In Arizona last week, a federal court was responsible for what is now an increasingly rare occurrence: it issued an opinion in a case involving religious liberty that both liberal- and conservative-minded legal voices praised. Using the Religious Freedom Restoration Act (RFRA), the court in Arizona reversed the convictions of four defendants who were leaving food and water in one of the harshest environments in the world so as to save the lives of those who cross our border illegally. For reasons that I suspect are rather obvious, progressive voices have celebrated this decision and another similar case involving a single defendant named Scott Warren. However, to understand conservative support we have to get into some necessary background regarding the RFRA statute.
To understand RFRA one must begin with the Supreme Court Case of Employment Division v. Smith 494 U.S. 872 (1990). In Smith, the Court upheld the denial of state unemployment benefits because both citizens were fired for ingesting the illegal drug peyote during one of their Native American religious rituals. The social/legal backlash to this decision was profound, with liberal-minded legal voices continuing to criticize the decision a decade later. As a direct consequence to the Smith opinion, a liberal-led coalition in Congress passed RFRA as a means to strengthen religious liberty protection by establishing the following standard: “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” Perhaps because RFRA began as a political response to a perceived erroneous legal precedent, application of the statute in practice rather quickly devolved into a partisan tool.
Examination of the historical application of the RFRA statute reveals a legal trend that anyone who studies religious liberty cases already knew. Which is, that for the past several decades the single greatest factor for determining whether the federal judiciary will recognize a defendants RFRA claim (or religious liberty claim in general), is if you are a conservative Christian. If you are not a conservative Christian, and even if the case presents a facial preference for Christianity to the exclusion of literally every other religion, you are often SOL when it comes to most of the federal judiciary.
The Arizona case therefore represents a single, but important, refutation of this historical application. The conservative evangelical voices who have praised the Arizona decision offer an additional hope that the bias application of the past can begin to be reversed. But the Arizona case also presents a dreadfully important question that, until answered, prevents unity from ever being achieved behind this laudable expansion of civil liberty: Would a nonbeliever’s conviction for committing the same act be upheld under RFRA’s standard?
I literally hate to say this, because one is always assumed to be arrogant but if the only factor involved here was the law, this would not be difficult to answer. In McCreary County v. ACLU 545 U.S. 844 (2005) the Supreme Court not only recognized that the First Amendment’s religious clauses “protect adherents of all religions, as well as those who believe in no religion at all,” more importantly when it comes to answering the RFRA question, the McCreary opinion made clear the Court views granting a preference for “religion over irreligion” as a violation of the Free Exercise Clause. These principles discussed in the McCreary decision were merely echoing what James Madison declared over two centuries ago when establishing free conscience liberty which is that government “subjecting some to peculiar burdens” violates the same principles of equality as government “granting to others peculiar exemptions.” Here with RFRA, we have Congress passing a law that grants the religious exclusive exemption from criminal law while continuing to burden nonbelievers (who, despite what many religious people might think also maintain deeply personal codes of ethics). With these facts it becomes difficult to argue, again from a legal perspective, that an RFRA which excludes nonbeliever convictions is not a pretty clear violation of equality under the law.
Now, here is the part where I also tell you that maintaining a preference for religion, Christianity in particular, is precisely what many are after. In fact, if litigated today, I believe extending RFRA to nonbelievers would be denied in some U.S. federal circuits.
Why? Well, it is important to keep in mind that we are operating in an environment where our current Attorney General will declare to our nation’s law students that unless you are Christian or a Jew, you are not morally fit to be a citizen of the United States. In fact, William Barr and his predecessor Jefferson Beauregard Sessions regularly describe nonbelievers as a direct threat, to religion and our country, that must be destroyed. It is also important to note that evangelical Christians universally celebrate these descriptions or have since refused to speak up against them. In such an environment, is it any sort of surprise that we are witnessing multiple federal circuits designate nonbelievers to second-class status, even going so far as to prevent them from addressing their own legislatures?
Unification behind our civil liberties requires equality under the law. Providing exemptions to criminal conviction based entirely on whether you practice religion or not is about as clear-cut a legal case of religious inequality as you’ll get. The arguably real, but certainly terrifying question, I suppose, is if the law even matters here anymore.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.