By David Cooley
In recent years, there have been a multitude of religious liberty legal cases reaching the Supreme Court, including the Hobby Lobby case, Little Sisters of the Poor case, and the Masterpiece Cake case, among others. As the list grows, some have come to believe that the “first freedom” is under attack, while others believe that these cases represent a search for “fairness to all.”
Attorney General Jeff Sessions issued, Oct. 6, 2017, a memorandum that was addressed to all executive departments and agencies, putting forth both concise principles concerning religious freedom and, more specifically, providing guidance for how they would be applied in federal policy regulations and, above all, the law.
While this decision did not please all sides, it made it clear that this is an important time in the history for religious freedom, following a period of uncertainty and growing number of legal challenges since the Religious Freedom Restoration Act (RFRA) of 1993.
In the midst of this historic setting, Thomas More College, through its Institute for Religious Liberty (IRL), hosted a program called “Religious Liberty at a Crossroads: Legal Perspectives,” featuring three of the country’s legal experts in the role of religion and society and recent religious liberty cases. Dean Kathleen Jagger, TMC vice president for academic affairs, moderated the event.
The keynote speaker was Kevin Walsh of the University of Richmond School of Law, a graduate from Harvard Law School who served on the legal team representing the Little Sisters of the Poor. In that case the sisters were challenging the Department of Health and Human Services’ mandate requiring them to provide health insurance coverage for sterilization, contraception, and drugs and devices that may cause abortions.
Responding to Mr. Walsh’s address was Frederick Gedicks, who holds the Guy Anderson Endowed Chair of Law at the Reuben Clark Law School of Brigham Young University. In contrast to Mr. Walsh, Mr. Gedicks focused on the justifications for limits on religious exemptions.
The third speaker and second respondent was Ilya Shapiro, senior fellow in Constitutional Studies for the Cato Institute, a public policy research organization dedicated to the principles of individual liberty, limited government, free markets and peace. Mr. Shapiro, who has filed over 200 “friend of the court” briefs in the Supreme Court, many of them on religious liberty cases, focused on the ever-changing view of the government’s role in civil society.
In his keynote address, Mr. Walsh provided the context for litigation that has occurred in the last 25 years since RFRA was enacted. He provided a quick overview of five Supreme Court cases in chronological order — the Hobby Lobby case, Holt v. Hobbs, Zubik v. Burwell (Little Sisters of the Poor case), the Trinity Lutheran Church case and the Masterpiece Cake Shop case — and explained that, in order to comply with RFRA, the federal government has an obligation to decide whether a law is going to be a substantial burden on the exercise of anyone’s religion. If it is they must figure out if there is another way they can accomplish their goal, without burdening someone else’s exercise of religion. In the case of Hobby Lobby and Little Sisters of the Poor the government’s goal (the “compelling interest” of the HHS mandate) was to provide contraception to women through healthcare.
“When you think about how to think about religious liberty, follow the force — who is trying to use the coercive power of government to do what to whom? And as you are asking that question, look for the problem solvers; look for the people who are trying to figure out a way to get things done without having lawsuits,” he said.
Mr. Walsh said that while the claimants for religious liberty have won the big cases in recent years, they have lost, in general, by being involved in litigation at all.
“We ended up in litigation because something else has been lost,” he said.
According to Mr. Walsh, since RFRA there has been an erosion of the consensus across party lines on the value of religious liberty. The topic has become political and polarizing in a way that it wasn’t years ago.
In conclusion, Mr. Walsh told the audience to pray for vocations. The most important aspect of religious liberty is the people who exercise their religion, he said.
“You have to exercise it or else it goes away and you won’t have the government or anyone else to blame.”
Mr. Gedicks focused on what is commonly referred to as the problem of third-party burdens.
“The third party are those who are affected negatively by religious exemptions when they don’t share or practice that faith,” he said.
“The question is whether to relieve believers of obligations under general laws when those laws provide protections and benefits to those of other faiths or no faith at all. That’s a dimension of religious liberty, too, to be able to live out your life without being burdened by the religious commitments of others,” said Mr. Gedicks.
“Is it the case that religious liberty means people are entitled to an exemption that is going to burden other people? Is it really the case that people are entitled to exercise your religion at the expense of others who don’t share your beliefs about contraception or anything else?” These are the questions that Mr. Gedicks posed.
Finally, Mr. Shapiro, who described himself as “agnostic,” said that the idea of religious freedom cannot be separated from the concept of freedom as a whole. He said that the religious liberty cases being examined are “a microcosm of the constant tension between civil society and the overweening regulatory state.”
“While we can argue about whether it’s a good idea to require people to buy certain goods or services, whether they be contraceptives or otherwise, I think it is pretty clear that Obamacare does indeed force employers to do so. An exemption from that mandate is hardly coercive, and such an exemption would harm third parties only if we have a conception that those third parties have a right to force others to pay for goods or services that they want,” Mr. Shapiro said.
Mr. Shapiro argued that civil society in the United States is being smothered by an ever-growing administrative state that, in the name of fairness and equality, takes away rights in order to standardize American life from cradle to grave.
“These cases that have been discussed are just the latest example of the difficulties inherent in turning healthcare and, more broadly, our economy over to the government. It represents a larger, more destructive trend that has been enabled by the Supreme Court’s ratification of expansive federal power — reading the general welfare clause, for example, as a grant rather than a restriction of authority,” he said.
“The growing enforcement of centralized ideological conformity is the real innovation in the use of government power. The issue, then, is government forcing more mandates into what used to be private decision making. And this is a shifting boundary between the private and the public sphere. … The most basic principle of a free society, after all, is that government can’t force people to do things that violate their consciences.”
All the speakers agreed that pluralistic democracy in the United States is fragile and that faithful citizens must be vigilant in preserving it. They also generally agreed on the nature of the problems that stem from living in a pluralistic and free society, but they disagreed on the solutions.
David Armstrong, president of Thomas More College, in his welcoming address, said that programs like this are important because they provide an opportunity for quality dialogue, which is crucial for any civil society.
Following the presentations a question and answer session took place, in which the audience was given an opportunity to participate in the discussion.