(This is the continuation of the last post, Obama’s Reformation Threatens Religious Liberty – Part I)
Conflicts between government and religious liberty are not new. There have been conflicts on this issue since before the founding of the republic. Later, Congress would propose legislation that eventually became the First Amendment to protect our religious liberty.
Traditionally, conflicts between government power and individual liberty have pitted majority against minority. This theme was embodied in the Supreme Court’s canonical cases on religious liberty such as Sherbert v. Verner (1963). This case concerned a conflict between South Carolina’s statute requiring unemployment beneficiaries to make themselves “available for work” and Seventh-day Adventists’ observation of the Sabbath on Saturdays.
In Wisconsin v. Yoder (1972), the Court faced a conflict between Wisconsin’s statute requiring parents to enroll their children in school and Amish families’ historical refusal to formally school their children beyond eighth grade. In Employment Division v. Smith (1990), the Court faced a conflict between Oregon’s laws prohibiting drug use and Native Americans’ religious use of peyote. These cases are connected by the context in which they arose: not religious minorities being specifically targeted by the laws in question but religious minorities touched incidentally by statutes written by legislatures in broad terms.
In such cases, there is good reason to hope that ordinary politics will result in compromises that ultimately achieve the goals of the public’s legislative purpose while preserving or minimizing the impact on religious liberty. Justice Antonin Scalia, in writing for the majority in Smith said, “A society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well. It is therefore not surprising that a number of States have made an exception to their drug laws for sacramental peyote use.”
But Obama has changed all that. Instead of a system of compromises and give-and-take in the usual legislative process, he has used executive privilege and administrative regulations to enforce his ideology without consideration of the impact on religious liberty. White puts it this way,
“During Obama’s presidency, by contrast, the collisions between progressive policy and religious liberty are not the result of legislative compromise or political give-and-take. Rather, they come from administrative agencies pushing a specific agenda as aggressively as possible, or from courts announcing new rights in absolute terms, leaving little apparent room for religious freedom. In this respect, the threat to religion comes not from popular majorities, but from minority factions that succeed in capturing either administrative or judicial power and leveraging it against religious minorities who stand in the way of their policy agenda.”
The Hobby Lobby case illustrated this point well. Congress didn’t approve the offensive language that precipitated the lawsuit. It is highly unlikely they ever would have. But, HHS Secretary Sebelius did. During oral arguments before the Court, Justice Anthony Kennedy asked Solicitor General Verrilli, “What kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?”
The same could be said about Obergefell v. Hodges. Whereas the legislative process often facilitates the inclusion of “religious accommodations” that can be worked out to the betterment of all parties, the judicial process usually leads, in the words of Dean Minow, “to black and white, yes and no, win and lose answers.” In the Supreme Court decision over same-sex marriage there will be religious persons, organizations, and institutions affected in addition to the two parties in litigation.
Americans Prefer Religious Liberty
Recent polls show Americans divided on the issue of same-sex marriage. Fifty percent support it; 48 percent oppose. But they don’t believe businesses should be forced to violate their religious freedom to take photographs or provide cakes for same-sex weddings. The same poll shows 52 percent endorsed religious protections, while 45 percent oppose them.
When the poll asked the blunt question, “In cases where there is a conflict, which do you think is more important for the government – to protect the rights of gays and lesbians or to protect religious liberties?” Religious liberty won over gay rights 56 to 40 percent.
White says these polls show how Americans believe in religious freedom and want to protect this freedom while allowing for alternative lifestyles. He says,
“Such public sentiments suggest that legislative processes resulting in the recognition of same-sex marriage would also include protections for religious liberty. When courts and agencies, by contrast, are the government bodies deciding how to create and enforce a right to same-sex marriage, such generosity cannot be assumed.”
The future is bleak if secular progressives, like President Obama, occupy the White House. The party of big government will continue to use the government as a tool to achieve its ideological agenda. With the consolidation of more power in government agencies and the courts, and the continual dismissal of the separation of powers embodied in our Constitution, we can anticipate more restrictions on our religious liberty. White declares unequivocally, “In short, the future of religious liberty in America is tied inextricably to the future of administrative and judicial power in America.”
President Obama has certainly brought change – but not the change that most people voted for. He is relentlessly determined to achieve his political agenda no matter the cost – in dollars (over $18 Trillion in national debt) – and in the loss of religious liberty. It is the Obama Reformation that would make the Founding Fathers, those who fought and died for our religious liberty, turn over in their graves.