In 1990, the Supreme Court’s Employment Division v. Smith decision lowered the bar for religious freedom protections. Three years later, Congress responded by passing the Religious Freedom Restoration Act (RFRA) which restored the higher standard of religious freedom protections that existed prior to the Smith case.
The RFRA required the government to have a “compelling government interest” before doing anything that would restrict religious freedom.
This did not mean you could do anything in the name of religion, but it prevented the government from punishing an individual’s religious expression simply because they didn’t like it.It would not allow someone to beat their children as a matter of religious expression because the government has a compelling interest in the protection of children. But it would allow Native Americans to use peyote in their religious ceremonies despite the fact that it is generally illegal.The compelling governmental interest in stopping the ceremonial use of peyote could not be demonstrated.
Significantly, when congress adopted this standard it wasn’t even controversial. Everyone believed in religious liberty
The bill was sponsored by Chuck Schumer, still one of the most prominent leftists in Washington DC. It passed the House of Representatives unanimously and passed the Senate 97-3. President Clinton, who signed it into law, called the bill one of his greatest accomplishments as President.
A later Supreme Court decision said that the federal government could not force the states to abide by the standard in RFRA so 18 states have subsequently adopted their own state version.
However, when the Washington State Senate began a debate over RFRA-like language two weeks ago, it was apparent that it will be controversial.
Questions during the hearing indicated that the proposal will face significant, if not insurmountable opposition, in the legislature.
This begs the question, what exactly has changed since 1993 that makes a formerly uncontroversial proposal suddenly so controversial? If RFRA was supported by Ted Kennedy, Joe Biden, and John Kerry, why can’t they support it today?
In 1993, the left still cared about individual rights.
They could still remember the 1970’s when modern liberalism cut its teeth on the idea that it is better to allow people to be offensive (e.g., burn flags, be profane, create and distribute pornography) than to allow the government be the judge of what kind of speech or behavior was acceptable.
Freedom, they argued, is the right to do and say things other people disagree with.
While a belief in individual rights used to be the hallmark of liberalism, it has since been replaced by a commitment to amorphous concepts like “equality” and ending “discrimination”. While they never define those terms in a way they could be held accountable for, what is obvious is that their pursuit of those values leaves no room for people to disagree. After all, how can we have a tolerant world if people are allowed to do things that are intolerant?
The new left wants government to officiate all of our interactions to make sure no one “discriminates”. This explains why, in 1993, Chuck Schumer was the prime sponsor of the RFRA, but in 2013, he is a vocal opponent of efforts that would allow the Catholic Church not to pay for contraception in violation of its beliefs.
It also explains why in 1993, the American Civil Liberties Union (ACLU), co-chaired the lobby committee that helped make RFRA federal law. However, in 2013, they filed a lawsuit against a florist in Washington State because they did not want to provide floral services for a same-sex “wedding”.The ACLU now opposes RFRA language in Washington State specifically because it could allow business owners the freedom to make decisions consistent with their religious beliefs. . . .
The fact that they now value a “tolerant” world free of “discrimination” more than individual rights explains why previously uncontroversial concepts like religious freedom are now viewed so skeptically.Their value system has changed.
As a result, during the hearing in the Washington State Senate Law and Justice Committee two weeks ago, two State Senators expressed serious concern that such a bill would allow pharmacists not to sell abortion drugs or a florist not to provide floral services for a same-sex “wedding”.
Some legislators now believe it is their job to make sure businesses owners are not free to do things they find intolerant.
In the process, those who support religious freedom protections are being characterized as people simply looking for a license to hate.
The problem with this position is that the same religious freedom protections being asked for today were once supported by less than rabid conservatives like Barbara Boxer, Dianne Feinstein, and Paul Wellstone.
The fact that religious freedom is now a controversial topic is not because prominent, new sects of dangerous, religious extremism have formed. To the contrary, religious freedom is now controversial because the voices in culture that have always said that not every impulse should be indulged are the enemy of their well-intentioned but entirely subjective concept of tolerance.
So in pursuit of a more tolerant world, they ironically seek to arm government with the power to decide which ideas are acceptable and which are not. That puts them in historically uncomfortable company where typically everyone’s ox is gored.
We need not follow that path, but we’d be foolish to deny how close we are to it.
In the process of looking for religious freedom protections, we don’t need to convince everyone to see the world like we do. What we are really doing is asking liberals to be liberals again.
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