedding cake for a gay-marriage ceremony. He justified his violation of state antidiscrimination law on the ground that it forced him to compromise his religious beliefs. Rather than take a stand on behalf of the baker’s right of free speech and free exercise of religion, the Court — in an opinion written by Justice Anthony Kennedy — instead found that an obscure Colorado state antidiscrimination agency had exhibited hostility toward the baker’s faith during a public hearing. The Court’s opinion could be read to mean that states can violate the right to freedom of religion in the future, so long as they play nice in public.
Or take the nuns of the Little Sisters of the Poor, a Catholic religious order that operates homes for the elderly poor. Obeying Catholic teaching, the Order refused to provide contraceptives in its health-insurance policies, in violation of the Obama administration’s demands under the Affordable Care Act. In 2016, the Roberts Court refused to reach the obvious judgment that the Obama mandate violated the federal Religious Freedom Restoration Act of 1993 (which requires the government to have a compelling interest to impose such a burden on religious groups and to do so in the most narrowly tailored way), or the First Amendment itself. Instead, it remanded the cases because the Obama administration promised that insurers themselves would bear the costs of contraceptive coverage — demonstrating once again the Obama administration’s, if not the Court’s, failure to understand simple economics. The Court’s evasion puzzles even more because, in the 2014 Hobby Lobby case, it had held in an opinion by Justice Samuel Alito that the Obamacare mandate violated the statutory religious rights of a private corporation.
The new Roberts Court can begin to bring order to its protection of religion by flatly overturning two decisions: Lemon v. Kurtzman on the establishment clause and Employment Division v. Smith on the free-exercise clause. Justice Kavanaugh’s confirmation may now give conservatives enough of a Court majority to restore the First Amendment’s original meaning. It could do so with the support of Congress, which in 1993 sought to overrule Smith with the Religious Freedom Restoration Act, which passed the House or Representatives by unanimous voice vote, the Senate by 97–3, and was signed into law by President Bill Clinton.
It could also bring intellectual harmony to two clauses that the courts have often interpreted as being in conflict. For instance, the establishment clause has been read to prohibit government from doing anything that advances religion. Yet the free-exercise clause actually advances religion by accommodating religious practices that may be in conflict with otherwise acceptable law. Likewise, some have interpreted the establishment clause to prohibit any government funding flowing to a religious organization. But discriminating against religious entities just because of their faith, and giving them second-class status compared with secular entities, has been found to violate the free-exercise clause. In short, to the extent the establishment clause is viewed as hostile to religion and the free-exercise clause as solicitous of religion, the First Amendment is at war with itself. And that makes little sense historically or logically.
Rather than create a paradox, the religion clauses complement each other in supporting religious freedom. The Founders knew both from history and from their own experience that the government could harm religion not only by direct acts of suppression, but also indirectly by favoring some over others or by interfering in churches’ internal affairs. The Founders designed the First Amendment’s two religion clauses to protect religious pluralism without banishing religion from the public square.
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Editor’s Note: The following is the fifth in a series of articles in which Mr. Yoo and Mr. Phillips will lay out a course of constitutional restoration, pointing out areas where the Supreme Court has driven the Constitution off its rails and the ways the current Court can put it back on track. The first entry is available here, the second here, the third here, and the fourth here.
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