Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Saturday, November 16, 2013

"It Was Twenty Years Ago Today ..." (Happy Birthday to RFRA)

On November 16, 1993, President Clinton signed into law the Religious Freedom Restoration Act (RFRA), which requires that the federal government meet the demanding test of showing a compelling interest before it imposes a substantial burden on sincere religious exercise.  A recent event at the Newseum in Washington DC commemorated the anniversary and assessed the future of religious freedom in America.  A lot has happened in 20 years.  A number of states passed their own versions of RFRA; Congress, responding to a Supreme Court decision, applied the same compelling-interest test to state and local zoning laws and prison regulations; and most recently the statute moved to center stage in providing corporations and individuals with legal arguments for exemption from the HHS contraception mandate.  But in the throes of the HHS fight and other culture-wars issues, it is worth remembering what President Clinton said about religious freedom as he signed the legislation:

... We are a people of faith. We have been so secure in that faith that we have enshrined in our Constitution protection for people who profess no faith. And good for us for doing so. That is what the first amendment is all about. But let us never believe that the freedom of religion imposes on any of us some responsibility to run from our convictions. Let us instead respect one another’s faiths, fight to the death to preserve the rights of every American to practice whatever convictions he or she has, but bring our values back to the table of American discourse to heal our troubled land.

A few remarks about that quote.  The President noted in his remarks the overwhelming consensus behind RFRA back in 1993: a 97-3 vote in the Senate, a simple voice vote in the House; the lead co-sponsors were Ted Kennedy and Orrin Hatch.  That consensus has greatly shrunk in recent years, mostly because of the polarizing culture-wars issues that have led many people to treat "religion" as a largely conservative phenomenon, a threat to liberal and progressive values.  (See here and here for criticisms of that framing of the issue, presenting reasons why in our polarized society, so-called progressives and so-called conservatives should protect each others' claims of conscience against government interference even though they disagree with each other so sharply.)

Notice the implications of President Clinton's remarks for these matters.  First, RFRA protects people of all religious views, all of whom may at point be restricted in their faith by one of the many laws in our complex society.  Let's recover the sense of "fight[ing] to the death for the rights of [all] American[s]," whatever their faith, to practice their convictions without disproportionate or unnecessary burdens.  Second, President Clinton emphasized that religious freedom does not mean freedom in the catacombs.  Religious groups and individuals should be able to follow their values without unnecessary legal restriction not just in houses of worship, but in civil society--in schools, charitable activities, and the workplace--and to bring those values "to the table of American discourse."

In 1993 virtually every member of Congress agreed with those remarks and with the legislation.  In 2013, that consensus has shrunk.  But we can hope, and make prudent and ecumenical arguments to try to ensure, that enough Americans still agree with it to preserve a solid future for religious freedom.

(HT: for the post title, to Paul McCartney; for the link to the Newseum event, to Kim Colby of the Christian Legal Society; for the booklet on RFRA that includes Clinton's signing statement, the Baptist Joint Committee on Religious Liberty)

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Berg, Thomas | Permalink