Religious liberty bogey man -- Scalia?

As I mentioned the other day, the Mattinglys of Ferndale, MD, received waves of really strange robo telephone calls before the election -- since one adult in the house is a registered Republican and the other is a Democrat. We got 'em all, folks. Along the same lines, I receive boatloads of interesting political junk mail since I subscribe to both The New Republic and The Weekly Standard. It's kind of strange to get fundraising letters within days of each other from George McGovern and Charles Colson. All of this is fine with me, since I actually enjoy reading a wide variety of publications and viewpoints.

But there is one thing that enjoy the most. As a journalist, I have always enjoyed reading articles in conservative publications that make conservatives nervous and reading articles in liberal publications that make liberals nervous. This does not happen very often, but once in a blue moon, it happens. Frankly, I don't think it happens enough.

Consider the following Weekly Standard essay by political science scholar Allen D. Hertzke of the University of Oklahoma. The headline: "The Supreme Court and Religious Liberty -- How a 1990 decision has come back to haunt us, and how its damage might be undone."

I should confess right up front that Hertzke was a colleague of mine in the coalition of writers that produced the Oxford University Press volume called "Blind Spot: When Journalists Don't Get Religion."

Now, this article certainly contains all kinds of things that will give some GetReligion readers sweaty palms, in part because it digs into the roots of the 5-4 Supreme Court decision last summer that said the Christian Legal Society at the University of California's Hastings College of Law could be denied recognition because it restricted its leadership to those who share its doctrinal convictions. Please keep reading, no matter what you think about that case.

The key to the article is its villain, in this story about the protection of religious minorities.

... (Here) is where an ironic backstory comes into play. Conservatives unquestionably are the most vigorous defenders of religious autonomy today. Yet it was the Court's conservative leader, Antonin Scalia, who two decades ago led the way in eliminating a key lever that CLS could have powerfully invoked: the legal doctrine that infringements on religious freedom be treated by the Court with "strict scrutiny." Recovering this standard may be the best -- and in an era of liberal jurisprudence perhaps the only -- way to stem the coming judicial onslaught against the free exercise of faith.

And who are the heroes? Well, that would be people such as President Bill Clinton, Vice President Al Gore, William Galston and, looking to the future, perhaps the newly seated Justice Elena Kagan.

Is that interesting, or what?

There is no way to condense the article, but I would urge journalists who are involved in covering religious-liberty stories to read the whole thing. Toward the end, another key name appears. This is a name that will be familiar to all supporters of strong laws -- what used to be called "liberal" laws -- to defend the rights of religious minorities. That name is Marc Stern and the shock is that this strong liberal voice appears in this article as the author of a volume (.pdf) for what most people would consider a conservative group.

Thus, we read:

In a landmark volume on the subject sponsored by the Becket Fund for Religious Liberty, Marc Stern, formerly of the liberal American Jewish Congress, meticulously catalogues how law will undercut religious freedom if same-sex marriage is widely adopted or, more likely, imposed by the courts without any provision for religious exemptions. In a remarkably dispassionate tone, Stern analyzes the welter of federal and state statutes, judicial rulings, and regulations on civil rights, harassment, public accommodations, commercial licenses, professional codes, government contracts, service vendors, reproductive technologies, student speech codes, and housing access. Though sympathetic to gay rights and supportive of laws enabling couples to organize their shared lives, Stern reaches a sobering conclusion: Once same-sex marriage is codified in law, this whole governmental apparatus will come down on dissenters -- especially orthodox Jews and Christians and their institutions -- and there will be little that can be done to ameliorate the effect. The freedom to affirm and to live in accordance with the biblical view of marriage -- the view held by the Founders and by most Americans through the centuries -- will have been profoundly diminished.

Against this formidable threat, the constitutional doctrine of strict scrutiny provides the most effective shield for believers unwilling to compromise duties they see as transcendent and for religious institutions determined to defend their autonomy. Given the manifest peril, it's worth investigating new legislative remedies, however daunting the prospects.

But legal theorists and jurists also must take a fresh look. In the current environment of growing elite hostility toward religion, the test of compelling interest, which provides robust justification for accommodation of religious practices and institutions, is truer to the spirit of James Madison than putative neutrality. In his famous Memorial and Remonstrance, Madison anchored religious freedom in the "duty towards the creator" that "is precedent, both in order of time and in degree of obligation, to the claims of civil society." Because of this prior duty, "no man's right is abridged by the institution of Civil Society." Because religious liberty is, in this profound sense, the first freedom, a key measure of a free society is the extent to which people are not forced to choose between sacred duties and citizenship obligations.

In his day, Madison thought that the prior "duty towards the creator" would be protected if religion were "wholly exempt" from the "cognizance" of civil society and its law; thus he saw no need for religious exemptions or accommodations. In the contemporary environment, however -- where zoning boards prevent church construction, where the Amish can't build their houses in accordance with their faith, where abortion rights trump religious conscience, where support for traditional marriage is equated with bigotry -- avoiding "cognizance" of religion in the supposedly neutral application of secular laws will eviscerate religious liberty. In the regulatory age, the compelling interest justification properly recognizes religious liberty as a fundamental right, forged in the crucible of the nation's social compact.

But what is the biggest hurdle that the old liberals (on this issue now called "conservatives") face in this dispute? It would be Scalia's arguments that undercut the "strict scrutiny" standard, when addressing whether Native Americans could use peyote in traditional religious rituals. That logic is now weighing down those who are defending other religious minorities in this culture, such as traditional Jews, Protestants, Catholics, etc.

This is must reading for those trying to grasp what is happening in the current court debates about religious liberty. Trust me: There are surprises in here for readers on both sides of the political aisle.

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