“Put not your trust in princes, in a son of man, in whom there is no salvation. When his breath departs, he returns to the earth; on that very day his plans perish. Blessed is he whose help is the God of Jacob, whose hope is in the Lord his God.” Psalm 146:3-5 (ESV).
Last week, the governor of Indiana signed into law a bill titled the Religious Freedom Restoration Act (RFRA). This is the same title given to a bill enacted in Congress twenty-two years ago, introduced by liberal New York Democratic Senator Chuck Schumer, which passed unanimously in the House of Representatives and with only three dissenting votes in the Senate. Since then, nineteen states have passed RFRA laws.
These previous RFRA laws were enacted after rulings from the United States Supreme Court which liberals and conservatives alike viewed as undermining the free exercise clause of the First Amendment. For decades prior to 1990, the Supreme Court applied “strict scrutiny” to any law which “substantially burdened” the free exercise of religion. Strict scrutiny requires that any law which substantially burdens the exercise of religion be justified by a “compelling state interest” and utilizes the “least restrictive means” to serve that interest.
In 1990, the Supreme Court abandoned this standard, adopting in its place a test that would result in a law being held constitutional even if it substantially burdened the free exercise of religion as long as it was a neutral law (that is, it didn’t target specifically the exercise of religion) of general applicability (that is, it applied to everyone, not just people of faith). This change was rejected by four of the five justices of the Supreme Court.
Justice O’Connor concurred with the underlying holding of the case but rejected the abandonment of strict scrutiny. And the Courts three most liberal justices, Harry Blackmun (the author of the decision in Roe v. Wade), William Brennan (a stalwart of the Left), and Thurgood Marshall (one of the leading civil rights attorneys of the twentieth century) dissented, vehemently defending strict scrutiny.
In an opinion written, by Blackmun, the Court’s three liberal justices declared: “This Court over the years painstakingly has developed a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion. Such a statute may stand only if the law in general, and the State’s refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means. . . .
“Until today, I thought this was a settled and inviolate principle of this Court’s First Amendment jurisprudence. . . . [T]he majority conclude[s] that strict scrutiny of a state law burdening the free exercise of religion is a ‘luxury’ that a well-ordered society cannot afford, and that the repression of minority religions is an ‘unavoidable consequence of democratic government.’ I do not believe the Founders thought their dearly bought freedom from religious persecution a ‘luxury,’ but an essential element of liberty — and they could not have thought religious intolerance ‘unavoidable,’ for they drafted the Religion Clauses precisely in order to avoid that intolerance.”
Many of us who support the newly enacted Indiana bill point to these three liberal justices and the overwhelming support for the federal RFRA law in 1993 among members both parties and across the entire political spectrum as evidence that Indiana’s law stands in line with a long tradition of jealously guarding religious freedom in America. Opponents note two differences. First, they object to the extension of Indiana’s RFRA to for-profit corporations. Second, Indiana’s law applies to private lawsuits in which the state is not a party.
The first difference is not entirely unique. South Carolina’s RFRA has a similar provision. More importantly, just last summer, the Supreme Court held in the Hobby Lobby case that for-profit corporations can assert religious objections to federal laws, at least where the corporation is controlled by only a few individuals, who are in essence asserting their own free exercise rights.
The second difference is subtler and almost certainly arises out of a case in New Mexico in which a photographer who turned down a request to photograph a same-sex wedding was sued under that state’s public accommodations statute. A few points are relevant. First, the photographer objected under the free speech clause of the First Amendment, asserting that forcing a photographer to undertake an assignment to which he objected was compelled speech, which is generally prohibited. That is, the defense was not based on freedom of religion.
Second, the Supreme Court of the United States refused to hear the case on appeal. As of now, we have no basis to judge how the Court might decide this issue. A mere refusal to hear a case does not mean the Court would have agreed with the lower court’s ruling if it had heard it.
What is clear in all of this is that despite the claims to the contrary, the Indiana bill is not a license to discriminate. It establishes the standard of review that a court must apply to a dispute arising out of a claim that a defendant’s free exercise rights are being violated. Again, this is the very standard applied for much of the twentieth century until 1990, vehemently defended by the Supreme Court’s most liberal justices a mere twenty-five years ago, and overwhelmingly supported across the political spectrum for most of the time since then. A court could still find that a state law restricting the exercise of religion is justified by a compelling state interest if it applies the least restrictive means to serve that interest, just as it could before 1990 and can under the federal and state RFRA laws already enacted.
There is another aspect of this controversy, however, that is troubling. God admonishes His people repeatedly in Scripture not to put their trust in princes, nor in horses and chariots, nor in large armies, but to put their trust in Him. While I strongly believe as Americans we should fight to guard the freedoms our forebearers earned and defended for us, one cannot help but read the responses of many Christians to recent attacks on those freedoms and wonder whether we have misplaced our trust.
Is our ultimate trust in the God of Jacob or is it in our Founding Fathers, the men who drafted and ratified the First Amendment to the Constitution of the United States? Is our trust in God or is it in clever lawyers, who draft legal briefs and argue before the nation’s courts? Is our trust in the Lord or is it in the laws of men, such as the Religious Freedom Restoration Acts passed by Congress and many state legislatures? Who do we ultimately trust to defend us?
If our trust is in men, even our Founding Fathers, then we may be about to learn that when their breath departed and they returned to the earth, on that very day their plans perished with them. I have visited Montpelier, the home of James Madison, on multiple occasions. I have stood by his grave. Madison did a great work and left his nation a heritage worth fighting to defend, but our trust must not be in Madison. His breath has departed and he has returned to the earth.
Thus says the LORD: “Cursed is the man who trusts in man and makes flesh his strength, whose heart turns away from the LORD. He is like a shrub in the desert, and shall not see any good come. He shall dwell in the parched places of the wilderness, in an uninhabited salt land. Blessed is the man who trusts in the LORD, whose trust is the LORD.” Jeremiah 17:5-7 (ESV).
Has this day come because we, like ancient Judah, have placed our trust in princes rather than in the God of Jacob? Have these attacks on the free exercise of religion come because we have placed our trust in a piece of parchment, in the men who penned and ratified it, and in the men and women who are suppose to apply it? These are questions upon which serious Christians need to meditate. Perhaps before we do anything else, we need to repent of misplaced trust.
We can rail against the Babylonians, just as the captives did, but the Babylonians were merely God’s instrument by which He disciplined Judah. When His discipline was completed, He returned the remnant to the Promised Land and punished Babylon, laying it to waste. But for a season (seventy years), He disciplined Jacob by the hand of the Babylonians. That may be our situation today. I think we would do well to consider that possibility.
Our hope, no matter what the outcome of the Indiana situation, or the case pending before the United States Supreme Court this summer on same-sex marriage, or what may follow, must be in the God of Jacob. He is our hope. He is our only hope.
Gregory K. Laughlin is an associate professor of law and director of the law library at the Cumberland School of Law, Samford University. He has joined as a signer of the “scholars’ brief” in the pending case before the United States Supreme Court, defending the constitutionality of state laws restricting marriage to one man and one woman.