Back religious liberty, and we all will benefit

  • Article by: THOMAS C. BERG
  • Updated: May 29, 2012 - 8:57 PM

Editorial about North Dakota's vote focused too narrowly on conservatives.

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In editorializing against North Dakota's proposed religious-liberty amendment ("A misleading push for religious liberty," May 25), the Star Tribune itself gave a misleading account.

The proposed rule -- declaring that burdens imposed on religious practice by law should be justified by a "compelling" governmental interest -- is already applicable to the federal government, and to more than 20 states by statutes or by state constitutional rules. The "compelling interest" standard is not absolute, but it requires government to offer a strong reason for imposing on religious conscience.

This issue arose when the U.S. Supreme Court ruled in 1990, in a case involving Native Americans' historic use of peyote at worship services, that states could punish virtually any sincere religious practice, whether it caused harm or not, as long as they did so pursuant to a "neutral, generally applicable" law covering nonreligious conduct, too.

Congress, believing that equating the exercise of religion with all other forms of conduct was inconsistent with our First Amendment, responded in 1993 by passing the Religious Freedom Restoration Act. That statute restored the compelling-interest rule, by overwhelming votes -- unanimously in the House, 97-3 in the Senate -- and now governs all federal laws.

Given this background and the rule's adoption in half the states, how can the Star Tribune denigrate it as "un-American"? In our complex society, valid laws sometimes collide with religious conscience. In such cases it is sensible to balance societal values by protecting religious freedom unless the government can show a strong countervailing interest.

Because our nation values religious freedom, we have recognized such exceptions ever since Quakers were exempted from service in revolutionary militias. If exceptions are illegal "preferential treatment," as the editorial suggests, then we should not accommodate school athletes who need to wear religious head coverings during games, or require prisons to provide nonpork diets to Jewish or Muslim inmates, or protect churches and synagogues with male-only clergy from being sued or fined for discrimination.

By emphasizing the role of Catholic bishops and "religious-right" activists in the North Dakota effort, the Star Tribune suggests that the issue affects only social conservatives.

But the same standard that allows Catholic organizations to challenge mandatory contraception coverage also allowed Protestant and Catholic social services to challenge a draconian Alabama law prohibiting organizations from giving any aid to illegal immigrants. And it allowed progressive churches and synagogues in Minnesota to challenge the requirement that they allow anyone to bring a gun onto their property.

The editorial says that requiring government to justify burdens on religion might "allow one person's beliefs to infringe on others' rights." But many constitutional rights may impose some costs on others. Protected free speech can harm others. Affirming churches' right to keep guns off their property limited what the Legislature had declared as the right of gun owners.

The compelling-interest standard merely means that a court will scrutinize the government's assertion that effects on others are too great. Courts have indeed struck sensible balances.

In the first four years of the 1993 federal religious-freedom statute, courts upheld just more than 40 percent of claims, rejecting almost 60 percent -- hardly the "Pandora's box" the editorial predicts. Nor has the sky fallen in the more than 20 states with the same rule.

As for the contraception-coverage mandate, there are arguments on both sides, and it's not my point here to argue whether religious organizations like Catholic Charities should be exempt. But shouldn't they have the ability (as the 1993 law gives them) to demand that the federal government show a strong need to apply the mandate to them?

The mandate already exempts millions of small businesses-- those under 50 employees -- and the government has given "hardship" waivers to several hundred other employers. Shouldn't a religious organization get consideration, too, when it says the mandate violates its deeply held beliefs?

Since I began teaching religious liberty 20 years ago -- around the time the 1993 act was passed -- I've represented groups from Native Americans to conservative Christians to Hare Krishnas. Recently I've been disturbed to see even the general principle of freedom for religious conduct become subject to partisan dispute.

I hear people dismiss as reactionary not just particular claims, but the very idea that courts should ever limit statutory law to preserve religious liberty. Far from being "un-American," proposals like North Dakota's protect freedom of conscience for all faiths.

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Thomas C. Berg is the James L. Oberstar Professor of Law and Public Policy at the University of St. Thomas School of Law.

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