Revival of the Free Exercise Clause

Dianne Post, Secular AZ Legal Director

In a follow up to the previous webinar about the decline of the Establishment Clause of the First Amendment, the American Bar Association’s next topic was the revival of the Free Exercise Clause. Two lawyers presented on the secular side and two on the religious side. 

As expected, the religious side said that the Employment Division v. Smith case in 1990 was a sea change in the law; the Religious Freedom Restoration Act (RFRA) was necessary to correct the balance; and the Fulton v. City of Philadelphia, PA case (now at the Supreme Court) would restore the law to what it had been pre-Smith.

“A Great Imbalance in Freedoms”

The secular side disputed every point; i.e. the Smith case was no change at all, RFRA has caused an imbalance, and the Fulton case, if decided wrongly, would create a great imbalance in freedoms.    

Those arguing for religion to be supreme were Stephanie Barclay — now a professor at Notre Dame law school but previously with Beckett Fund — and Douglas Laycock at U of TX law school, who argued the ministerial exemption cases. Barclay thought government should have to explain why their regulations should be able to “burden” religion because religion stands in a “preferred position.” In her mind, we should look only at the alleged harm to religious people, not to all people. That attitude is counter to every principle of our founding documents and the evolution of our Constitution.

Laycock thought the court has been wrong on the cross and prayers cases, but is right on the money cases because handing out money is a neutral general rule and withholding money punishes religion. He also claims that the decisions regarding church closures during COVID should not focus on how bad the health crisis is or the impact on the pandemic, but on how religion has been burdened. This argument suggests that the public health of the entire country — indeed the world — is less important than the ability of a few to meet in large crowds.

This is no religion I grew up with.

No Restrictions on Religion… At All

Richard Katskee from Americans United for Separation of Church and State pointed out that the two clauses, Establishment and Free Exercise, should not be at odds, but should be in harmony. He argued that churches already get lots of special privileges from the government, and that no one has the right to get government money (or any money) and then refuse to do the job they were hired to do.

But the Christian Nationalists are arguing that there can be no restrictions on religions at all, which is clearly wrong. This would give them a “favored” place, as everything else is and can be regulated.  These same Christian Nationalists certainly believe women’s bodies can be regulated.

Ira Lupu from George Washington University Law School argued that Smith was not a sea change at all and was not based on a religious exemption, but on “good cause” for an unemployment benefits decision. He claimed it was the Warren Court that expanded not only criminal and civil rights, but religious rights, as well. The attempts today to overturn Smith are an expansion of religious rights, especially Burwell v. Hobby Lobby.

The biggest disagreement came when Laycock suggested that religious agencies should just be left to refuse customers/clients based on any reason they like, so long as they refer them elsewhere. Katskee disputed that by saying compare it to race; would we say that religious agencies can refuse service by saying “we don’t serve your kind here,” go elsewhere?

In some situations, other options don’t exist; in Madonna v. US District CT SC, the evangelical placement agency that refused Catholics was the only one in the region. Many Catholic hospitals are the only medical care available for women for miles around, and when they refuse reproductive care, they put women’s lives at risk.

Laycock retorted that race is different because we had a civil war and 150 years of civil rights struggle. Is that his suggestion on how to resolve things — have a civil war?  He might get his wish.   

As Katskee pointed out, the question is not should religious groups be prohibited from government money because of religion; the question is should religious groups be able to get government money and refuse to complete the job they were hired to do. The framing of the question often dictates the answer.

We are in for a rough road. We need to outsmart and out-organize the opposition. We need all of you to help.

Dianne Post

10/19/20