The concept of religious liberty can be confusing and complex, but it becomes clearer when we think about it in an intuitive sense. There are good cases in which the religious person should win, bad cases in which the religious person should lose, and difficult cases that fall somewhere in the middle. The challenge is how to codify such instinctive judgments into formal, statutory language applied by courts of law.
That’s what the broad coalition that supported the Religious Freedom Restoration Act (RFRA) attempted to do in 1993. A large majority of Congress voted for RFRA, and President Bill Clinton signed the bill into law. Many of the same questions and concerns we hear today came up at that time. Back then, most people, whether on the right or the left, religious or secular, agreed that it was important to protect religious liberty and conscience rights. The challenge was how to do it—how to protect the litigants in the good cases and not protect them in the bad cases, and how to address the difficult cases in the middle.
To better understand the challenges of crafting formal legal protections for religious liberty, consider the following “Intuitive Guide to Religious Liberty Law.” It illustrates what Congress and the supporters of religious liberty were trying to do by passing the federal Religious Freedom Restoration Act in 1993, and the various state RFRAs that have been passed since then.
The Bad, the Good, and the Complicated
Here are three situations. Use your common sense to determine whether the people in these cases are truly engaging in the exercise of religion that society should protect, or not.
The first case is made up. The other two actually happened. In the first case, the police arrest an adherent of the Aztec religion and charge him with murder for killing another person with a knife. The Aztec adherent says he should not be charged with murder because he was exercising his religion by conducting a human sacrifice. What is our intuitive response to this case? Human sacrifice results in the death of innocent human beings, which is a pretty bad thing, so the Aztec adherent should lose this case. No religious liberty protection for him.
The second case took place in a public high school in Illinois in the late 1970s. School policy required all students to attend co-ed gym classes, and to wear uniforms, something like white T-shirts and red gym shorts. Some young women from a local Pentecostal church asked if they could wear more clothes in gym class than the mandatory uniforms, because their religious beliefs required them to dress modestly. The school responded by suspending the young women. The students filed a lawsuit, asking that the school accommodate their request to wear more modest apparel. Commonsense suggests that the young women should win, that the school should accommodate their request because the government interest looks pretty insignificant here and dressing more modestly wouldn’t compromise it, and that the school overreacted by suspending the students. In this case, the girls and their religious liberty should win.
The third case involves Amish people living in Minnesota who drive horse-drawn buggies on the roads. Minnesota law requires slow moving vehicles to place orange fluorescent triangles on the backs of their vehicles so that faster moving vehicles can see them from a distance. This sign requirement includes the Amish buggies, so that drivers in cars can see them and not plow into the slower-moving buggies.
The problem is that certain Amish communities regard the orange triangles as too flamboyant, exhibiting sinful pride that violates the precepts of their faith. The police arrested a number of Amish men for driving their buggies without the orange triangles. The Amish argued in court that the sign requirement violated their rights to free exercise of religion. The government argued that traffic safety is important to prevent people from being killed or injured on state roads. Who should win this case?
We understand that the state interest in road safety is significant. But the Amish also have strong beliefs. Is there any way we can accommodate them without putting people at risk on the highways?
The Minnesota Supreme Court looked for a way to fulfill the government’s interest in road safety without forcing the Amish to violate their religious beliefs. The justices found that the Amish were willing to place reflective silver duct tape on the edges of their box-like black buggies and use glowing kerosene lamps while on the road. The Amish should not be arrested, the Minnesota Supreme Court ruled, if they took these precautions.
The Court’s resolution of this case was reasonable; it simultaneously protected people driving on state roads and preserved Amish people’s right to free expression of their beliefs.
Translating Common Sense into Law
So how do you translate such common sense judgments into a formal legal standard that protects religious liberty? How do you write laws that ensure that plaintiffs in bad cases lose, in good cases win, and that cases in the middle are resolved through alternatives that further important governmental interests while also protecting the religious beliefs of conscientious objectors?
Intuitive judgment has evolved into a four-part “compelling state interest” test for religious liberty. This test was first used by the Supreme Court in Sherbert v. Verner in 1963, but the Court abandoned it in Employment Division v. Smith in 1991. However, Congress codified and reinstated the test through the 1993 Religious Freedom Restoration Act mentioned above.
The compelling state interest test does not guarantee that someone invoking religious beliefs will always win an exemption from general laws. Rather, it gives a four-part formula that helps courts separate the sheep from the goats.
First, the religious adherent must have a sincere religious belief that the government’s laws are infringing upon. So, if a tax dodger named “Bob” sets up the “Church of Bob,” makes himself the “High Priest Exalted of the Church of Bob,” donates all of his money to the Church of Bob, and then claims a huge tax deduction for his “sacrificial” charitable contribution, it would be reasonable for government officials to question whether this is a sincere exercise of religion. In most cases, the sincerity of the religious adherent is not in question. But sometimes it is, and this first part of the test helps smoke out insincere professions of religious faith.
Second, government action must not substantially burden the person’s exercise of religion. If the government orders people to do something that violates their beliefs or to stop doing something that their religion requires, and those people suffer some sort of punishment or significant disadvantage as a result, then the government is substantially burdening their religious exercise. So, a law banning communion wine, or a law prohibiting only religious users from renting vacant government buildings generally available to everyone else to use, would substantially burden their religious beliefs.
Third and fourth, the government can justify the burden on religious exercise by showing that it has a compelling state interest, implemented by the least restrictive means. The Amish case from Minnesota illustrates how these last two steps work. Everyone would agree that the government has a great interest in protecting people from slamming their cars into slow moving vehicles. But placing orange triangles on the backs of the slow-moving vehicles is not the only way to accomplish that goal. Because an effective, practical alternative to the orange triangles exists that does not violate the consciences of Amish buggy drivers (using silver duct tape and glowing kerosene lanterns), the government must allow the Amish to use that alternative.
New Religious Liberty Bills
Many today have forgotten these important deliberations that formed the consensus that forged the federal Religious Freedom Restoration Act in 1993. Instead, they have launched emotional attacks against state laws protecting religious liberty, like the Arizona legislation vetoed by Governor Brewer in 2014. They concocted wild examples to inflame lawmakers against the proposed laws, repeating such untrue things as that the passage of the law would protect the right of any business to deny service to any same-sex couple for any reason, or empower Muslim restaurant owners to deny serving women not wearing a burqa. Such arguments wrongly imply that religious believers would always win every case under a state religious liberty law. These opponents also wrongly imply that courts and lawmakers are incapable of distinguishing between a bad case and a good one. And if lawmakers vote down a religious liberty law based on these extreme, bizarre hypotheticals, then everyone loses, because no one can benefit from the protections of such a proposed law.
Our instincts tell us that some religious people should lose their cases because acting on their beliefs harm the public good in significant ways that cannot be accommodated. Similarly, it is clear that when the government interest is minor and a regulation only a matter of convenience, religious objections should prevail. Other cases are more difficult; they must be carefully examined to determine whether the government interest can be met in another way. That is what the proposed religious liberty bills at the state level are trying to do, and what Congress did in 1993 by passing the Religious Freedom Restoration Act.
These bills are not nefarious attempts to subvert public order and hurt others. Rather, such legislation recognizes that uniform enforcement of every governmental policy, no matter how trivial, can hurt individual citizens and stifle human flourishing. That’s why we need laws protecting religious liberty and religious conscience. Intuitively, that just makes sense.