During RNLA's National Policy Conference in May, Prof. Robert Destro from the Columbus School of Law at The Catholic University of America and Kellie Fiedorek of the Alliance Defending Freedom opined onPresident Trump's executive order on religious liberty, recent litigation, and other current legal issues regarding religious liberty and rights of conscience. Here are highlights from the discussion.
On President Trump's executive order:
Ms. Fiedorek: Definitely a step in the right direction that we would have such a commitment from a brand new administration to protecting the religious liberty of all Americans. . . . There is more to be done as we move forward. . . . We still need to see the agencies take action [to protect rights of conscience].
Prof. Destro: What you have is a theme that has now been set by the President. What we need the President to do is to get those agencies staffed up with people who really understand what religious liberty is all about . . . . All you have to do is see how often the Democrats campaign in churches from the pulpit, and then you see on the other side of the spectrum all these churches that are scared to death of the IRS. And what we have found in the abuse of the IRS scandal is that they actually did have something to be afraid of.
On rights of conscience in the post-Obergefell v. Hodges era:
Ms. Fiedorek: We have such a rich history in the United States of balancing very important government interest with a vast variety of viewpoints and protecting individual freedom . . . . In the past few years, we’re seeing a growing intolerance, particularly advanced by the government, for those who want to live and work consistent with their convictions about marriage. . . . We’re seeing the government use the force of law to come after them and attempt to compel them to speak a message or participate in an event that violates their sincerely held beliefs. . . .
The [Washington State] Attorney General conceded during oral argument that when [Baronelle Stutzman] creates floral arrangements, she does actually engage in speech, that that is actually expression. He went on to say that the government can dictate and control what type of expression she creates and for what type of events she does so. I think that should frighten all of us when the government has that much power that it can come in and say this viewpoint is allowed but this viewpoint isn’t.
Prof. Destro: What we need to do is recapture in our understanding of religious freedom itself is that the Constitution has religious freedom written into its DNA. Everybody talks about the First Amendment, but the no religious test clause of Article VI was there before the First Amendment was. And there [are] also the negative implications – the qualifications clause[s] deliberately left religion out of the qualifications. . . . One of the most bloody battles during the Constitutional Convention was over the swear or affirm clause, because Quakers couldn’t swear, and neither could Native Americans. . . .
This is compulsion again. [Plaintiff] is entirely entitled to use her own money to buy her birth control pills, but she has no right to stick her hand in the wallet of the Little Sisters of the Poor to get her money. Religious liberty is not an entity to itself. What was happening, what was suggested in Hobby Lobby and other cases was a public taking for private use. . . . We need to develop a more holistic way of looking at, we are all Americans and the Constitution welcomes us here, and if the New York dressmaker doesn’t have to make a dress for Ivanka Trump, then neither does the florist have to make the bouquet for the gay wedding.
Ms. Fiedorek: Religious freedom is for both the religious and non-religious alike. It protects all of us. Civil liberties absolutely travel together, and when one starts to get chipped away at, you’ll soon see other freedoms chipped away at.
Ms. Fiedorek predicted a 7-2 decision, based on oral argument (and she was correct when the opinion was released in June): Justice Breyer was very concerned that if the lower court’s ruling stands, what does this mean for other neutral programs and benefits, including safety. . . . [Kagan] said this is a clear burden on a constitutional right, because religious individuals and groups are barred from competing in an otherwise neutral benefit.
Prof. Destro: We have to come back to this question of neutrality in public programs. . . . The Court has come a long way since 1947 recognizing that there ought to be equal access to public benefits.
Ms. Fiedorek concluded by noting that “[protection of rights of conscience is] necessary now to preserve that marketplace where we can all participate in and engage without fear that the government’s going to punish us for holding a certain belief,” and Prof. Destro agreed that religious liberty has become equated with bigotry, when in reality it is a fundamental right that should be defended.