Four days ago, Brittany Meyer, a Friendly Atheist contributor, wrote a brief but eloquent note about an on-going attempt by North Dakotans to enact into their state constitution a version of a federal law called the Religious Freedom Restoration Act (RFRA). Prompted by a commenter, I offer this humble de-legalization of Dr. Meyer’s post, followed by my own comments on the matter. So that I won’t leave anyone behind, I’m starting from the very beginning.
In our country, two separate legal systems exist side-by-side, operating concurrently on a wide range of issues: the federal system, in which laws are written by the federal Congress of the United States, enforced by the President of the United States, and adjudicated by the Supreme Court of the United States (and its subsidiary courts); and the state system, in which each state has its own set of laws drawn up by its legislature, enforced by its governor, and adjudicated by its state court system.
As Dr. Meyer aptly noted, all laws burden someone. Most challenges to laws come from someone who is being burdened by a law and doesn’t like it, and thus attempts to invalidate the burdening law. In the federal system (and so far as I know, in all state systems as well), laws whose validity is questioned in court are subjected to one of a number of different tests. There are three tests used to determine the validity of any law: the rational basis test, in which a law must be rationally related to a legitimate governmental interest–an easy test for a law to pass, assuming it is not arbitrary or irrational; the intermediate scrutiny test, in which a law must be substantially related to an important government purpose–a harder test that is typically restricted to gender and legitimacy discrimination; and the strict scrutiny test, in which a law must be both necessary and the least burdensome approach to a compelling governmental interest–the hardest test, one which few laws survive, and one which is typically relegated only to disputes over the most fundamental rights.
This three-fold division of tests seems easy enough to understand, but the facts on the ground are often more complicated. It is not unusual for a case to present such a blend of law and fact that the judge may not know which of these tests to apply; nor it is unusual for a court to change its mind about which test to apply to certain kinds of laws. In almost every case, these decisions lie exclusively with the court system – either the Supreme Court, or an inferior court if the Supreme Court declines to hear the case. Every once in awhile, though, the Supreme Court employs a particular test that irks Congress, and Congress attempts to force the Supreme Court to use a particular test.
Enter the RFRA. Responding to a decision of the Supreme Court (Employment Division v. Smith, 494 U.S. 872 ), in which the Court declined to employ the strict scrutiny standard in a case essentially about the validity of religious uses of peyote, Congress enacted the RFRA in a clumsy attempt to force the Supreme Court to use the strict scrutiny test in all cases involving a religious objection to a law. The Supreme Court did not appreciate Congress’s interjection. In an opinion (in City of Boerne v. Flores, 521 U.S. 507 ) whose questionable reasoning only barely covers for the Court’s visceral distaste for Congress’s meddling, the Court declared (in effect) that it was up to them, and them alone, to determine the appropriate test to be applied in such cases. (Postscript: Congress later found a workaround by requiring local communities to conform their laws to the RFRA as a prerequisite to receiving federal funds. Congress gets away with this almost every time — that’s why the drinking age is 21 across the country, because states who lower their drinking age don’t get federal money to maintain their highways.)
Which brings us, finally, to Dr. Meyer’s concern. What’s happening in North Dakota is an attempt to modify the North Dakota constitution to include language substantially identical to the RFRA. If the amendment is adopted, then challenges in North Dakotan courts to North Dakotan laws that burden religious exercise will, by law, be determined according to the strict scrutiny test. Dr. Meyer evidently fears this will favor religion and lead to an epidemic of religiously-sanctioned lawlessness in North Dakota, and thus she cautions North Dakotans from approving the amendment.
I believe Dr. Meyer’s concern is misplaced, and the North Dakotan effort poses no threat – either to North Dakotans, or to Americans generally. This belief is based upon two foundations. First, strict scrutiny does not pose the all-consuming, all-destroying hurdle that Dr. Meyer implicitly argues it does; it merely shifts the evidentiary burden to the governmental party and raises the persuasive standard that must be employed. It does not guarantee the end of all laws which can be religiously attacked. It is feasible that a North Dakotan law prohibiting the use of peyote, even in Native American religious ceremonies, might fall to such a standard, and the peyote practice would be permitted. It is not feasible, however, that Warren Jeffs and the FLDS could set up shop in Bismarck and begin freely exploiting and abusing the young girls of North Dakota. The first case presents a conflict between an abstract governmental interest (we don’t like peyote) and an ancient religious practice which poses no societal threat (peyote consumption in a tipi on tribal land); the second case presents a concrete governmental interest (we don’t like perverts molesting young girls) with a religious practice which poses grave societal threat (the systematized abuse of young girls under the guise of so-called marriages).
Finally, Dr. Meyer contends that enacting the RFRA will “privilege religion,” but she does not specify how religion will be so privileged. I think the omission is more intentional than it may appear, because there is no way that the RFRA can privilege religion. There is a fundamental distinction in constitutional law between laws that strengthen the “free exercise” of religion, and laws that “establish” religion. (This distinction is well-encapsulated by the two eponymous clauses of the First Amendment to the U.S. Constitution.) As a matter of legal and political philosophy, society benefits from a maximization of “free exercise” laws, because such laws innately guarantee the breadth and depth of potential religious belief and practice; but society is noticeably afflicted when “establishment” laws are enacted, because such laws restrict the freedom of religious belief and practice. North Dakota’s proposed RFRA amendment does not propose to establish any religion – nor even religion itself; so far as I understand the matter, it only seeks to maximize potential religious freedom.
We atheists should not fear religious freedom, because we are among its chief benefactors; our public unbelief is as protected as the hate-filled bile that comes out of any redneck preacher.