First Freedom Under Siege

A look at how the free exercise clause of the First Amendment has gone from a cherished, protected freedom to being constantly under attack by governments.

From The American Catholic

By Donald R. McClarey

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There is a reason why the Founding Fathers put freedom of religion first in the First Amendment.  They had experience of established churches, and they wanted to make certain that the Federal government would not form an established Federal Church and coerce American citizens to belong to it.  Contemporary Leftism seeks to bring back the bad old days and become an established Church in all but name and coerce people to follow Leftist edicts and to be punished if they do not.  Justice Alito in an address to the Federalist Society noted that religious liberty is under constant attack:

This is especially evident with respect to religious liberty. It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored, right. And that marks a surprising turn of events. Consider where things stood in the 1990s. And to me, at least that does not seem like the Jurassic age. When a Supreme Court decision called employment division versus Smith, cut back sharply on the protection provided by the Free Exercise Clause of the First Amendment. Congress was quick to respond. It passed the Religious Freedom Restoration Act (RFRA). To ensure broad protection for religious liberty. The law had almost universal support. In the house, the vote was unanimous. In the Senate, it was merely 97 to three, and the bill was enthusiastically signed by President Clinton today that widespread support has vanished. When states have considered or gone ahead and adopted their own versions of reference. They have been threatened with punishing economic boycotts.

Some of our cases illustrate this same trend. Take the protracted campaign against the Little Sisters of the Poor in order of Catholic nuns, the Little Sisters or women who have dedicated their lives to caring for the elderly, poor, regardless of religion. They run homes that have one high praise. Here’s some of the testimonials filed in our court by residents of their homes. The Little Sisters, quote, do everything to make us happy. I feel I’m part of the family and that’s a great feeling. They will keep you alive 10 years longer than anyplace else because they love you. Carol hassel in a nutshell, I would say this about the Little Sisters, a little bit of heaven fell from the sky one day and landed in my apartment.

Despite this inspiring work, the little sisters have been under unrelenting attack for the better part of a decade. Why because they refused to allow their health insurance plan to provide contraceptives to their employees. For that they were targeted by the prior administration. If they did not knuckle under and violate a tenet of their faith. They face crippling fines, fines that would likely have forced them to shut down their homes.

The current administration tried to prevent that by adopting a new rule. But the states of Pennsylvania and New Jersey supported by 17, under other states, challenged that new rule. Last spring, the Little Sisters won their most recent battle in the Supreme Court, I should add by a vote of seven to two, but the case was sent back to the Court of Appeals. And the Little Sisters legal fight goes on and on.

Here’s another example from our cases, the state of Washington adopted a rule requiring every pharmacy to carry every form of contraceptive approved by the Food and Drug Administration, including so called morning after pills, which destroy an embryo after fertilization. A pharmacy called Ralph’s was owned by a Christian family opposed to abortion, they refuse to carry abortifacients. If a woman came to the store with a prescription for such a drug, the pharmacy referred her to a nearby store that was happy to provide it. And there were 30 such stores within five miles of Ralph’s. But to the state of Washington, that was not good enough, Ralph had to provide the drugs itself or get out of the state.

One more example, consider what a member of the Colorado Human Rights Commission said to jack Phillips, the owner of the now notorious masterpiece cake shop, when he refused to create a cake celebrating a same sex wedding. She said that freedom of religion had been used, quote, to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, we can list hundreds of situations where freedom of religion has been used to justify discrimination, you can easily see the point. For many today, religious liberty is not a cherished freedom. It’s often just an excuse for bigotry, and it can’t be tolerated, even when there is no evidence that anybody has been harmed.

And the cases I just mentioned, illustrate the point. As far as I’m aware, not one employee of the Little Sisters has come forward and demanded contraceptives under the Little Sisters plan. There was no risk that Ralph’s referral practice would have deprived any woman of the drugs she sought, and no reason to think the jack Phillips is stand would deprive any same sex couple of a wedding cake. The couple that came to his shop was given a free cake by another bakery, and celebrity chefs have jumped to the couple’s defense.

A great many Americans disagree sometimes quite strongly with the religious beliefs of the Little Sisters, the owners of Ralph’s and jack Phillips and of course they have a perfect right to do so. That is not the question. The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs. Over the years, I have sat on cases involving the rights of many religious minorities, Muslim police officers whose religion required them to have beards, a Native American who wanted to keep a bear for religious services. A Jewish prisoner who tried to organize a Torah study group. The Little Sisters Ralph’s and jack Phillips deserve no less protection.

A Harvard Law School Professor provided a different vision of a future America. He candidly wrote, quote, the culture wars are over, they lost we won. The question now is how to deal with the losers in the culture wars. My own judgment is the taking a hard line you lost live with it is better than trying to accommodate the losers, taking a hard line seem to work reasonably well in Germany and Japan after 1945. Is our country going to follow that course? To quote a popular Nobel laureate? It’s not dark yet, but it’s getting there. So let’s look at what we’ve seen during the pandemic.

Over the summer, the Supreme Court received two applications to stay COVID restrictions that blatantly discriminated against houses of worship, one from California, one from Nevada.

In both cases, the court allowed the discrimination to stand. The only justification given was that we should defer to the judgment of the governors because they have the responsibility to safeguard the public health. Consider what that deference meant in the Nevada case. After initially closing the state’s casinos for a time the governor opened them up and allowed them to admit admit 50% of their normal occupancy. And since many casinos are enormous, that is a lot of people.

And not only did the governor open up the casinos, he made a point of an inviting people from all over the country to visit the state.

So if you go to Nevada, you can gamble, drank and attend all sorts of shows. But here’s what you can’t do. If you want to worship and you’re the 51st person in line, sorry, you are out of luck. houses of worship are limited to 50 attendees. The size of the building doesn’t matter. Nor does it matter if you wear a mask and keep more than six feet away from everybody else. And it doesn’t matter if the building is carefully sanitized before and after a service. The state’s messages this forget about worship and head for the slot machines, or maybe a Cirque du Soleil show.

Now deciding whether to allow this disparate treatment should not have been a very tough call. take a quick look at the Constitution. You will see the Free Exercise Clause of the first amendment which protects religious liberty, you will not find a craps clause or a blackjack clause or a slot machine clause. Nevada was unable to provide any plausible justification for treating casinos more favorably than houses of worship. But the court nevertheless deferred to the governor’s judgment, which just so happened to favor the state’s biggest industry and the many voters it employs.

If what I have said so far does not convince you that religious liberty is in danger of becoming a second class right, consider a case that came shortly after the Nevada case. The FDA has long had a role providing that a woman who wants a medication abortion must go to a clinic to pick up the drug. The idea is that it’s important for the woman to receive instruction about the drug at that time. The rule was first adopted in 2000. And it has been kept on the books ever since. A few weeks ago, however, a federal district judge in Maryland issued an order prohibiting the FDA from enforcing this drug any place in the country. Enforcement he found would interfere with the right of women to get abortions. Why? Because some women fearful of contracting covid if they left their homes, would hesitate about making the trip to a clinic. Now when the judge made this decision, the governor of Maryland presumably advised by public health experts had apparently concluded that Marylanders could safely engage in all sorts of activities outside the home, such as visiting an indoor exercise facility, a hair or nail salon and the state’s casinos. If deference was appropriate in the California and Nevada cases, then surely we should have differed to the federal Food and Drug Administration on an issue of drug safety. But no, in this instance, the writing question was the abortion right not the right to religious liberty, and the abortion right prevailed.

The rights of the free exercise of religion is not the only ones cherished freedom that is falling in the estimation of some segments of the population. Support for freedom of speech is also in danger. And COVID rules have restricted speech in unprecedented ways. As I mentioned, attendance at speeches, lectures, conferences, conventions, rallies, and other similar events has been banned or limited. And some of these restrictions are alleged to have included discrimination based on the viewpoint of the speaker.

Even before the pandemic, there was growing hostility to the expression of unfashionable views. And that too, was the surprising development. Here’s a marker in 1972, the comedian George Carlin began to perform a routine called the seven words you can’t say on TV. Today, you can see shows on your TV screen in which the dialog appears at time to consist almost entirely of those words. Carlin’s list seems like a quaint relic, but it would be easy to put together a new list called things you can’t say if you’re a student or professor at a college or university or an employee of many big corporations. And there wouldn’t be just seven items on that list. 70 times seven would be closer to the mark. I won’t go down the list, but I’ll mention one that I’ve discussed in a published opinion. You can’t say that marriage is the union between one man and one woman. Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.

That this would happen after our decision in Obergefell should not have come as a surprise. Yes, the opinion of the court included words meant to calm the fears of those who claim to traditional views on marriage. But I could say and so did the other justices in dissent, where the decision would lead wrote the following. I assume that those who claim to old beliefs will be able able to whisper their thoughts in the recesses of their homes. But if they repeat those of us in public, they will risk being labeled as bigots, and treated as such by governments, employers, and schools. That is just what is coming to pass. One of the great challenges for the Supreme Court going forward will be to protect freedom of speech. Although that freedom is falling out of favor in some circles, we need to do whatever we can to prevent it from becoming a second tier constitutional right.

Freedom of religion is not a battle won, but rather an ongoing struggle that is very much in doubt.