How did we get here?

So now I’m trying to work my way back through the history of RFRA, to try to figure out why it had so much support, from the left as well as the right.

The ACLU has a relevant article on its site…but it has no date, which is very unhelpful. But for what it’s worth…

Religious freedom is a fundamental human right that is guaranteed by the First Amendment’s Free Exercise and Establishment clauses.[1] It encompasses not only the right to believe (or not to believe), but also the right to express and to manifest religious beliefs. These rights are fundamental and should not be subject to political process and majority votes. Thus the ACLU, along with almost every religious and civil rights group in America that has taken a position on the subject, rejects the Supreme Court’s notorious decision of Employment Division v. Smith. In Smith, Justice Scalia wrote that the accommodation of religion should be left “to the political process” where government officials and political majorities may abridge the rights of free exercise of religion.[2]

That’s just way too broad – that “but also the right to express and to manifest religious beliefs.” It’s just not true that there’s a sweeping general right to express and to manifest religious beliefs no matter what – it’s a conditional right that can be trumped by more basic rights. Some – indeed many – religious beliefs justify or mandate murder, torture, inequality before the law, subordination of women, genocide, you name it. In the US religious beliefs mandate the forced marriage of underage girls to men decades older; they mandate refusal to get medical treatment for children with treatable diseases; they mandate female subordination; they mandate refusal to vaccinate children.

So, weird city, on this one I agree with Scalia and disagree with the ACLU – but a lot of people are in that position, especially now in the wake of Hobby Lobby. Scalia himself has notoriously shifted.

The note under [2]:

[2] Employment Division v. Smith, 494 U.S. 872, 890 (1990). The majority opinion was written by Justice Scalia and joined by Chief Justice Rehnquist and by justices White, Stevens, and Kennedy. The Court held that a neutral law of general applicability may constitutionally result in incidental restrictions on free exercise where there was no contention that the government intended to target religious activity with the law. (The ACLU filed an amicus brief before the Court arguing that the free-exercise right should prevail.) The national opposition to the Smith case and its reasoning was overwhelming. The ACLU joined with a broad coalition of religious and civil liberties groups, including People for the American Way, the National Association of Evangelicals, the Southern Baptists’ Ethics Religious Liberty Commission, and by many other groups to urge Congress to reinstitute the rule that religious freedom could be constrained solely if the government had a “compelling interest” in doing so. The Congress agreed overwhelmingly with the ACLU’s position (that was rejected by Justices Scalia, Rehnquist, White, Stevens and Kennedy), and adopted the Religious Freedom Restoration Act of 1993 unanimously in the House and by a vote of 97-3 in the Senate.

Bad move.




  1. jedibear says

    It is worth noting here that, as Ginsburg argued in her dissent, the RFRA is being (deliberately) misinterpreted in the Hobby Lobby ruling.

  2. Konradius says

    That article is from november 4th 2006.
    I found that by googling the url and filtering from the year 1900 and later. This makes google list the date it was indexed.

  3. thephilosophicalprimate says

    Here’s what Ginsburg said, specifically: “Persuaded that Congress enacted the (Religious Freedom Restoration Act) to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.” Actually, I think she is simply wrong about that. To paraphrase a comment a friend of mine made on facebook, the RFRA was (at least in part) motivated by the purposes of religious radicals, and it is completely unsurprising that it is now serving those purposes. I think the unanimous passage of the RFRA was driven only partially by the law’s “common sense” defense of religious liberty, and the rest of the universal support came from the fact that VERY few of the legislators smart enough to see the law’s potentially problematic implications had the courage to express their dissent. (Only two, in fact: Democratic Senators Robert Byrd and Harlan Mathews voted against the bill. Jesse Helms only cast a pro-bigotry protest vote because he wanted an exemption for prisoners so the state could force Christianity on them.) Because God Bless America!

    This article (with lots of quotes from Barry Lynn on the RFRA’s history) provides some pretty good background and analysis:

  4. coelsblog says

    Dear Ophelia,

    That’s just way too broad – that “but also the right to express and to manifest religious beliefs.” It’s just not true that there’s a sweeping general right to express and to manifest religious beliefs no matter what – it’s a conditional right that can be trumped by more basic rights.

    I agree with you, the “religious freedom” right to “to express and manifest religious beliefs” is very widely misunderstood as granting extra rights to beliefs with religious content. It doesn’t mean that, and traditionally was not taken to mean that. What it means is a right to express and manifest religious beliefs to exactly the same extent as manifesting any other beliefs.

    The point is that traditionally religious freedoms were usually trampled by other religions. This meant you had *less* freedom to voice a religious belief (say voicing a Catholic doctrine in a Protestant country) than you had to speak generally.

    Religious freedom simply means your freedom of speech/action cannot be *reduced* owing to religious content. It does not mean you have *increased* freedom owing to religious content.

    My own opinion on this in Christians don’t understand religious freedom and in The Religious Freedom Restoration Act establishes religious privilege.

  5. The Great God Pan says

    “So now I’m trying … to figure out why [the RFRA] had so much support, from the left as well as the right.”

    Probably because nobody wanted to have a vote against “religious freedom” on their record. “Religious freedom” is good. Everyone likes “religious freedom,” right? If you were a congressthing, would you want an opponent running ads about how you voted against restoring “religious freedom?”

    As for Scalia’s shift: he is a shifty kind of guy. If the plaintiffs in Employment Division v. Smith had been conservative Christians (instead of Native Americans who took peyote as a religious sacrament), you can bet he would have voted in their favor.

  6. Latverian Diplomat says

    Employment Division v. Smith was at the time viewed on the left as hostile to minority religions. Christianity could protect itself through the political process, and screw everyone else.

    Of course, the Right sees Christianity as broadly suppressed and its members victimized by overbearing government secularism, and RFRA has a step forward in rectifying this situation.

    So everybody agreed to pass the law because its purpose and meaning was very much not agreed about (quietly). It’s no surprise then, that the five reactionaries on the court interpreted RFRA according to their crowd’s understanding of what RFRA has always been for.

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