Marci A. Hamilton, the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law at Yeshiva University, says that the concept of “religious freedom” has been hijacked by those who seek political advantage and seek to overturn policy by appealing to one’s beliefs.
Words matter. The phrase of the moment is “religious liberty.” The headlines are filled with the politicization of the term, which has stretched well beyond its constitutional meaning. Conservative Christians demand it (whatever it is) so that theydo not have to mix with LGBT individuals or remotely endorse—or be perceived as endorsing—same-sex marriage. The ACLU is saying it is for making sure sex predators can go to church but not for companies to restrict contraception. The Church of Cannabissays it is for illegal drugs. The Little Sisters of the Poor say it is for not having to say what they believe in writing when the result is that the government accommodates their beliefs.
We did not talk about religious liberty like this until 1993, when the statutory religious liberty regime descended on America with the Religious Freedom Restoration Act. Before that, the First Amendment’s religious liberty meant that the government could not tell you what to believe; or tell a church how to organize itself; or try to run the Santerians out of town by passing a law that applied only to them. In addition, it was never a license to violate laws that undermine complex governing systems, like the tax system or for courts to act as experts on the military, or know-it-alls on prison regulations. It meant that Adell Sherbert could not be denied unemployment compensation for going to church when other employees could take time off without such a penalty, but that drug counselors could not use illegal drugs, even if in a religious ceremony, where that was a requirement for their jobs. Neither could a man take multiple wives even if for religious purposes, nor a religious organization order the government how to handle its own land.