Home inFocus America: Making it and Keeping it (Summer 2017) The Assault on Our First Freedom

The Assault on Our First Freedom

Elizabeth Slattery Summer 2017
Interior of US Supreme Court in Washington DC.

The right to live out your faith in accordance with your beliefs is a cornerstone of our nation’s history. Yet we seem to be living in a time of increasing hostility toward religion.

In June, for example, at the confirmation hearing for deputy director of the Office of Management and Budget Russ Vought, Sen. Bernie Sanders (I-Vt.) suggested that expressing the core belief of Evangelical Christians might make someone unfit for office. It was a troubling moment, because senators are sworn to uphold the Constitution, and the Constitution demands that the government respect the free exercise of religion.

The First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” The Supreme Court has long held that the government may not force someone to choose between complying with the tenets of his faith or the law. For example, in West Virginia State Board of Education v. Barnette (1943), the Supreme Court ruled in favor of school-age Jehovah’s Witnesses who, for religious reasons, objected to being forced to recite the Pledge of Allegiance and salute the American flag. In Sherbert v. Verner (1963), the Court declared that a state may not deny someone unemployment benefits because her faith prohibited her from working on Saturdays, and in Wisconsin v. Yoder (1972), the Court determined that a state may not force Amish parents to send their teenage children to high school against their religious convictions.  The Court has repeatedly recognized – as it stated in the Barnette case – that if there is a “fixed star in our constitutional constellation, it is that no official … can prescribe what shall be orthodox in…religion.”

But in 1990, the Court ruled in Employment Division, Department of Human Resources of Oregon v. Smith that a Native American’s sacramental use of peyote must yield to a generally applicable criminal law prohibiting peyote. Congress responded by passing the Religious Freedom Restoration Act of 1993 to strengthen First Amendment protection – even against generally applicable laws. Known as “RFRA,” this law prevents the federal government from placing a substantial burden on the exercise of religion, unless that burden advances a compelling interest in the least restrictive way possible. It defines religious exercise as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”  Then in 2000, Congress passed a companion law, the Religious Land Use and Institutionalized Persons Act, known as “RLUIPA,” to protect houses of worship from discriminatory zoning and other land use regulations and extend RFRA protections to prisoners.

Together, RFRA and RLUIPA work to ensure sincere religious believers – whether or not they are considered politically correct today – are not forced to choose between their faith and complying with the law, unless the government can meet a high burden. In recent years, critics have claimed RFRA is a license for religious believers to discriminate in conflicts with the LGBTQ community. But RFRA doesn’t provide a blank check for religious believers to do whatever they want in the name of religion. It simply provides a way to balance government interests and the free exercise of religion. As our newest Supreme Court Justice Neil Gorsuch once explained, “[RFRA] doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.” Indeed, RFRA and RLUIPA are the primary protection for religious freedom today. But as a series of cases demonstrate, there is a growing hostility to religion in our country, and these laws do not always lead to victories for religious believers. Consider the following cases:

How Religious Accommodation Works

Kawaljeet Tagore, a member of the Sikh faith, was fired from her job with the IRS because she refused to stop wearing a kirpan – a miniature ceremonial sword with a 2.5-inch dull blade. Her faith mandated that she wear the kirpan, one of five articles of faith, at all times. A district court judge in Texas dismissed her claims, but the U.S. Court of Appeals for the Fifth Circuit reversed, leading the government to settle with Ms. Tagore in 2014.

Robert Soto, a leader of the Lipan Apache Tribe, used eagle feathers in tribal ceremonies. A federal Fish and Wildlife Services agent confiscated his eagle feathers because the Lipan Apache is not a federally recognized tribe and could not obtain the necessary permit. Mr. Soto filed a federal lawsuit, arguing that the federal law that prohibits possession of eagle feathers without a permit violates his rights under RFRA and the Free Exercise Clause. The district court dismissed the case, but the Fifth Circuit ruled in his favor in 2014, finding that the government could not show that burdening Mr. Soto’s faith advanced a compelling interest when it allowed many other tribes to possess eagle feathers.

Susan Abeles, an Orthodox Jewish woman who worked for an agency that runs two DC-area airports, lost her job for observing Passover. Her faith prohibited work on four days during Passover, and she was subsequently reprimanded and driven to retire early for complying with her faith. When she sued, the district court judge found that RFRA does not apply to her employer and that Ms. Abeles failed to prove that animus toward her religion was the reason the employer did not accommodate her religious practice. Unfortunately, the U.S. Court of Appeals for the Fourth Circuit affirmed that ruling in 2017.

Faruq Abdul-Aziz and Shakoor Mustafa – Sunni Muslims – were officers in the Newark, New Jersey, police department, which generally did not allow officers to have beards. Though the department allowed exemptions from its no-beard policy for medical reasons, it would not allow Aziz and Mustafa to maintain their beards for religious reasons, and they were disciplined. Ultimately, in 1999, the U.S. Court of Appeals for the Third Circuit found that the department violated the officers’ free exercise.

In another case involving beards, Gregory Holt, an inmate serving a life sentence at the Arkansas Department of Corrections, wished to maintain a half-inch beard to comply with his faith. Arkansas allowed inmates diagnosed with a dermatological problem to have a quarter-inch beard. Holt filed suit challenging the policy under RLUIPA, and the case eventually reached the Supreme Court, which ruled in his favor in 2015. While the state argued that its policy was intended to prevent inmates from concealing contraband and address concerns about an inmate’s ability to quickly change his appearance, the Supreme Court held that there were less restrictive means of advancing these goals without forcing Mr. Holt to violate his faith.

Members of the Santo Daime faith in Oregon sued the federal government after drug agents raided their leader’s home and government officials refused to give them an accommodation from the Controlled Substances Act for the importation of Daime tea, a hallucinogenic drink from Brazil used in their rituals. A federal district court ruled in their favor in 2009, finding that the government did not demonstrate that its total ban on importing and possessing Daime tea was the least restrictive means of advancing its interests – particularly in light of accommodations made for various Native American tribes’ use of peyote.

Monifa Sterling, a lance corporal in the Marine Corps, hung signs around her shared workspace with biblical passages as motivation and inspiration. One sign quoting Isaiah read, “No weapon formed against me shall prosper.” She was ordered to take them down because her supervisor purportedly didn’t like the tone. When Lance Corporal Sterling refused, the supervisor took the signs down, and Sterling was court-martialed and sanctioned for disobeying orders. She appealed, and in 2016, the Court of Appeals for the Armed Forces held that taking down the signs did not substantially burden her religious exercise.

Andrew Yellowbear, a member of the Northern Arapaho Tribe and an inmate in a Wyoming correctional facility, wanted to use an existing sweat lodge for his religious exercise. Prison administrators denied Yellowbear’s request because he was kept in a protective unit due to threats made by other inmates and, they concluded, the cost for extra security to move him to and from the sweat lodge would be unduly burdensome. He filed suit, and a district court held that there was no RLUIPA violation, but the U.S. Court of Appeals for the Tenth Circuit reversed in 2014, noting that denying any access to a sweat lodge seemed like a high burden.

During the Obama administration, the Department of Health and Human Services issued a regulation pursuant to the Affordable Care Act requiring employers to pay for or facilitate access to contraception and potentially life-ending drugs and devices as part of their employee health insurance plans. Dozens of employers that had religious objections to this requirement challenged the regulation as a violation of RFRA for forcing them to violate their sincerely held religious beliefs or pay crushing fines for sticking with their faith. Many lower courts ruled that RFRA did not apply to for-profit businesses. A case brought by Hobby Lobby, a craft chain store, reached the Supreme Court, and in 2014, the justices determined that closely held for-profit businesses like Hobby Lobby can bring claims under RFRA.

The administration offered what it thought was an accommodation to certain non-profit employers by allowing them to sign a form that would trigger coverage by a third party. But many employers, including the Little Sisters of the Poor challenged this so-called accommodation for violating RFRA. The Little Sisters’ case (consolidated with several others) also went to the Supreme Court, but the justices issued an unsigned opinion three months after Justice Antonin Scalia’s passing in 2016, sending the cases back to the lower courts and directing them to reach an arrangement that doesn’t jeopardize the Little Sisters’ religious beliefs. The cases remain in limbo, but the Trump administration’s Department of Health and Human Services is considering a broad exemption.

While many of these people ultimately had their rights vindicated in court, it’s troubling that the gut reaction of government officials tends to be not accommodating sincere religious beliefs. You don’t have to agree with Hobby Lobby or the Little Sisters, or share the views of Susan Abeles, Robert Soto, Andrew Yellowbear, and many others to recognize that the government should not be able to force Americans to choose between their religious beliefs and the law.

Elizabeth Slattery is a Legal Fellow and Appellate Advocacy Program Manager in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.