Advancing freedom for all in the 21st century
Who should resolve religious freedom conflicts and how?

Written by William C. Duncan

August 28, 2020

This is part 5 in an ongoing series on advancing religious freedom for all by mitigating conflict between the free exercise of faith and other interests. In previous parts, we have explained current legal rules related to religious freedom and, in part 3 and part 4, described thorny conflicts between government policies related to education, discrimination and healthcare. Now we will examine some of the prevailing thoughts about solutions to these conflicts.

Since religious freedom is a core aspiration of our nation, we naturally dislike the idea that current conflicts over religious practice may continue indefinitely without any kind of lasting settlement. Precisely how to structure such a settlement is the hard part. It requires answering questions about who should create the ground rules for a resolution and how they should be framed.

Who should mediate the conflict?

In practice, the U.S. Supreme Court justices and the other federal judges are the de facto religious freedom decisionmakers for our nation today. Their decisions in specific controversies – the contraception mandate, education funding, school hiring policies – establish the contours of religious freedom.

The most outstanding recent foray for Congress into religious freedom, the Religious Freedom Restoration Act (RFRA), dates to 1993 – and because it establishes such a broad rule, it inevitably requires judicial application.

There are benefits to this approach. Judges are relatively insulated from political pressure, and this might make them more amenable to the pleas of religious groups that have little political power. This is what happened in the cases won by the Jehovah’s Witnesses in the U.S. Supreme Court in the 1940s.

Even the most well-drafted statute or constitutional amendment will have some ambiguities that require interpretation by the courts, and/or new situations will arise where the courts need to act in the absence of legislative direction.

There are, however, significant problems with this approach. The first and most significant is leaving these crucial decisions entirely to the courts.

First of all, lawsuits can be expensive and lengthy. Even a successful lawsuit can be punishing in terms of stress, negative attention and consumption of time.

Second, judges are not infallible, and some are more or less sympathetic to religious claims, raising the possibility of inconsistency in their application of protections.

Third, the nature of lawsuits in our legal system means that each case will have a winner and a loser. That may not seem troubling in a case where the government is clearly imposing on people of faith (like expelling children who won’t say the Pledge of Allegiance), but it does not work as well when the courts have to balance a broad range of interests.

Congress, or state legislatures, should play a larger role – indeed, the preeminent one, as our constitutional system intends. One concern is that they might not adequately protect the rights of religious minorities. That has not necessarily been the case, though. RFRA was enacted to protect religious minorities after the Supreme Court narrowed its interpretation of the Constitution in a way that arguably put religious exercise at risk.

One reason the Constitution’s Framers wanted Congress to play this key role is that a legislature has the advantage of greater flexibility in creating rules to balance interests in ways the court can’t. For instance, as the Supreme Court noted in its Hobby Lobby decision, under rules created by Congress, the government had the option of protecting religious groups and providing access to contraceptives. The court could only determine whether a religious group needed to provide that coverage.

What should consensus look like?

Laws protecting religious freedom fall into two basic categories: general principles and specific exemptions.

Typically, courts formulate general principles, but legislatures can as well. The best example is RFRA, which sets out factors for the government to consider in conducting its operations. Does this action burden a religious practice? If so, is it justified by a compelling need? If so, is there a way to meet that need without burdening religion?

But the approach of using principles (e.g. RFRA) as a protection has drawbacks. It allows for subjectivity because some legislators, agency officials, or judges may find a purpose compelling, while others may not. More practically, if a religious organization or person of faith believes they are being compelled to do – or not do – something at odds with their convictions, they will need to convince a court that the government has no compelling reason for its policy or at least could advance that policy in a less restrictive way. This requires a significant investment in time and money.

There is a very important benefit to using principles (e.g. RFRA), however. Government officials may not be aware of how their actions could impact religious practices, particularly minority religious practices. There are instances where it might not be intuitive to a lawmaker that their actions could have religious implications – for instance, requiring reflective tape on vehicles has implications for Amish religious practice, but that might not be apparent to a lawmaker with little knowledge of their beliefs.

This point relates to the major limitation of the other approach: creating specific exemptions from general laws to protect religious practice. If a minority religion lacks political influence or is not well known, it is unlikely to be granted an exemption (or the need for an exemption may not be known). Government officials are sure to know that shutting down worship services has implications for free exercise but may not realize that requiring soldiers to be clean-shaven could also fall into that category.

There are definite advantages to specificity, though. When there is a specific exemption in the law, there is no need to go to court to secure protection for that exempted practice.

Given the pros and cons of these two approaches, both seem essential to protecting religious freedom. Specific exemptions provide certainty, but general principles ensure comprehensive protection.

Looking to the future

As we approach solutions to protect religious freedom while still advancing other important government interests, these baseline questions have to be addressed: Who will set the rules, and how best should they do that? Understanding potential tradeoffs of court versus legislative action, of specific exemptions versus general principles, allows for a broad, comprehensive strategy.

Advocates of religious freedom need to continue litigation activity but must begin to pay more attention to legislation. We need to promote general principles (i.e., legislation such as the principles laid out in RFRA) but increasingly make the case for specific exemptions that help religious people avoid the punishing process of litigation.

How is this best done? There are some discouraging examples. But Utah happens to be a rare state that has recently grappled with these difficult questions, and in one of the most difficult contexts – antidiscrimination law – with some success. Its experience of enacting laws that try to balance religious freedom with protection from discrimination will be the subject of part 6.

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