Sunday, April 6, 2014

"...[N]o law...prohibiting the free exercise..."

In an article that is probably behind a subscription wall (I subscribe) David French explains why the Religious Freedom Restoration Act shouldn't have been necessary in the first place, why it was then passed unanimously by the House and 97-2 by the Senate, signed by President Clinton, and is under attack today. From the article:
.... Rather than finding a compelling government interest in enforcing drug laws, the Supreme Court (with Justice Scalia writing the majority opinion) articulated a new religious test, one that essentially relegated the free-exercise clause to the scrap heap.

Under this new test, if a law was “neutral” and “generally applicable” (in other words, not aimed at religious practice), the free-exercise claim would fail. This meant no more balancing tests, and thus no more compelling-government-interest requirements for state actions. In short, this meant dramatically diminished constitutional protections for religious minorities. ....

RFRA was the result. The goal was hardly revolutionary: It was simply to restore the status quo prior to the peyote case, with the same balancing test and the same compelling-interest requirement. ....

YET now, 21 years later, RFRA and its various state incarnations are the Great Satan and Little Satans of American statutory law, the diabolical gremlins that the Left claims will bring back Jim Crow, spur “secessionist” impulses, and potentially cause the engine of American progress to stutter and stall.

What happened? Why do the principles that the Left applied to protect peyote now threaten the republic when they protect a chain of hobby stores from having to pay for products that are widely (and cheaply) available on the open market?

To borrow an excellent phrase from Greg Lukianoff, a liberal civil libertarian and the president of the Foundation for Individual Rights in Education, America began “unlearning liberty”—including religious liberty. It’s a story that’s been told a thousand times. Free speech and diversity of thought—useful concepts to dissenters charging the barricades—became annoyances (and worse) when the dissenters gained tenure, or became GS-14 deeply embedded in the alphabet soup of federal agencies, or ran television studios and wrote our songs and sitcoms. ....

And so, in cases across the land, sexual liberty has directly confronted religious liberty, and religious liberty has often lost. Whether Christian photographers are compelled to photograph gay weddings, Christian students of counseling are compelled to mouth pro-gay platitudes, or pro-life activists are compelled to shut their mouths when close to abortion clinics, the argument has been the same: Religious liberty is hateful and hurtful, and it must recede so that sexual self-actualization may proceed not merely unimpeded but increasingly uncriticized. .... (David French, "Restore the Religious Freedom Restoration Act," National Review, April 21, 2014, pp. 25-27)