Religious Liberty: Not Just for Social Conservatives
An Arizona federal court flips the script.
|David French||Feb 5, 2020||43||16|
The worst way to approach American civil liberties is to support or oppose them based on your limited understanding of who, exactly, will benefit from freedom. In recent months, a populist and nationalist segment of the conservative intellectual world has been re-evaluating longstanding First Amendment doctrines that grant private citizens “viewpoint neutral” access to public facilities (a legal term for describing equal access for everyone, regardless of their religion or ideology) because very small numbers of drag queens have started exercising the same liberties that thousands of Christian churches and student groups have used to hold worship services and bible studies in schools, libraries, and other public buildings.
Not content with contesting events like “drag queen story hour” in the marketplace of ideas, they’d limit freedom for everyone rather than see a small number of Americans exercise liberty in a way they don’t like.
At the same time, a former rock-solid Democratic commitment to religious liberty has eroded into what often amounts to outright opposition. Why? Because religious liberty is increasingly seen not as the last line of defense for marginalized American faith communities, but rather as a legal weapon wielded against gay Americans by conservative bigots. Again, because the liberty is exercised in a way that its previous advocates don’t like, its previous advocates have now become opponents. And so a law—the Religious Freedom Restoration Act (RFRA)—they once sponsored, supported, and signed is derided as an oppressive relic of a less enlightened past. An increasingly secular party wonders why people of faith should enjoy any special protection under the law.
In reality however, when each party rejects the liberty of their opponents, they undermine the liberty of their allies. Conversely, when their enemies win, their friends win as well.
A federal court in Arizona reached a decision Monday that perfectly illustrates this principle. Using RFRA, it overturned the convictions of four people affiliated with the Unitarian Universalist Church who were prosecuted for “violations of the regulations governing the Cabeza Prieta Wildlife Refuge.” The defendants were convicted after entering the refuge without the necessary permits and “leaving supplies of food and water in an area of desert wilderness where people frequently die of dehydration and exposure.” They were trying to save the lives of illegal immigrants who were making their way across “one of the most extreme environments in North America.”
The four volunteers argued that their actions, “taken with the avowed goal of mitigating death and suffering” were exercises of their religious faith.
The case represents a classic application of RFRA. At issue was a generally applicable federal criminal regulation. It did not specifically target religious faith, but in this instance it burdened the free exercise of the defendants’ religious beliefs. The defendants came from varying religious backgrounds, but they each testified to the “sacred” and “spiritual” nature of their effort to save human life. As the court noted, the “depth, importance, and centrality of these beliefs caused Defendants to restructure their lives to engage in this volunteer work.”
This was more than enough to establish that the government’s prosecution burdened a “sincere exercise of religion.” A religious expression does not need to be expressed from within an established church, nor does it have to be expressed with theological rigor to receive protection under the law.
The government claimed that it could prosecute the defendants in spite of their religious free exercise because it claimed that it possessed a “compelling interest in furthering the national decision to maintain [the refuge] in its pristine nature.” Yet, as the court noted, the refuge is a former bombing range, and it has “unexploded munitions strewn about.” And since the refuge has become a corridor for unlawful entry, a “significant” amount of garbage is on the ground. Moreover, an extensive law enforcement presence “takes its own environmental toll.” The S.S. Pristine sailed some time ago.
And while there is a compelling interest in general in maintaining environmental conditions on federal land, the question is whether that conduct by these four specific individuals had any material effect on the environment. Clearly, it did not. In fact, they often brought garbage bags and picked up “as much trash as possible.”
The government also claimed it had a compelling interest in deterring unlawful immigration, but—as the court noted—its stated justification was nothing short of “gruesome.” It was in essence claiming that the defendants were “interfering with a border enforcement strategy of deterrence by death.” That’s a hideous deterrence strategy to prevent illegal immigrants from committing the misdemeanor of illegal entry. Our nation should not be using the threat of death to deter the commission of the most minor crimes.
The beauty of civil liberties case law is that each lawful exercise of liberty reinforces another. So it is with this case. Progressives will likely cheer that these four activists will escape punishment for saving immigrant lives. And which cases helped them win? One of them was Hobby Lobby—an assertion of religious freedom by Christian conservatives against the Obama administration’s contraception mandate, a cause that many progressives despised.
Ironically enough, the assertion of individual liberties can bind Americans together, as we recognize that we depend on one another to keep our nation free. Moreover, civil rights laws essentially deputize American citizens to act as constitutional cops—using litigation to keep an expanding, overreaching, and excessively punitive government in line.
In my writing and speeches, I’ve long advocated that citizens of both parties should adopt a legal corollary to the Golden Rule—fight for the rights of others that you would like to exercise yourself. And one of the most important and vital of those rights is the right to speak and act in accordance with your deepest beliefs. That’s the very essence of religious liberty. And while the eyes of the nation turned to impeachment or to the Iowa caucuses, a lone federal judge in Arizona performed a vital public service. She reminded Americans that religious free exercise can take on many forms—and the liberty your enemies use today may become a lifeline for your friends and allies tomorrow.
Photograph of cacti in the Cabeza Prieta National Wildlife Reserve by David McNew/Getty Images.