The States & Free Exercise of Religion

The pro-life movement stupidly wasted almost 50 years attacking Roe v Wade instead of using that energy to pass a Human Life Amendment protecting the unborn in all the territories of the US. I've addressed my reasoning here and here.

From The New Oxford Review

By John M. Grondelski, PhD

Paul Benjamin Linton is author of the magisterial Abortion under State Constitutions — which has gone through three editions — and the recognized pro-life authority on that subject. While Roe v. Wade held abortion policy hostage to an imagined federal “right,” Linton reminded us that every state has its own constitution, some of whose supreme courts read those documents more expansively than the federal Supreme Court. Example: While the U.S. Supreme Court held that Congress did not have to pay for Medicaid abortions, the New Jersey Supreme Court ruled that the Garden State’s Legislature was bound under the state constitution to do so. Since the happy fall of Roe, however, abortionists have also rediscovered state constitutions and have succeeded in writing abortion-on-demand into the Ohio and Michigan constitutions.

I mention Linton because his insight about the importance of state constitutions remains valid across multiple areas. Every state has a constitution and they matter. Many are easier to amend than their federal counterpart. Some can even be changed by popular initiative-and-referendum.

The spring issue of National Affairs carries an article Catholics should read: Frank DeVito’s “Protecting Religion in the States” [here]. In it, DeVito argues how state laws and constitutions can be used to enhance freedom of religious practice, even before the currently permissive boundaries the federal judiciary now seems willing to entertain. After all, what the courts giveth, they can taketh away. It was not so long ago that we were in a 75- year-long misconstrual of the First Amendment, during which federal judges warped freedom of religion into freedom from religion. No, the First Amendment does not demand a secularized public arena, what Richard John Neuhaus called “the naked public square.”

After the end of various COVID “public health emergencies,” I called for state Catholic conferences to push legislation to prevent governors from ever again using their “emergency” powers to shut down churches and synagogues [see here]. I insisted that religious worship is an “essential service,” access to which can not be abridged. I argued that religious worship be subject to strict scrutiny standards so that public officials can not impose more rigid rules against it than other essential services. I pressed for that higher standard because reducing the test to religion being treated like other “comparable” activities was too weak a protection; some blue states were quite creative (and disparaging) in what they compared churches to. One state denied a comparison to food stores, because churches were neither essential nor transitory. They were rather like movie theaters, unessential but with prolonged, enclosed exposure. We should not leave the door open to replaying those abuses.

We must never allow political poohbahs to shutter churches. If state Catholic conferences have failed to do what I recommended three years ago — and let’s be honest, what more pressing issue than the right of churches to stay open did they have to deal with these past three years? — then once more lay Catholics should do what the professional Catholic “establishment” seems peculiarly inept at handling. Let’s do what the abortionists have done to protect their interests since Dobbs: Let’s amend state constitutions! Let’s put that question on the ballot!

As noted, in many states voters can launch a constitutional amendment by themselves, without the consent of the political class. They can file initiative petitions and, if they gather enough signatures, the question goes on the ballot for the voters to decide.

Such an effort would likely be a positive ecumenical and even interreligious effort. Many Protestants and Orthodox Jews were far more litigious far earlier than Catholics about the infringement of their religious freedom during COVID. They would stand up. I would applaud this kind of “practical ecumenism” as far more effective and practical than many kinds of showcase ecumenical and interreligious dialogues. A durable practical bonding by average, lay Christians and Jews, together with other religious believers of good will, may also prove valuable in forging resistance against other immoral agendas advanced under the aegis of the political. If that’s how they’re pushed, that’s the forum where they need to be resisted.

Such mobilization may be particularly providential now, as faux Catholics are organizing to use those same constitutional processes to try to ride to political victories by writing abortion-on-demand into other state constitutions. That looks increasingly likely this year in places like Nebraska, South Dakota, Florida, Arizona, or Missouri. Assembling people of good will in defense of their faith may be an appropriate counterbalance to those efforts.

The American tradition has hitherto stood for robust protections of the free exercise of religion. We should not forget that the states play critical roles as “laboratories of democracy” within our federal system. That fact — and their greater proximity to the local voter — should make them ripe for advancing religious protections, especially in terms of the most basic right of a house of worship to keep its doors open, whether or not Caesar approves.