Ken Starr Offers Encouragement on Religious Freedom

on February 5, 2015

Traditional Christians do not need to despair about religious liberty or liberty of conscience in the future, but for religious freedom to prevail in the future will require a firm grasp of the legal doctrines available from court decisions, the perseverance of superior lawyers, and when possible, legislative action. This was the clear message of Kenneth Starr, President and Chancellor of Baylor University, former federal judge, and commentator on contemporary religious freedom at a Faith and Law forum lecture given at the U.S. Capitol building in Washington, D.C. on February 3.

Starr began by referring to the apostle Barnabas, the early fellow missionary of Paul. After serving with Paul, he went his own way in a disagreement, but his name, meaning “Son of Encouragement” could serve as a model for contemporary Christians in their struggle for religious liberty, Starr said. He noted that the Bill of Rights begins with the guarantee of no establishment of religion and the free exercise of religion, and after promulgating those “two values, the text then moves on.” The guarantees of freedom of speech, freedom of the press, freedom of assembly, freedom from unreasonable searches and seizures, etc., follow these first two freedoms, Starr pointed out. It is thus foundational to other freedoms and should inform those subsequent freedoms he seemed to indicate. Although the Constitution is surely an Enlightenment document, “the first freedoms are those which bring you to faith” Starr said. Similarly, he pointed out that the Northwest Ordinance, which provided for the settlement of the American Midwest east of the Mississippi river, and which was enacted about the time of the Bill of Rights, stated that “religion, morality, and knowledge … shall forever be encouraged,” and that these are “necessary” (not “helpful,” as Starr pointed out) “to good government and the happiness of mankind.” This is far different from today’s “strict separation” of church and state.

The intense hostility of secularists makes such religious ideals difficult to realize in contemporary American society, but Starr referred to victories for religious freedom in recent decades to prove that such victories are possible today. Lower federal court decisions had, for instance, said that religious clubs could not meet in public schools, while non-religious student groups, such as a chess club, could. Congress acted to ensure that religious groups had equal access through the Equal Access Act. Challenged in the courts, the challenge to the Equal Access Act lost in the Supreme Court 9 to 0, with only Justice John Paul Stevens disagreeing with the reasoning, but not the decision. Other victories for religious freedom were the Sherbert vs. Verner decision (1963) and Wisconsin vs. Yoder (1972). The first concerned a Seventh Day Adventist required by her employer to work on Saturday. Fired because she refused, she was unable to get unemployment benefits. “Free exercise of religion” means that her unemployment claim should not have been denied, the Supreme Court held. Basically the decision declared that state action could only “burden” (override) religious liberty if the law had a “compelling state interest” as its objective, and provided for its achievement by restricting religious liberty using the “least restrictive” means. The Yoder decision said that Amish school children could not be required to attend public or private school beyond the 8th grade, since their parents free exercise of religion mandated that parents direct the education of their children. This decision is the constitutional basis for homeschooling.

The decisions of the Supreme Court can have consequences different that the philosophy of the justices, and the cases Starr referred to strongly exemplify this. The author of the Sherbert decision was William J. Brennan, the arch-liberal of the Warren Court, who apparently thought of the decision as advancing individual freedom and protecting minorities using religious freedom as a new tool. With the decision, religious conscience became a defense against law which violated it, just as laws cannot violate free speech. Its principle of “compelling state interest” exercised by the “least restrictive” means is the formula appealed to by traditional religious believers today to obtain legal protection against liberal/secularist law and public policy requirements that require conscience violation. This constitutional protection was undone by Justice Antonin Scalia, usually considered the primier conservative justice of our day, in the Employment Division vs. Smith case (1990), which overturned the Sherbert decision. From an anti-judicial activist philosophy, Scalia wanted the religious conscience protected by legislatures, not referred to the courts for judges to mold legal structure. In a back and forth power play between Congress and the Supreme Court, Congress first enacted the Religious Freedom Restoration Act of 1993, restoring the “Sherbert test” as a matter of statutory, not constitutional law. Struck down by the Supreme Court in 1997, it was restored by the court in 2006 at the federal, not state, level (although some states have their own RFRAs).

Starr took encouragement at the margin of support and scope of the RFRA. Passed by 97-3 in the Senate and unanimously in the House, its principle is simple, and it establishes religious freedom as “paramount,” and the “first among equals” of American rights. Starr noted that on signing the RFRA, President Clinton said that “religious freedom is our most important freedom.” Similarly, the Religious Land Use and Institutionalized Persons Act (RLUIPA, 2000), which guaranteed free exercise of religion against zoning restrictions, was passed unanimously by Congress. All of these cases, the Sherbert test, restored at the federal level by RFRA, state RFRAs, the Yoder decision, and the RLUIPA clearly show that “free exercise of religion” means more than simply “freedom of worship.” The Yoder decision, for instance, is clearly a decision about the protection of religious freedom in one’s way of life, not merely protection for religious ceremonies. Because of the clear meaning and intent of these legal standards, those fighting to defend religious liberty can “be of good cheer,” Starr said.

How has it then happened that the national consensus behind religious freedom has collapsed and freedom of religion and conscience are matters of intense conflict? Starr referred to former Justice Sandra Day O’Connor’s concern with the collapse of civic mindedness in the United States, and he attributed the erosion of understanding and support for religious liberty to that. In particular, he noted Justice O’Connor’s observation that there has been a “collapse of civic education.” This has been abetted by the “attitude of secularist hostility” to religious freedom at law schools.

Questions from the audience seemed to challenge Starr’s optimism. The most basic question concerned how to preserve religious freedom against claims advanced in the name of the civil rights doctrine that has developed in recent decades. In particular, the publicized cases of bakers and photographers penalized because of the conscience refusal to participate in homosexual weddings was noted. Starr agreed that these are “hard cases to win, culturally.” He also noted that attacks on religious standards for campus groups threated freedom of association, which involves the right of like-minded people to associate in their own group. He did say that defenders of religious freedom must “find places to defend … even when the law is against you.” Asked about pharmacists required to dispense abortion drugs, or the right of religious hospitals to maintain religious standards of service, he seemed to indicate that this too was a difficult area because the licensed professions are “highly regulated.” “Be careful when you enter a profession,” he warned. Asked whether marriage has been defended poorly in the controversy over same-sex marriage, Starr said he was “agnostic about the best arguments being advanced for marriage.” Referring to the defense of traditional marriage in light of recent court decisions, he said “this is brain surgery.”

But Starr did not deviate from his basic optimism, or his insistence on the need for Christians to be deeply involved in the defense of religious freedom, using the best lawyers and legal tools available. Asked what can be done to prevent the judicialization of politics (having courts make the critical decisions about the most important issues of our day), Starr said he did not think that we can keep the courts out of politics. He noted that de Tocqueville said that in America, important questions of the day find their way into law. People cannot be prevented from taking legal action. But defenders of religious liberty should see that religious liberty is defended in critical cases by the best lawyers available, clearly indicating that this has not always been done in the past, resulting in the loss of religious liberty. As far as the threat of antidiscrimination doctrine is concerned, the Commerce Clause of the Constitution has proved to be a powerful tool by Congress to enact laws it wanted, and has made civil rights laws possible. He seemed to suggest that this power might be used to enact protections for religious liberty. We have strong ground to insist, and we must insist, that the free exercise of religion is more than “freedom of worship.” To claim otherwise is “heresy,” Starr said. We have the Yoder and Sherbert decisions, (the latter carried forward by the RFRA) to prove it. More than negligible legal standards supporting free exercise, and expert skill in using them in court, are the tools of the future to defend religious freedom.

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