The worst mistake the late, great Justice Antonin Scalia ever made may soon be fixed, and the left is freaking out about it. In Employment Division v. Smith, Scalia was blinded by an anti-drug haze and abandoned the First Amendment’s traditional legal standards protecting against government infringement on religious practices.
His decision gave the government enormous power to regulate religion through ostensibly neutral laws, making it so that when government intrudes into religious practice, it is religion that has to justify itself, rather than the other way round. By this reasoning, Congress could not pass a law specifically requiring Jews to eat pork, but it could pass a law requiring everyone to eat pork, so long as it was motivated by some neutral public justification.
This ruling was widely reviled, and bipartisan laws were passed to protect religious freedom at the state and national level, where the Religious Freedom Restoration Act was signed by President Bill Clinton. But that was before the left became determined to force religious conservatives to bend the knee to government. Now that traditional Christians are insisting on their rights under these laws, and even challenging Smith, leftists are denouncing religious liberty, which they often put into scare quotes.
Take, for example, Linda Greenhouse of The New York Times, who describes herself as “worried about the growing threat that an increasingly weaponized free-exercise clause poses to civil society.” She is horrified at the prospect of putting “the government to an extremely tough test to justify any infringement on a ‘sincere’ religious belief.” She addresses several cases, from fringe religious sects requesting their own services in prison chapels, to attempts by President Obama and other Democrats to force nuns to fund and facilitate the distribution of contraception, to the efforts to force Catholic charities out of the adoption business.
It is the last of these cases, Fulton v. City of Philadelphia, Pennsylvania, that presents a direct challenge to the Smith decision and offers the Supreme Court an opportunity to overturn Scalia’s error. The city claims that its law requiring adoption agencies to place children with same-sex couples is religiously neutral and generally applicable, and therefore permitted under Smith, regardless of its effects on religious adoption agencies.
If Smith is overturned, the government will not be permitted to substantially burden religion, even if the law is neutral and generally applicable, unless the law is also narrowly tailored to advance a compelling government purpose. This would provide religious practices much broader First Amendment protection from government regulation and interference.
But Greenhouse would prefer to keep Smith in place, so she argues that all of these cases are part of a sort of seamless garment of religious liberty—if we don’t force the Little Sisters of the Poor to pay for birth control, then creepy little sects will get a turn in prison chapels. Why the latter would be intolerable is never really articulated; it is simply taken for granted that it must be stopped at all costs.
Of course, for Greenhouse the rights of elderly nuns and Catholic adoption agencies aren’t the collateral damage of restricting the religious liberty of prisoners; rather, they are the targets. The legal left is committed to establishing the dogmas of the sexual revolution as official government orthodoxy and to punishing religious dissenters.
They have embraced the view that error has no rights, and they therefore argue that it is unjust to allow religious exemptions to general laws: shouldn’t the law apply equally to all? But while it is easy to dismiss religious freedom as just a silly sacred cow—until it is your ox being gored—this argument proves more than they intend.
To begin with, it demonstrates that the left’s supposed reverence for diversity and multiculturalism is incompatible with its big government agenda. The more the government regulates and mandates, the more it will infringe on the diverse religious practices and beliefs of a multicultural society. In practice, modern liberalism erases religious pluralism.
Greenhouse demonstrates a rudimentary understanding of this problem, insofar as she complains that the “Religious Freedom Restoration Act in particular, initially seen by a broad liberal coalition that supported it as protection for minority religious practices, has become a powerful tool in the hands of a politically energized Christian majority.” But even if conservative Christians are a majority (which we are not) our rights still deserve the same protection as those of anyone else. Far from bolstering her case, Greenhouse has confessed that the left wanted religious liberty only for those they favor (e.g., peyote-using Native Americans), not those they dislike (conservative Christians).
Furthermore, the left’s turn against broad protections for religious liberty undermines one of the primary justifications for political liberalism: it provides a way for those with vastly different views on life, the universe, and everything to live peaceably together. Liberal regimes do not claim to be ordered toward the highest good, but they do promise freedom for people and communities to pursue their own visions of the good, with the government only interfering when absolutely necessary.
Thus, abandoning robust protections for religious liberty discredits liberalism. As traditional religious believers increasingly find the peaceable practice of their faith infringed upon, they will conclude that liberalism’s promises of neutrality are false. In a nation where Democrats eagerly sue nuns and push Catholics out of adoption services, and where ostensibly serious presidential candidates are applauded for promising to tax nonconformist churches into oblivion, it is unsurprising that conservative Christians are willing to ally with President Trump and are increasingly receptive to criticisms of the liberal political order.
Some critics of liberalism like to say that we already live under an integralist state, just not a Christian one. Thankfully, this is not yet entirely true. Although our government imposes some dogmas and observances on the populace and penalizes others, there remains a good deal of religious freedom. But if Greenhouse and her ilk have their way, this will be progressively restricted as the government imposes one metaphysical viewpoint on the country, and punishes all dissenters.
It is imperative that Chief Justice John Roberts and the rest of the Supreme Court strongly rebuke this tendency. Taking the current opportunity to overturn Smith, thereby holding the government to a high standard when it wants to justify infringements on religion, would be a great decision. One of the surest ways to reduce political and cultural polarization is to reduce the stakes by ensuring that religious liberty is robustly protected.
As liberalism’s critics point out, absolute neutrality is impossible, even as a legal fiction. But by putting the burden of justification on government efforts to infringe on religious practice, we might still cultivate a broad, generous religious pluralism.
