Sam Casey sat at the head of the largest conference table in Washington and watched open-mouthed as half the room emptied, and religious freedom was grievously wounded. It happened in an instant that July day in 1999, but had been building quietly for weeks as one of the most potent left-right coalitions in the country was sundered.
The recent legal and legislative history of religious freedom in America can be described in many ways, but ping-pong comes to mind.
The Constitution prevents the federal government from establishing a state religion but also prevents the government from hampering its free exercise. What free exercise means – and who can be hampered and how – is one of our most nettlesome issues.
Modern adjudication begins in the early 1960s with a woman named Adell Sherbert, a textile worker who converted to the Seventh Day Adventists. Her factory shifted to a six-day schedule requiring her to work on Saturday, something not allowed by her faith. The mill fired her. The state denied unemployment benefits and she sued on grounds of religious liberty. The Supreme Court ruled in her favor.
The Court established the Sherbert Test with some criteria to determine if the government had violated a person’s religious liberty. The person had to have a sincere religious belief upon which the government had placed a substantial burden for acting on that belief. The government must show there was a “compelling state interest” to burden the believer and that the government has acted in the least restrictive manner to further this compelling interest.
This is a high bar.
In the 1980s, along come Alfred Smith and Galen Black, who smoked peyote as part of their Native American religion and who also worked in drug rehab. When the clinic found out, the pair were fired. The state denied benefits. In Employment Division v. Smith, the Court gutted the Sherbert decision and eliminated the test that had protected religious liberty. The decision hung on the fact that the two gentlemen were doing something that was illegal and the law against peyote smoking was not aimed strictly at the religious use of peyote, but peyote use in general.
The 1990 Smith decision precipitated a huge reaction from the religious community and civil libertarians. Christians of right and left, along with the secular left, were galvanized. This unique coalition, which included the ACLU, World Jewish Congress, along with the Christian Legal Society and the Traditional Values Coalition, demanded redress.
Keep in mind the actors in this group had been at loggerheads for years over abortion. Even so, on religious liberty, they agreed. Within three short years, they convinced Congress to pass the Religious Freedom Restoration Act, which restored the Sherbert Test. It passed the House of Representatives unanimously and the Senate 97-3. President Clinton signed it.
Four years later, it was largely overturned. In the City of Boerne v. Flores (Boerne, Texas refused to let the Catholic bishop tear down a landmark building to expand Church facilities), the Supreme Court determined that in establishing the Act, Congress had gone beyond their power under Section 5 of the Fourteenth Amendment. They decided the Act affected the Federal Government, but not the states.
The religious freedom coalition started work on the Religious Liberty Protection Act with a view to meeting some of the Supreme Court’s objections, primarily that there was a need for such protections, that actual harms were being done.
The coalition presented voluminous evidence to the House of Representatives of religious discrimination against churches and persons around the country, what Sam Casey says was a “complete record.” The bill passed the House 306-118, a smaller, but still a substantial majority that included 107 Democrats.
And then they hit a wall known as Teddy Kennedy and a lesser wall known as Joe Biden.
In a few short years, something had changed.
The coalition called a meeting on July 22, 1999, around that huge conference table in Washington D.C,, seating upwards of sixty people, at the Veteran of Foreign Wars’ headquarters. Sam Casey – now at the Jubilee Campaign, then at the Christian Legal Society – chaired the meeting.
Casey says, “Everyone was there, left, right and center. We had fought together all those years successfully. We had won in the House and were stuck in the Senate and we needed to figure out next steps.”
But the meeting opened with Oliver “Buzz” Thomas of the Baptist Joint Committee announcing he had concluded the Religious Freedom Restoration Act, which they were meeting to try to restore, was in fact unconstitutional. This despite the fact that he helped formulate it, and had testified in its favor. He then announced his group was leaving the coalition and promptly walked out.
Half the room followed.
At that moment, Casey and the others realized how powerful the gay lobby had become. The new objection from the left was that religious freedom would be used to trump the rights of gays. Such objections were not part of the debate only a few years before. But now they stopped legislation to protect religious believers, and sundered one of the most potent left-right coalitions in U.S. history.
The remaining groups, exclusively from the Christian right, agreed to a truncated bill that protected religious practice for prisoners. That was all.
Casey had gone into that final meeting believing his was a majoritarian position and came out realizing he was a remnant American, trying to preserve what he could.
One of the sad ironies in how this has developed is the question of animus. The Smith decision requires complainants to show actual animus towards them for their religious beliefs. On the gay question, however, federal judges and Justice Kennedy have held that religious opposition to gay marriage is on its face evidence of animus toward gays and cannot stand.
It is a topsy-turvy world with the gays on topsy.