Because of the Supreme Court’s ruling on the Hobby Lobby and Conestoga Wood Specialties cases, there was much celebration this week among those Christians who finally woke up to the cultural war against religious liberty when they learned of the victory these two businesses won before the U.S. Supreme Court. But those who woke up better not think they can now go back to sleep. I don’t think the victory was all that it was cracked up to be.
What seems to have been lost over all the euphoria, and I had not really appreciated until I read the Court’s opinion, was that this was not a victory for the First Amendment. So much of what I’ve read would leave the non-lawyers among us with the impression that the First Amendment still applies to protect us.
If so, then your impression is wrong. It was only a statute, the Religious Freedom Restoration Act (RFRA), not the First Amendment, that protected Hobby Lobby and Conestoga Wood Specialties (hereinafter Hobby Lobby). That is not such a happy thought for reasons I’ll explain.
Background to RFRA
Under RFRA, passed in 1993, Congress said that religious liberty would be protected unless the government’s law could survive analysis under what is called the “strict scrutiny” test. Without getting into the legal weeds explaining that test, let’s just say it is a tough test for the government to meet, so Hobby Lobby won. The government couldn’t meet the test.
But it is that very test—strict scrutiny—that our United State Supreme Court struck in 1990 from its First Amendment religious liberty jurisprudence. Now, under a pure First Amendment analysis, the government wins so long as the law at issue is neutral on its face and of general applicability.
Put another way, so long as the law doesn’t target a particular religious belief or practice or a particular religion, we have to do what the government tells us to do or suffer the consequences. Under the First Amendment, Hobby Lobby would have lost.
The Remaining Threat
What all this means is that the threat to religious liberty still hovers over our heads by virtue of the fact that a statute such as RFRA can be repealed or restricted in its scope by simple majority vote of Congress and approval by the President. If you don’t think that would ever happen, then think again.
RFRA was passed in response to the Supreme Court’s 1990 ruling abandoning the First Amendment free exercise clause. But since then, liberalism has become more liberal, and what were then “extreme views” have become more mainstream. As a consequence, some who voted for it, such as Sen. Chuck Schumer, upon learning of the Hobby Lobby decision, have said that RFRA was never intended to protect business owners and that a legislative “fix” is needed. He’s not alone.
Senate Majority Leader Harry Reid said, “If the Supreme Court will not protect women’s access to health care, then Democrats will.”
And White House Press Secretary Josh Earnest said, “Congress needs to take action to solve this problem that’s been created.” If that’s the President’s view and Congress doesn’t “fix” the problem, then expect another unconstitutional executive order from the President.
But some are not just looking at a “fix” to RFRA just to require family business owners to provide abortifacients, but to “fix” RFRA in general. The Center for American Progress has already released its own legislative proposal to place “reasonable restrictions on religious liberty protections” that would prohibit “exemptions [to RFRA] that discriminate against, impose costs on, or otherwise harm others, including those who may belong to other religions and/or adhere to other beliefs.”
In other words, family businesses will no longer have any rights if those rights would stand in the way of fully implementing the anything-goes sexual agenda.
Those who finally woke up to the threats of religious liberty and now think they can go back to sleep because of the Supreme Court’s ruling need to stay awake and put a pot of strong coffee on the burner. The battle for religious liberty is about to begin in earnest, and there will be no First Amendment safety net to protect the religiously devout if they fail.
Freedom From Religion Foundation recently published a full-page ad in The New York Times protesting the Supreme Court’s Hobby Lobby ruling June 30. Here is a partial picture of the ad. Click on the image to see the full PDF of the ad.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.