Religious Freedom’s Tenuous 21st-Century Foothold

COMMENTARY: At no point in the recent history of the United States has our freedom of religious belief looked so fragile — and this despite the fact that the Trump administration has shown an unusually strong commitment to preserving that freedom.

Religious freedom continues to be put before the high court.
Religious freedom continues to be put before the high court. (photo: Unsplash)

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof … ” The First Amendment’s two religion clauses work in tandem, prohibiting the government from establishing a state religion and from interfering with the exercise of religion. 

There’s no danger these days of the government imposing a religion on us (unless you count the veneration of various progressive ideologies as religion). But the second clause is a different matter. 

At no point in the recent history of the United States has our freedom of religious belief looked so fragile — and this despite the fact that the Trump administration has shown an unusually strong commitment to preserving that freedom. 

Since 2017, the federal government has done its best to preserve the rights of freedom of worship and the exercise of belief. But religious liberty cannot be left to the mercy of politicians of any party. These rights enshrined in U.S. public life by the First Amendment require a judiciary willing to enforce it.

Therefore, the Supreme Court is crucial — and never more so than now, when so many fashionable activists are apparently happy to suppress both religious freedom and conscience rights. 

Two cases in the past term have shown that the current Supreme Court is not prepared to let them get away with it. It decided that the Free Exercise Clause was violated in Espinoza v. Montana Dept. of Revenue, when Montana excluded religiously affiliated schools from participating in a state-endorsed scholarship program for private schools. And in Our Lady of Guadalupe School v. Morrissey-Berru, the court ruled that two Catholic schools in California were free to hire and fire their own religion teachers, as these positions were covered by the ministerial exception — a protection flowing from both the Establishment and Free Exercise Clauses. Justices Neil Gorsuch and Brett Kavanaugh, both Trump appointees, were in the majority in both cases.

Now an even more potentially impactful case is heading its way. The Supreme Court will hear oral argument this November in what is likely to be its most consequential religious-freedom case in decades. 

In Fulton v. City of Philadelphia, it will decide whether the First Amendment prevents city officials from cutting a decades-old tie with the Catholic archdiocese’s foster-care program. 

The Catholic-run agency, citing Church teaching on the nature of marriage, refuses to submit to the city’s demand that it agree to certify same-sex couples as foster parents. When the court in Obergefell v. Hodges held that the Constitution required states to recognize the legal character of same-sex unions, it also noted the First Amendment’s protection for those holding steadfast to a traditional understanding of marriage as between a man and a woman. Such protection surely must include the right to partner with local government in service to the vulnerable. 

Safeguarding religious freedom isn’t the exclusive responsibility of the courts, or indeed of the Republican Party. Back in 1993, two Democrats — New York Rep. Chuck Schumer and Massachusetts Sen. Ted Kennedy — were principal sponsors of the Religious Freedom Restoration Act (RFRA). 

Considered a “super statute” for its application across the entire federal government, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” 

An exception is made if two conditions are both met. First, the burden must be necessary for the “furtherance of a compelling government interest.” The second condition is that the rule must be the least restrictive way in which to further the government interest. A unanimous House and almost-unanimous Senate voted in favor of the law. President Bill Clinton signed the law into effect. 

With the backing of such luminaries, one might assume that Democrats would be RFRA watchdogs. But today’s Democrats have less and less in common with those of 1993. Their support for RFRA has waned. Their attention has shifted to promoting “reproductive rights” and “LGBTQ” rights. 

When the Supreme Court in Hobby Lobby v. Burwell said that the Affordable Care Act’s contraceptive mandate “substantially burdens” religious belief, Obama administration officials dragged their feet instead of achieving an acceptable accommodation for religious objectors such as the Little Sisters of the Poor. 

The Trump administration, in contrast, worked swiftly to craft an acceptable exemption. The Supreme Court affirmed the federal government’s authority under the ACA to draft such exemptions. Justice Samuel Alito, in his concurring opinion, went one step further and asserted that RFRA requires the federal government’s rule exempting religious and moral objectors. 

Depressingly, however, some state officials continue to oppose the rule exempting religious objectors to the contraceptive mandate. And, even more depressingly, they are overwhelmingly supported by Democrats in Washington.  

Earlier this year a staggering number of Democrats in the Senate and House joined together as co-sponsors of an amendment to RFRA. Their Do No Harm Act states that RFRA “should not be interpreted to authorize an exemption from generally applicable law that imposes the religious views, habits, or practices of one party upon another.” Rep. Joe Kennedy III, grandnephew to Sen. Kennedy, was the primary sponsor in the House. “We cannot be equal or free if our government grants select Americans a license to discriminate against their neighbors under the guise of religious freedom,” said the “progressive” young congressman. These are chilling words. Put bluntly, it looks as if today’s Democrats have abandoned their commitment to religious liberty.   

Republicans, on the other hand, are standing firm. In addition to creating and defending exemptions for religious and moral objectors to the ACA’s contraceptive mandate, the Trump administration has promoted religious freedom in many other ways. 

The Catholic Association recently highlighted many of its religious freedom and pro-life accomplishments. It’s an impressively long list. The administration has upheld the conscience rights of health-care workers. Faith-based organizations applying for federal grants have been treated sympathetically and fairly. Eloquent defenders of religious liberty include not just Attorney General Bill Barr but also lawyers across all divisions at the Department of Justice. State Department Secretary Mike Pompeo, along with Ambassador at Large for International Religious Freedom Sam Brownback, have worked hard to advance the cause of religious freedom globally, which had been largely ignored under President Barack Obama. 

This is an important legacy — but I need hardly remind you that the political landscape is rife with politicians whose main interest in religious freedom seems to be in curtailing it. That’s the thing about legacies: They can vanish almost overnight. 

Andrea Picciotti-Bayer is the director of the Conscience Project.

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