Constitutional Law Blog Essay

Judges and Religious Liberty

When it comes to debates over jurisprudence, the dividing lines can prove very real. Even when we transcend the typical political fault lines — even when we move to the substance that exists beyond the tired and boilerplate talking points — questions of judicial philosophy tend to divide. Those on the Right, generally speaking, emphasize the importance of the rule of law and the protection of liberty inherent in abiding by its strictures. Those on the Left commonly stress the need for flexible judicial methods, with an eye toward outcomes sensitive to the times and what the times require.

And yet, for all of our differences, the principles on which we agree are important and numerous. Certain basic principles, certain fundamental tenets, are shared across the divide. Though the terms of implementation tend to be controversial, we all agree that Due Process, for instance, is a worthy end in and of itself. Ours is a system that holds government to a high bar before it molests or penalizes its citizens. We all agree that First Amendment liberties are a prized element of the constitutional order. Ours is a system which errs on the side of free speech, and free assembly, and free press. Such a common devotion to common principles is what keeps us grounded; it’s what keeps the system — for all its divisions — from fraying entirely.

That is why I, along with so many others, find the recent trends in religious liberty so concerning. What was once considered a commonly espoused and honored cornerstone of our system has become, increasingly, a touchstone in the divide between Right and Left. It’s a dangerous development.

Religious liberty was, in several critical ways, the first freedom of our system. Its explicit protection is the first injunction commanded by the First Amendment. Ingrained deeply in our culture and in our institutions, its expression has proven central to the national character. Our Constitution allows no establishment of religion, and permits no undue restraint upon its exercise, such that our citizens may make their own determinations on matters of conscience.

This basic principle used to be widely shared. It used to be one of the few matters that spanned the divide. Following the Supreme Court’s decision in Employment Division v. Smith, I was a principal author of the Religious Freedom Restoration Act. That bill passed unanimously in the House of Representatives, and nearly unanimously in the Senate. For all of our divisions, for all of our disagreements, we all managed to find common ground in defense of religious liberty.

And yet today, where do we find ourselves? In a recent judicial confirmation hearing, a nominee was asked, explicitly, “do you consider yourself an orthodox Catholic?” That same nominee was told that, upon review of her record, “the conclusion one draws is that the dogma lives loudly within you.” Statements like that can be taken only as the imposition of some kind of religious test for holding office. Nothing could be more repugnant to our values of religious freedom and liberty.

The Supreme Court, in Trinity Lutheran v. Comer, recently rebuked the State of Missouri for relying on old statutory and constitutional vestiges of anti-Catholic bigotry to deny religious schools the same public aid as afforded to non-religious institutions. The state had denied those benefits for no reason other than affiliation with a religious institution.

In cases like Trinity Lutheran and controversies from Hobby Lobby to the Zubik v. Burwell, there is a new pressure on those living and espousing their faith. And yet, unlike in the past, there is no longer a chorus of voices—from both sides of the aisle—standing up for religious liberty. There is no longer a broad, bipartisan agreement that religious rights are not to be tampered with, demeaned, overlooked, or casually brushed aside. More and more, religious liberty is treated as an afterthought to those making policy and as an inconvenience to those carrying it out. More and more, it proves a quick rhetorical box to check before moving on to matters deemed more important.

This country’s protection of religious liberty — unique in the world and through most of history — is too rare, and was won upon the sacrifice of too many, to be quietly disregarded for falling out of the popularity of the times. I, for one, plan to keep speaking to this issue.

In 2015, I delivered a series of eight speeches on the Senate floor about the importance of religious liberty. My message then was the same as my message today: Religious liberty is a bedrock principle of the American political order. Its protection is of the highest order and the greatest priority. It is not merely one of many values, to be weighed against other competing social and political goals, and discarded when inconvenient.

Nearly all of my Senate colleagues at one time agreed on the preeminence of religious liberty among our constitutional freedoms. We should all hope that we get back to that point again.