A common argument against broad religious freedom protections is that if we extend protections to some religious actions, we must extend them to all religious actions. It seems the primary questions surrounding this contentious issue are:
1) Does the Constitution protect religious actions or just religious opinions?
2) If it protects some actions but not others, how and where do we draw the line?
In the federal US legal system, the bases of religious liberty are the two religion clauses in the first amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Early in Supreme Court jurisprudence, religious actions were given few protections. They viewed the freedom as a switch. Either the switch was on, and the Constitution protected all religious actions, or it was off, and it protected no religious actions. So, as a safety measure, the Court set the switch to off.
But this understanding seems contrary to the spirit of the First Amendment. It’s called The Free Exercise Clause. Not the “Free-Thought” clause or the “Free-Opinion” clause or the “Free-Worship” clause. The Free Exercise clause!
Interestingly, through a series of cases between 1940 and 1990, the Court found, that we could in-fact protect some religious actions without [something] over-endangering the freedoms of other Americans. How? By using a balancing test. Here are the rules of the test:
1) The religious belief must be sincere.
2) If the government is substantially burdening the free exercise of religion, it must have a compelling interest in doing so.
3) If there is a compelling interest, then it must be done through the least restrictive means possible.
In 1990, though, the Supreme Court made a very controversial decision. They effectively rejected the use of this balancing test. Across the political aisle, Republicans and Democrats were disturbed by and concerned about this ruling. They wanted our nation to be a place where, to the greatest extent possible, we protected religious actions from government interference. So in 1993, they passed the Religious Freedom Restoration Act, or RFRA, writing the balancing test into Federal law.
But of course, the story doesn’t end there. The Federal RFRA only applies to the federal government, not the states. A handful of states have gone on to pass their own RFRA’s strengthening religious protections for their citizens. Due in part, to the continued growth of government, people with sincere religious beliefs are coming into conflict with government regulations at an alarming rate.
It’s clear that this debate is far from over because it’s a challenging question with far-reaching effects.
Whether we protect someone’s right to act on their beliefs shouldn’t come down to whether or not you or I or 51% of voters agree with those beliefs.
It’s possible to balance the rights of people who have sincerely held beliefs with the interests of the government – which are often our interests: health, safety, education, a peaceful society, and the common good.
It should be our goal to protect the free exercise of religion to the greatest extent possible because, in America, people should be free to live and work according to their beliefs – it’s one of the principles on which this country was founded.