Liberal second thoughts on religious freedom

Liberals are exulting over the defeat by North Dakota voters of a proposed Religious Liberty Amendment to the state constitution. In The Nation John Nichols said the amendment would have created “sweeping new exemptions for religious activity in secular life” and might even “allow those charged with domestic violence to claim that their religion allowed them to ‘discipline’ spouses and children.” A Planned Parenthood official said that Measure 3, as the amendment was called, “was divisive, unnecessary and could have had dangerous consequences.”

What’s curious about this reaction is that the text of Measure 3 was virtually identical to language in the Religious Freedom Restoration Act, passed by Congress with overwhelming bipartisan support in 1993 and signed by President Clinton. Here’s the North Dakota language:

“Government may not burden a person’s or religious organization’s religious liberty. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be burdened unless the government proves it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A burden includes indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.”

Although the Supreme Court has held that it cannot be applied to the states, the RFRA is still on the books as a control on federal action. It was inspired by a 1990 Supreme Court decision refusing to recognize an exception from drug laws for the religious use of peyote. Speaking for the court, Justice Antonin Scalia said: “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”

But outside the context of criminal law, the court had embraced the “compelling state interest” requirement. In 1963, it ruled that the state of South Carolina couldn’t deny unemployment benefits to a Seventh day Adventist whose faith wouldn’t permit her to work on Saturday. In enacting RFRA, liberals and conservatives in Congress embraced the principle of the 1963 ruling. In layman’s terms, both the decision and the law endorsed the principle that religious reasons for not complying with the law deserve extra consideration.

So why was this thumb on the scale for religious freedom acceptable to liberals in 1993 but abhorrent to them in 2012? The easy answer is that the North Dakota amendment seemed to be aimed at “Obamacare”-style requirements that religious institutions cover contraception in their insurance policies. Birth control and abortion weren’t uppermost in the minds of liberal supporters of RFRA back in the day. But they are now, which raises an interesting question: Assuming that the Affordable Care Act itself isn’t struck down as unconstitutional, what happens if the Supreme Court rules that the contraception mandate violates RFRA? Will the law’s erstwhile defenders become its opponents?

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