A group of radical animal rights advocates in California, who apparently think better of chickens than they do of religious freedom, brought a federal lawsuit against a group of Lubavitch Chassidim in an attempt to block the practice of doing kapparot with live chickens. Kapparot is a ceremony that some Jews perform before Yom Kippur to symbolically transfer their sins to the chicken, which is then slaughtered and its meat donated to needy families. (Some Jews use money instead, which is then donated to charity, but others believe the use of a live chicken to be indispensable.) In the resulting case, called United Poultry Concerns v. Chabad of Irvine, District Judge Andre Birotte Jr granted a temporary restraining order prohibiting the defendants from using live chickens in the ceremony. Judge Birotte later lifted the injunction, but by then it was too late to perform kapparot for this year. (My information about this particular case comes from piece by Howard Slugh in the National Review. It can be found on line at http://www.nationalreview.com/article/441218.)
I believe that Judge Birotte was wrong, but I am by no means as shocked as many readers are likely to be. This case, unfortunately, is not the unimaginable departure from precedent that we might wish it were. Freedom of religion is the first freedom enumerated in the Bill of Rights, but increasingly, it ranks far lower in the hierarchy of rights that the Constitution is supposed to protect. To understand why requires some historical context.
No freedom is absolute. Freedom of speech does not allow you to shout fire in a crowded theater, and freedom of the press does not authorize the knowing publication of defamatory falsehoods. Freedom of religion too has its limits. To take an obvious example, no one would seriously suggest that a religious sect that believes in human sacrifice would be permitted to act on that belief.
Until fairly recently, the basic thrust of constitutional law appeared to be clear. For a state to prohibit an activity protected by the Constitution, it had to show that the resulting interference was narrowly tailored to vindicate a compelling state interest. The Supreme Court applied that constitutional principle to religious freedom in its 1963 decision in Sherbert v. Verner, which held that a State cannot deny unemployment insurance to an individual for refusing employment that would require her to work on her Sabbath. Similarly, in its 1972 decision in Wisconsin v. Yoder, the Court, in a decision written by Chief Justice Warren Burger, held that a state may not force Amish parents to violate their religious beliefs sending their children to school beyond the eighth grade.
Employment Division v. Smith, decided in 1990, represented a radical break with earlier precedent. In a decision written by the late Justice Antonin Scalia, the Court held that a native American who had been fired for using peyote (an illegal substance used by some native Americans as part of a religious ritual) could be precluded from collecting unemployment insurance. Justice Scalia’s opinion held:
“that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”
The shock that greeted the Smith decision did not arise from the actual holding on the facts before the Court. Many had assumed that the Court would hold that the State’s interest in prohibiting the use of peyote was sufficiently compelling to overcome the adherents’ religious liberty interests. Justice Scalia, however, instead of deciding that case on narrow grounds, chose to write a broad decision that effectively upended nearly 30 years of religious freedom jurisprudence. His decision rejected the application of the compelling state interest test to religious freedom cases.
The Smith decision acknowledged that leaving religious practice
“accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself.”
The only circumstance in which the courts could intervene to protect religious freedom, in Scalia’s view, would be
“if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display.”
Thus, to be fair, Smith did not doom all Free Exercise challenges. It left the courts free to strike down governmental action that deliberately targeted religious practices, though I suspect that the Smith majority expected such cases would be few and far between.
That expectation turned out to be naïve. In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, a Florida municipality passed an ordinance seeking to outlaw animal sacrifices practiced by a small religious group known as Santeria, for which such sacrifices are a central religious rite. While the various Justices relied on different rationales, they were unanimous in holding that Hialeah’s ordinance had unconstitutionally targeted Santeria’s religious practice and thus was invalid.
The most significant resistance to the Smith decision, however, came not from litigation but from the political sphere. The five-to-four decision in that case (with Justices Brennan, Marshall and Blackmun joining Justice O’Connor in dissent) caused an uproar when it was initially decided. It was widely criticized by religious leaders and commentators across the political spectrum and temporarily created some odd political bedfellows. A consensus quickly developed that the Court’s evisceration of religious freedom should meet some legislative response. The result was the Religious Freedom Restoration Act (RFRA), passed unanimously by the House of Representatives and nearly so by the Senate and signed into law by President Bill Clinton on November 16, 1993.
The express purpose of the RFRA was to overrule the Supreme Court’s decision in Smith and restore the compelling state interest test articulated in Sherbert v. Verner. It required both the federal government and the States to accommodate the free exercise of religion, interfering with religious freedom only when such interference is narrowly tailored to further such an interest. Congress’s authority to bind the states to this standard was based on section 5 of the Fourteenth Amendment, (the post-civil war amendment that made the Bill of Rights binding on the states). That section expressly authorizes Congress to enforce the Fourteenth Amendment “by appropriate legislation.”
It is hardly surprising that those Justices who believed that Smith was correct did not take kindly to the RFRA,. In City of Bourne v. Flores, a 1997 case involving the application of historic preservation regulations to religious institutions, the Court reaffirmed Smith and invalidated the RFRA, as applied to state action. Section 5 of the Fourteenth Amendment, according to the Court, did not authorize Congress to expand the scope of protected religious freedom. (The application of RFRA to federal agencies was not before the Court in that case and remains in force.)
By the time City of Bourne was decided, Justice O’Connor was the only Smith dissenter still on the Court. She pressed in her dissent in City of Bourne for overruling Smith and was joined in part by Justices Souter and Breyer, who had joined the Court subsequent to the Smith decision. Those two Justices favored allowing the parties to brief and argue the issue of overruling Smith, but did not clearly indicate how they would vote if that happened.
The City of Bourne decision left no remaining doubt that the Court’s alignment placed religious freedom in a uniquely disadvantageous position. The pro-Smith justices, after all, included both conservatives (Scalia, Thomas and Rehnquist), and liberals (Stevens and Ginsburg), as well as Justice Kennedy, who has come to be seen as the “swing justice,” and who wrote the majority decision in City of Bourne. There have been subsequent changes in the make-up of the Court, but none of the newer appointees have expressed any interest in restoring religious freedom. Justice O’Connor, by far the Court’s most consistent supporter of religious liberty, retired in 2006.
The City of Bourne case left advocates of religious freedom with only one viable means of protecting religious liberty from encroachment by the states — encouraging each state to adopt its own version of the RFRA. Some have done so, but most have not. In the world as on the Court, conservatives seek to maximize the power of state governments against encroachment by both the courts and the federal government. Liberals, on the other hand, are often distrustful of religion and seek to minimize its influence. As a result, religious liberty is a political orphan, not just on the Court, but in the country as a whole.
The broad-based coalition that initially enabled the federal RFRA to sail through Congress almost unanimously was the product of a specific time and place and could not be duplicated today. Indeed, the American Civil Liberties Union — an organization that claims to be purist in its support of civil liberties and was part of the broad-based coalition that supported RFRA in 1993 — now apparently makes an exception for freedom of religion. In January of 2015, the ACLU issued a statement withdrawing its support for the RFRA. The organization had previously supported the bill, the statement explained, because it “didn’t believe the Constitution, as newly interpreted by the Supreme Court, would protect people … whose religious expression does not harm anyone else.” It was changing its mind, the statement continued, because the RFRA “is now often used as a sword to discriminate against women, gay and transgender people and others.”
The ACLU’s statement was open about what caused its change of mind. The statement was issued a few months before the Supreme Court’s decision in Obergefell v. Hodges, which requires all states to permit same sex marriage. The Court’s decision in that case was widely anticipated, however, and the ACLU was already gearing up for the next stage of the battle, which is now in progress: the efforts by those who object to same sex marriage on religious grounds to avoid being forced to participate as service providers for such weddings. (The pro-same sex marriage forces seem to think that they are doing religious Americans a favor by exempting clergy.)
Why is religious liberty in a uniquely disfavored position? The simplest explanation is that everyone loves religious freedom in the abstract, but most are far more ambivalent when it comes to actual cases. Those practices that seem inoffensive to the majority can usually protect themselves through the political process. It’s the sects that seem bizarre or offensive to non-adherents (such as Santeria in the City of Bourne case) that most need the protection of the First Amendment — and it’s precisely those sects to whom the Smith majority denied that protection.
Jews — even those who support same sex marriage — should staunchly oppose any discrimination against non-mainstream religious practices. Many of us would shed no tears if kapparot with live chickens could no longer be practiced. Some might even be willing to provide floral arrangements and bake wedding cakes for same sex marriages. But when you deal with judicial decisions, which by their nature rely heavily on precedent, any decision that infringes on anyone’s religious freedom can create opportunities for future deprivations. There are two Jewish practices — infant circumcision (brit milah) and kosher slaughter (shechita) — that are both central to Judaism and potentially vulnerable to attack. Such a threat may seem hypothetical to Americans, but sustained attacks on both practices have become frequent and occasionally successful in Europe.
Neither of these practices appears to be in imminent danger in the United States, which has historically been friendlier to religion than many European countries. As the recent election campaign showed, however, public moods can shift quickly, sometimes in unexpected directions. Eternal vigilance, to use Jefferson’s famous phrase, is indeed the price of liberty.
The founders of our country differed on many things, including the place of religion in public life. Their utterances, on this as on other issues, were not always consistent. They were, after all, pioneering a new form of government, one markedly different from anything that existed at the time. Had you told those who gathered in Philadelphia in 1787 that the Constitution they were writing, with only a handful of amendments (27 to date), would still be the foundation of our government more than two centuries later — much less that the country loyal to that Constitution would stretch three thousands miles from coast to coast and be by far the most powerful and prosperous country on earth — they would have been skeptical, to say the least. Yet as unimaginably different as their world was from ours, for guidance on the place of religion in society, we could do worse than to recall the words of our first President in his famous letter to Moses Seixas, the leader of the synagogue in Newport, Rhode Island:
It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection, should demean themselves as good citizens.