Religious liberty. The country was founded in large measure by waves of immigrants seeking it. The popular culture celebrates it. And the First Amendment to the U.S. Constitution enshrines it as a fundamental law of the land.
How can it be that in such a nation the age-old Jewish and Islamic tradition of male circumcision finds itself on the ballot in San Francisco, to be banned from that city if citizens so vote – and perhaps also elsewhere if the initiative picks up momentum?
Blame the U.S. Supreme Court. Over the years, contrary to popular perceptions, the justices have developed a contemporary jurisprudence intolerant of religious tolerance – and the San Francisco ballot measure is a direct result.
Yes, it is true that the court has aggressively supported government laws that back religious activities. But it is equally true that the court has fiercely opposed religious activities that challenge government laws.
The San Francisco ballot measure is the political descendant of a 1990 landmark Supreme Court case, Employment Division v. Smith, which overturned decades of judicial precedent protecting religious liberty. In a 5 to 4 decision penned by Antonin Scalia, the justices ruled that, although the First Amendment says government may “make no law â€¦ prohibiting the free exercise” of religion, the federal and state governments may in fact do so.
The justices announced the jaw-dropping doctrine that religious liberty is essentially only as generous as the political majority allows it to be. In Scalia’s tortuous words: “The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”
In other words, as long as a political majority passes a law that applies equally to everyone, no one may claim a religious exemption. “It may fairly be said,” Scalia added in a shockingly callous passage, “that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself.”
So destructive of religious liberty was the decision that even Congress was jolted. By huge bipartisan majorities in both chambers, Congress voted to resurrect the pre-existing legal standard applicable to religious freedom claims. The congressional legislation, the Religious Freedom Restoration Act of 1993 (or RFRA), directed that substantial government limitations on religious activities are permissible only if they further a compelling government interest and only if they use the least restrictive means to do so.
But the court went to work on the RFRA, too. In a set of decisions, the justices ruled that although the RFRA does apply to federal measures restricting religion, it does not apply to state and local measures because the Act exceeds Congress’ constitutional power over the states.
The upshot of the court’s rulings on religious liberty is what has now hit San Francisco. So long as a state or local law is neutral, applies generally to everyone, and is not purposefully designed to target a particular religion (even though its effect may impact a particular religion or religions), the law does not violate the U.S. Constitution.
States may not dip below this minimal constitutional standard. But as long as they don’t, each is free to set whatever level of protection it desires for religious liberty. As a result, some states have chosen to interpret their state constitutions to provide maximum protections. Some have enacted their own state RFRAs, each of whose rigors vary. Some have decided to abide by the minimal standard. And some, like California, have not clearly decided what standard to follow, setting themselves up for nasty political fights and divisive litigation.
Religious liberty is too precious – and the battles for it over the centuries have been too bloody – for the right to vary from state to state and to depend on the preferences of the body politic of each region. The court should reverse itself at the next opportunity, adopt a strong freedom-of-religion national constitutional standard, and unambiguously rule out the possibility of ugly episodes such as the one unfolding in San Francisco.
In the free speech area, the court has not hesitated to adopt strong protective national doctrines. Just last month the court applied those doctrines to permit multi-billion dollar corporations to make and sell appallingly violent video games to children. The majority opinion was authored by – yes – Antonin Scalia. That Scalia and his colleagues have not been able to provide similarly sturdy protections to ordinary people seeking to practice their religion is a shame on the court.