Ken Starr discusses religious freedom. Marci A. Hamilton, Religious Freedom Restoration Act, RFRA, Hobby Lobby

Ken Starr, guest columnist: Religious liberty issues once supported by all now divide our nation, Waco Tribune

Citation: Ken Starr, Ken Starr, guest columnist: Religious liberty issues once supported by all now divide our nation, Waco Tribune (Aug. 3, 2014), http://www.wacotrib.com/opinion/columns/guest_columns/ken-starr-guest-columnist-religious-liberty-issues-once-supported-by/article_2fd2d687-f094-581e-a5c9-2df95fc5bfe1.html


 

The U.S. Supreme Court’s recent decision on Hobby Lobby represents a highly important victory for religious liberty in the United States. But like the Roman god Janus, the Supreme Court’s 5-4 decision also looks in an opposite direction. Specifically, the deeply divided, ideologically polarized decision in Hobby Lobby represents the shattering of an important American consensus that had emerged in the latter part of the 20th century, one that had carried over into this very global century.

In short, 20th-century Americans who otherwise vigorously disagreed on a wide range of policy issues tended to set aside their differences and rally around the flag of religious liberty when that fundamental freedom came under assault. Now the nation, like the high court in the Hobby Lobby case, stands deeply divided.

The result of the Hobby Lobby ruling is thus decidedly mixed: Friends of liberty should indeed celebrate the decision, but they should also be duly warned. What I call the Great American Consensus on religious liberty has been seriously eroded. And that culture-shattering development should be deeply worrisome as we look to the future. Liberties long deemed fundamental in our political and constitutional culture can no longer be taken for granted.

Let me point to two examples to buttress, very briefly, my argument about the American consensus on religious liberty that prevailed in the latter part of the 20th century:

The Equal Access Act of 1984, a federal law to protect the rights of schoolchildren to have Bible study clubs on campus: Congress was the hero. It was responding to a series of lower federal court decisions that prevented, on Establishment Clause grounds, student religious groups from organizing and meeting on-campus on the same terms as, say, the Chess Club or the French Club. This was obviously discrimination. A secular club could meet, but a Bible study or other religious club could not.

Despite its benign pro-equality purposes, Congress’s statute was not warmly received by various school boards. In particular, the law was challenged in a case coming out of suburban Omaha, and eventually the law was upheld — in 1990 — by an 8-member majority of the Supreme Court. That was a huge win. The Supreme Court concluded that, by exercising power in this way, Congress was acting entirely within our constitutional traditions by protecting public schoolchildren who wanted to come together with fellow believers to gather, study and pray.

Consider that: Virtual unanimity — a Washington version of consensus — prevailed on the high court.

The very law at issue in the Hobby Lobby case itself — the Religious Freedom Restoration Act of 1993. Like the Equal Access Act of 1984, RFRA was passed by an overwhelming majority in both houses of Congress.

Once again, Congress was responding to a judicial decision that had curtailed religious liberty. In a highly controversial decision in 1990, a sharply divided Supreme Court — in an effort to restrain judicial power — ruled that courts cannot carve out exemptions to generally applicable laws that do not target religion. This represented a clash of competing judicial visions, a bold judicial power, carving out exemptions from laws in order to protect freedom of conscience, versus a judicial attitude of deference to legislative judgments. Both positions were eminently respectable.

Rushed to cause

But Congress chose sides. Our elected representatives and senators rushed to the cause of religious freedom. In the context of protecting religious liberty, Congress expressly approved of federal judges exercising judicial power to protect freedom of conscience.

One key example: The Supreme Court’s creating a religious-conscientious objection for the Old Order Amish in Wisconsin who insisted on withdrawing their children from public education after they completed the eighth grade — but well before the students had reached the mandatory-attendance level of age 16. Congress thought that this was exactly what courts should do — carve out an exemption that state legislators or bureaucrats had refused to grant.

In signing the Religious Freedom Restoration Act into law in November 1993, President Clinton spoke enthusiastically about the importance of religious liberty: “. . . what a broad coalition of Americans came together to make this bill a reality; the coalition produced a 97-to-3 vote in the United States Senate and a bill that had such broad support it was adopted on a voice vote in the House. I’m told that, as many of the people in the coalition worked together across ideological and religious lines, some new friendships were formed and some new trust was established, which shows, I suppose, that the power of God is such that even in the legislative process miracles can happen.”

Miracles can indeed happen. But that was then, and now is now. At this point in our nation’s glorious history, the Great American Consensus has disappeared.

Perhaps this was inevitable. The Religious Freedom and Restoration Act was truly extraordinary in its reach. It turned the Old Order upside down. RFRA placed the responsibility on government to justify the imposition of what the statute calls a “substantial burden” on religious freedom. If, say, Hobby Lobby shows that a government regulation or law — such as certain contraceptive provisions of the Health and Human Services regulations — places a substantial burden on its religious freedom, then the government must come forward with a compelling justification for the law and then show that its compelling goal (or urgently needed objective) cannot be achieved through ways less destructive of religious freedom.

What Hobby Lobby therefore represents is — simultaneously — a narrow victory for friends of religious liberty and a symbol of the shattered 20th century consensus that in a free society religious freedom stands at the zenith of constitutional values.

The good news, again, is that Hobby Lobby won. That’s a huge silver lining and thus carries into the future the powerful engine that is the Religious Freedom Restoration Act. However, not only was there no consensus, there was deep brokenness within the high court.

Family companies

One enormously important dimension of that victory is that the court — by a lopsided 7-2 margin — concluded that family-owned, closely held corporations can indeed enjoy and claim religious freedom. That is very important as a practical matter. According to a recent study by NYU’s Stern School of Business, about 60 million people work for family-owned or closely held companies.

Indeed, “closely held” corporations include as many as 90 percent of all business enterprises in the United States. Some of these — like Hobby Lobby — can grow quite large.

Those cheery optimists of us who felt that the Great Consensus would continue indefinitely should nonetheless not be overly dismayed. Crystal balls are inevitably cloudy. In a geopolitical context, at the same time the Supreme Court was deciding the Equal Access Act and Congress was beginning debate on the Religious Freedom Restoration Act, Francis Fukuyama authored the New York Times’ bestselling blockbuster: “The End of History.”

Fukuyama’s theory was audacious; the end of the Cold War and the collapse of the Soviet Union meant that the titanic geopolitical struggle between sharply competing theories of government and society had come to an end. Democracy and free markets had carried the day. Totalitarianism and communist ideology were relegated to the dustbin of history. We had thus reached The End of History.

Prophecy is a tough business. Like so many of us, Fukuyama failed to perceive the rise of a new challenge — terrorist ideologies grounded in a radical religious worldview. 9/11, of course, changed everything. The shocking events of that September day also unleashed an outpouring of anti-religious sentiment in much of the developed world. When the Twin Towers fell and hideous black smoke poured out of the Pentagon, broad rhetorical paintbrushes were employed to depict religion — all religion — as a highly negative, even deadly force.

Similarly to Fukuyama’s grand geopolitical theory, a number of us thought — erroneously — that the latter part of the 20th century had ushered in an enduring national consensus on religious freedom. Not so. The tide of public opinion has been shifting, as reflected by the furious popular and political reaction to the decision itself. A modest, narrow Supreme Court ruling was harshly condemned.

Elizabeth Sepper, a law professor at Washington University, wrote: “[Hobby Lobby is] the corporate equivalent of the road to Damascus. Many more corporations will find religion to opt out of regulation that affects their bottom line. Before Hobby Lobby, businesses lost claims to fire pregnant women, refuse to promote non-Christians, discriminate against gays and pay below the minimum wage. After Hobby Lobby, they seem likely to succeed.”

These are serious allegations mounted by serious people. I respectfully but firmly disagree, but here’s the broader point: the urgent task before friends of liberty — including members of Congress and their staffs — is to educate and persuade. The Religious Freedom Restoration Act stands in the finest American traditions protecting individual liberty, even if — like the Old Order Amish of Wisconsin — those individuals or small businesses march to the beat of a different drummer than the percussion more commonly heard in an increasingly secular, post-Christian culture.

To draw from Professor Tom Farr’s wonderful book “World of Faith and Freedom,” ours is — beyond the slightest doubt — a world of faith. From time immemorial, humans have sensed and sought the power of the Divine. In the second decade of the 21st century, and with the collapse of the Great Consensus, we now need to stand up for freedom — freedom for all human beings — to live and carry out our work peacefully in this world of faith.

That is the new, long-term challenge to our culture and politics that is already the legacy of the Hobby Lobby case.

Ken Starr, a former federal judge and U.S. solicitor general, is president and chancellor of Baylor University. He also serves on the faculty of Baylor Law School. This column is adapted from Starr’s July 23 address at a private event at the National Press Club.