The law and politics of religion in America have always been contentious and complex — rather like religion itself (not to mention law and politics).
But in recent years, we've briskly stirred into this volatile mixture yet another tolerably complicated human preoccupation — sexuality, in its ever multiplying modern exacerbations — and our bewilderment now is pretty near complete.
If you're not at least a bit confused, you haven't been paying attention. Behold:
The Equality Act, proposed legislation high on empowered Washington Democrats' progressive 2021 agenda, would broadly prohibit discrimination against LGBT Americans. Passed by the House, it languishes for now in the closely divided Senate, where Democratic Majority Leader Chuck Schumer of New York has called it "essential, urgent and long overdue legislation that will move us closer to a society where all Americans are treated equally under the law."
But here's a curious detail. One of the most dramatic steps the Equality Act takes to move America toward this promised land of liberation is to declare, according to its language, that the "Religious Freedom Restoration Act of 1993 shall not provide … a basis for challenging" the new law's requirements.
What is this loathsome "Religious Freedom Restoration Act of 1993" that some might use to stymie equality in America?
RFRA is a federal law passed unanimously in the House and 97-3 in the Senate 28 years ago and signed into law by Democratic President Bill Clinton. Its chief sponsors were liberal lion Ted Kennedy in the Senate and, in the House … Rep. Chuck Schumer of New York!
The rebirth of freedom under RFRA, Schumer thundered in 1993, would "restore the First Amendment to its proper place as one of the cornerstones of our democracy." It would do this, he proclaimed, by countering an "incomprehensible" Supreme Court ruling that had delivered "a devastating blow to religious freedom."
It gets better. The devastating blow had been brought crashing down on freedom's cornerstone in Employment Division v. Smith, a 1990 ruling authored by … conservative icon and devout Catholic Supreme Court Justice Antonin Scalia.
The Equality Act that Schumer now thinks "essential" would, essentially, restore Scalia's "incomprehensible" limitations on religious rights, at least where LGBT issues are concerned.
It's not unusual lately for liberals to declare infallible moral superiority as they repudiate the very policies they championed with similar self confidence earlier in their careers. Many, including President Joe Biden, are doing the same thing regarding tough-on-crime crackdowns they pushed in the same early 1990s era. (And, yes, Sen. Joe Biden voted for RFRA, too.)
Progressives' conversion into skeptics on religious freedom — freethinkers who generously tolerate all beliefs except those they disagree with — follows the astounding advance in recent decades of the normalization and rights agenda for an expanding population of sexual minorities. Increasingly, only religious objections stand in that revolution's way. Hence the "cornerstone of democracy" must now be unearthed.
But make no mistake, conservatives today have doubts and divisions on religious freedom as well. In the recently concluded Supreme Court term, the conservative majority reinforced by former President Donald Trump's controversial nominations gave churches several victories against pandemic restrictions on services.
But in closely watched cases pitting religious claims against LGBT rights, a schism appeared among the conservative justices.
Simply put, it has become clear that three conservative justices agree with the 1993 edition of Chuck Schumer. They agree that Scalia's Smith decision must immediately be overturned. "As long as it remains on the books, [Smith] threatens a fundamental freedom," wrote Justice Samuel Alito in a closely argued and strongly worded 77-page dissent. It was joined by Justice Clarence Thomas and by Justice Neil Gorsuch, one of Trump's three nominees.
But in the same case two other Trump nominees, Amy Coney Barrett and Brett Kavanaugh, joined in an opinion saying it's not yet clear that the court has a superior religious freedom doctrine with which to replace Smith, even though they agree Scalia's rule is flawed.
Meanwhile, Chief Justice John Roberts and the court's liberal members, like the 2021 edition of Chuck Schumer, are these days content with Scalia's landmark.
The kicker is that all these clashing views were argued in a single, unanimous court ruling upholding religious liberty under the Smith precedent.
In Fulton v. Philadelphia, a unanimous court held that a Catholic social service agency has a constitutional right to defy an anti-discrimination ordinance and refuse to place foster children with same-sex couples, in accordance with its religious beliefs.
Sorting out how all this can be true at once is a riddle worthy of a medieval scholastic philosopher. But it begins with Scalia's holding in Smith.
The Smith court ruled that the First Amendment's guarantee of the free exercise of religion gives Americans no exemption from laws that merely happen to conflict with their faiths, so long as the laws in question are neutral toward religion and apply strictly to everyone. That is, laws can't discriminate against religious practices, or deny exemptions for religious reasons if exemptions are available for any other reason.
When Schumer and company enacted RFRA back in 1993, it restored what had been understood as the legal rule prior to Smith. That rule says no law whatsoever that conflicts with religion can be enforced without passing what's called "strict scrutiny," a standard few laws meet.
What happened next, in 1997, is that the Supreme Court ruled that RFRA could only be enforced against federal statutes, not state and local laws. More than 20 states have since passed state-level RFRA statutes, and nine state supreme courts (including Minnesota's) have found that their state constitutions protect religious freedoms more broadly than the Smith precedent does.
So this is one reason for our tangled web. The U.S. Constitution's free exercise clause, as defined by the Smith precedent, does not govern disputes over religious objections to federal laws. RFRA, a federal statute, governs those disputes. That is why, in the much debated 2014 Hobby Lobby case, a family firm claiming religious exemption won the right to defy a requirement to provide contraceptive health insurance under the federal Obamacare law.
Meanwhile, Smith lives on when religious exemptions are sought against state and local laws. And it has turned out that religious liberty isn't quite dead even under Scalia's much debated rules:
In 2017, in Masterpiece Cakeshop v. Colorado, the Supreme Court found that Colorado officials had discriminated and shown religious animus when they ordered a bakery to make a wedding cake for a same-sex wedding despite their religious objection.
On the other hand, this term, the Supreme Court turned away an appeal from a florist in Washington state with a similar claim. It seemingly found no anti-religion discrimination in the Washington law or proceedings.
The Philadelphia case won by the Catholic foster care agency turned on the fact that the city's anti-discrimination rules contained a mechanism for granting individual exemptions at the city's discretion. Under Smith, if a law makes any exceptions it must always make an exception for sincere religious objections.
So there is logic underlying these legal contortions. Improving the clarity and stability of the situation may not be as simple as Schumer suggested — either in 1993 or in 2021.
With or without Smith, with or without the Equality Act, with or without RFRA, with or without a conservative majority on the high court, it's likely to stay messy and complicated balancing modern America's many and proliferating forms of liberty and equality.
D.J. Tice is at Doug.Tice@startribune.com.