Saturday, July 5, 2014

Heels on the Cliff

With the Burwell v Hobby Lobby case being decided this past week, I was thinking of the concept of rights and their limits.

"No right is absolute."

This is a common legal statement mentioned frequently in opinions. A well known application is:

"The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic."-Oliver Wendell Holmes in the 1919 Schenck v United States decision.

This means that the Courts must "construe" or interpret the rights found in the Bill of Rights -- they must decide the limits.

Recognizing the importance of religious freedom the Court had in the past applied its highest level of protection, strict scrutiny to it. This means the government cannot violate a sincere religious conviction unless it can show it has a compelling interest in doing so, the law is tailored as narrowly as possible to achieve its goal, and the law must be the least restrictive way of doing it.

In 1990, in the case Employment Division v Smith the Court surprisingly discarded this high standard. Justice Sandra Day O'Connor in her opinion disagreed sharply with this saying,

"The compelling interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests 'of the highest order,'...Only an especially important governmental interest pursued by narrowly tailored means can justify exacting a sacrifice of First Amendment freedoms."

In response, a law was overwhelmingly passed, the Religious Freedom Restoration Act (RFRA), that explicitly restored the highest legal standard. That was 21 years ago and the political winds have shifted. In what legally should have been a relatively easy case to decide based on RFRA, there remarkably were four justices, one shy of a majority, who were willing to construe this "preferred independent" freedom to the point of disappearing. What was so important to have them do so? 

A competing Constitutional right, perhaps? Where in the Constitution is the right that employers must pay for contraception? for abortifacients?

They are willing to take a non-Constitutional statutory "right" and give IT absolute protection, something even Constitutional rights do not enjoy. If there are 20 different products the FDA approved then by God or without your God you must pay for all.

As I type away just a day after July the 4th, I remember those immortal words,

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights..."

I am sobered when I consider that though this basic unalienable right thankfully still stands it does so with its heels on the cliff.

Is this First Freedom really this close to falling away?

#hobbylobby #religiousfreedom