Chris­tians lean­ing on courts to pro­tect rights

The Washington Times Weekly - - National - BY ALEX SWOYER

Evan­gel­i­cal Chris­tians and con­ser­va­tive Catholics are in­creas­ingly head­ing to the fed­eral courts to try to carve out space for their re­li­gious ac­tiv­i­ties, look­ing to press judges to im­bue more mean­ing into the fed­eral gov­ern­ment’s guar­an­tees of pro­tec­tion.

Last week’s 7-2 rul­ing in the Supreme Court that states can’t deny churches money for secular pur­poses just be­cause they are houses of wor­ship is the lat­est in a string of vic­to­ries for the re­li­gious groups.

But jus­tices on both sides of the is­sue in last week’s rul­ing said the court is cre­at­ing a muddy mid­dle ground, with am­bigu­ous in­ter­pre­ta­tions and tricky le­gal tests that will have to be worked through in practice.

Driv­ing the re­li­gious is­sues de­bate are roughly a dozen con­ser­va­tive Chris­tian le­gal or­ga­ni­za­tions fo­cused on de­fend­ing re­li­gious free­dom and ar­gu­ing that it’s the faith­ful, not non­be­liev­ers, who now face the big­gest dan­gers from dis­crim­i­na­tion.

“The fact of avail­able le­gal ad­vo­cates make it much eas­ier for peo­ple who feel they have been wronged to bring chal­lenges,” said Robert Tut­tle, a law pro­fes­sor at Ge­orge Wash­ing­ton Univer­sity.

Although most of the pub­lic fo­cuses on the First Amend­ment’s seem­ingly com­pet­ing pres­sures of al­low­ing for “free ex­er­cise” of re­li­gion while pro­hibit­ing a gov­ern­ment “es­tab­lish­ment,” an­a­lysts say the real le­gal bat­tle is over a 1993 fed­eral law, the Re­li­gious Free­dom and Restora­tion Act, which re­quires the fed­eral gov­ern­ment to take re­li­gious be­liefs into ac­count. Many states have sim­i­lar laws bind­ing lo­cal of­fi­cials.

The law has been a boon to the Chris­tian con­ser­va­tives. Most no­tably, it helped them chal­lenge the Obama ad­min­is­tra­tion’s “con­tra­cep­tive man­date” re­quir­ing most em­ploy­ers to pay for health care plans that give em­ploy­ees free birth con­trol — in­clud­ing meth­ods that some re­li­gions find morally ob­jec­tion­able.

In the 2014 Hobby Lobby rul­ing, the court, in a 5-4 de­ci­sion, ruled that fam­ily-owned cor­po­ra­tions must be of­fered an ac­com­mo­da­tion if they have re­li­gious ob­jec­tions to pay­ing for em­ploy­ees’ con­tra­cep­tion.

Daniel Blomberg, an at­tor­ney with the Becket Fund, said RFRAs are used by more than just Chris­tian groups. He pointed to a case where the law helped se­cure Sikhs serv­ing in the U.S. mil­i­tary the right to grow a beard and wear a tur­ban.

“Be­cause of RFRA, we were able to find a way to con­tinue to honor the mil­i­tary mis­sion with­out forc­ing Sikh-Amer­i­cans to vi­o­late their faith,” said Mr. Blomberg.

But Barry Lynn, ex­ec­u­tive di­rec­tor for Amer­i­cans United for Sep­a­ra­tion of Church and State, which reg­u­larly bat­tles the groups, said the courts have stretched the law be­yond how Congress in­tended it — par­tic­u­larly in the Hobby Lobby case.

“There was no dis­cus­sion about how [the Re­li­gious Free­dom and Restora­tion Act] would pro­tect any cor­po­rate en­tity,” he said.

Mr. Tut­tle also takes is­sue with the act, say­ing judges have turned it into a mine­field.

“RFRA it­self is a com­plete mess — and af­ter the court’s de­ci­sion in Hobby Lobby,” said Mr. Tut­tle. “It shouldn’t be that some­one is just able to say, ‘My re­li­gious practice has been of­fended.’”

Jen­nifer Drobac, a law pro­fes­sor at In­di­ana Univer­sity, doesn’t think the Re­li­gious Free­dom and Restora­tion Act is needed at all be­cause the orig­i­nal au­thors of the Con­sti­tu­tion did a “fab­u­lous job” with the First Amend­ment’s Free Ex­er­cise and Es­tab­lish­ment clauses.

“The ar­gu­ment that we need RFRA is re­ally an ar­gu­ment by the re­li­gious right that they don’t have enough sup­port, and I think that an­swer is not well­sub­stan­ti­ated,” Ms. Drobac said.

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