II. Religious Liberty in the U.S.
Religious persecution is intensifying around the globe. The nonpartisan Pew Research Center reports that the number of nations with “high” or “very high” restrictions on religion increased 43% during the decade of 2007 to 2016, from 58 countries to 83.(3) The number of countries persecuting Christians increased 35%, from 107 countries to 144. The number of countries persecuting Muslims increased 56%, from 91 countries to 142, and the number of countries persecuting Jews increased 64%, from 53 countries to 87.(4)
Christians are the world’s most persecuted religious group. The International Society for Human Rights, a secular NGO based in Frankfurt, estimated in 2009 that Christians were the victims of 80 percent of all acts of religious discrimination in the world.(5) The Pew Research Center reports that Christians were the most persecuted religious group in the world every year from 2007 to 2016.(6) Open Doors USA, a ministry that supports persecuted Christians around the world, reports that the number of Christians persecuted by the top 50 countries on its World Watch List increased 14% from 2018 to 2019, from 215 million to 245 million.(7)
Open Doors reports that 1 in 9 Christians experiences high levels of persecution worldwide.(8) Christians around the world are brutally persecuted, facing imprisonment, torture, and even death. Eleven Christians are killed each day in the top 50 countries on Open Doors’ World Watch List.(9) Nevertheless, the persecution of Christians around the world is almost completely ignored by the media and human rights organizations.(10)
In the United States, three provisions in the U.S. Constitution and Bill of Rights protect religious liberty. The First Amendment’s Free Exercise Clause forbids Congress from making any law prohibiting the free exercise of religion(11). The First Amendment’s Establishment Clause forbids Congress from establishing an official religion in the United States, or favoring one religion over another.(12) The No Religious Test Clause of Article VI, Clause 3 forbids the use of religious tests as a qualification for public office.(13) These provisions reflect the high value the Founders placed on religious liberty. As James Madison wrote, “The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.”(14)
Freedom of religious belief is absolute under the First Amendment.(15) As the U.S. Supreme Court wrote in Sherbert v. Verner (1963), “the door of the free exercise clause stands tightly closed against any governmental regulation of religious ”(16) “Government may neither compel affirmation of a repugnant belief,(17) nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities.” 18 Furthermore, “government may not employ the taxing power to inhibit the dissemination of particular religious views.”(19)
Although freedom of religious belief is absolute, the free exercise of religion is subject to regulation for the protection of society.(20) The Free Exercise Clause does not protect terrorism, for example, even if the terrorism is founded on religious belief. Nevertheless, government regulation of free exercise may not unduly infringe the protected freedom.(21)
Before 1990, the U.S. Supreme Court held that the free exercise of religion was a “fundamental right” (22) and granted it the highest level of constitutional protection, known as “strict scrutiny” protection.(23) Under strict scrutiny, the government may not hinder or burden the exercise of a fundamental right unless the government action is necessary and narrowly tailored to accomplish a compelling governmental purpose.(24) Therefore, although the free exercise of religion is not absolute, it received formidable protection under strict scrutiny.
Three religious liberty cases illustrate strict scrutiny protection. In Cantwell v. Connecticut (1940),(25) the state of Connecticut could not require Jehovah’s Witnesses to obtain a government certificate in order to distribute literature and solicit contributions. In Wisconsin v. Yoder (1972),(26) the state of Wisconsin could not compel Amish children to attend high school in violation of Amish religious beliefs. In Sherbert v. Verner (1963),(27) the state of South Carolina could not deny unemployment benefits to a Seventh Day Adventist because she refused to work on Saturday, the Sabbath in her religion.
In 1990, however, the U.S. Supreme Court reversed direction and removed strict scrutiny protection from religious liberty in Employment Division v. Smith (1990).(28) Like Sherbert v. Verner (1963), Smith involved the denial of unemployment benefits. Alfred Smith and Galen Black were members of the Native American Church. They ingested peyote, a hallucinogenic drug, for sacramental purposes at a church ceremony. Their employer, a private drug rehabilitation organization, fired them for ingesting the peyote.
Oregon law denied unemployment benefits to employees discharged for work-related misconduct. When Oregon denied unemployment benefits to Smith and Black, the two men argued that Oregon’s denial of benefits violated their free exercise rights under the First Amendment. They argued that the Oregon statute was unconstitutional under the Supreme Court’s opinion in Sherbert v. Verner (1963), which applied strict scrutiny protection to the free exercise of religion and reversed South Carolina’s denial of unemployment benefits to a Seventh Day Adventist.
Justice Antonin Scalia, writing for the majority in Employment Division v. Smith (1990), abandoned the rule established in Cantwell v. Connecticut (1940),(29) Wisconsin v. Yoder (1972),(30) and Sherbert v. Verner (1963)(31) and removed constitutional strict scrutiny protection from religious liberty.(32) Scalia ruled that states enforcing laws that substantially burden the free exercise of religion no longer need to meet the strict scrutiny test and prove that the state laws are necessary and narrowly tailored to achieve a compelling governmental interest. States only need to show that the law is not specifically directed to the religious practice. The Free Exercise Clause does not protect religious freedom from laws that incidentally forbid an act the religious belief requires.
Why did Scalia remove strict scrutiny protection from the free exercise of religion? Scalia wrote that applying strict scrutiny to religious liberty would “court anarchy:”
Moreover, if “compelling interest” really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them.”(33)
Congress overwhelmingly disagreed with Scalia’s assessment that strict scrutiny protection for religious liberty “courts anarchy.” Congress established a statutory strict scrutiny protection to religious liberty in the Religious Freedom Restoration Act of 1993 (RFRA).(34) RFRA passed by a unanimous vote in the House of Representatives and a vote of 97-3 in the Senate.(35) The Religious Freedom Restoration Act provides that “Government shall not substantially burden a person’s free exercise of religion,” unless it “is in furtherance of a compelling governmental interest” and is the “least restrictive means of furthering that compelling governmental interest.” (36)
Unfortunately, RFRA only provides statutory protection to religious liberty, not constitutional protection. Progressives in Congress are currently attempting to remove RFRA’s statutory strict scrutiny protection of religious liberty with the so-called “Equality Act.”(37) This bill, which passed the House of Representatives on May 17, 2019, prohibits discrimination based on sex, sexual orientation, and gender identity. The bill prohibits an individual from being denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual’s “gender identity.” This bill is designed to deny the religious liberty of those who would deny such access on religious grounds. Section 1107 of the proposed “Equality Act” specifically prohibits religious liberty defenses under RFRA.
Although Employment Division v. Smith (1990) removed constitutional strict scrutiny protection from religious liberty, a liberty expressly guaranteed in the First Amendment, the U.S. Supreme Court has extended constitutional strict scrutiny protection to rights not included in the Bill of Rights, including a fundamental right to abortion(38) and gay marriage.(39) The Progressive movement, encouraged by the decision in Employment Division v. Smith, 494 U.S. 872 (1990), has intensified its attacks on religious liberty. The motives and methods employed in these attacks are described below.