By Ed Mechmann
As the COVID-19 pandemic runs its course, more governments are relaxing quarantine rules, and churches are starting to open for worship. That’s all good news. But this has made abundantly clear that religious liberty has been downgraded into a second-class constitutional right, especially when compared to abortion.
In many places, religious worship is being treated differently – and worse – than other gatherings or activities. Lawsuits have been filed challenging this treatment, and some courts have found it unconstitutional. More churches are announcing that they will openly defy closing orders. The U.S. Justice Department has issued a warning that it will investigate any discrimination against religion. The President has weighed in by purporting to order governors to open all churches (which he doesn’t have the authority to do, but thanks anyway).
It bears remembering that back during the height of the pandemic, many states sought to restrict abortion clinics from operating. The abortion industry filed numerous challenges to these rules, and courts struck all of them all down as unconstitutional. That created a bizarre and perverse paradox: the killing of babies continued apace, but people couldn’t gather to worship God.
How is it possible that religion enjoys less freedom than abortion? To understand this, we need a little background on how our constitutional rights are protected by the courts.
Constitutional Law 101
Over the last century the Supreme Court has invented what is called “tiers of scrutiny” to determine if a law violates one of our constitutional rights. These really a set of balancing tests, which are notoriously subjective and elusive in both definition and application.
“Strict scrutiny” is the most stringent – there must be a compelling state interest and the regulation must be as narrowly written as possible and use the least restrictive means to achieve that interest. The Court uses this standard for “fundamental rights” like racial discrimination or restricting speech because of the viewpoint expressed. It’s very hard to satisfy the strict scrutiny standard, so most laws are struck down.
“Intermediate scrutiny” is the next level. The government only has to show an important or substantial interest and the means to achieve it is no more burdensome than reasonably necessary. Courts review sex discrimination claims and some speech restrictions under this standard.
Any right that remains will be reviewed under the lowest tier, “rational-basis review”. Here, the law will survive if the judge can find any conceivable rational reason to justify the law. Economic or public health rules are typical examples. Rational basis review is extremely deferential to the legislature. It is exceptionally difficult to overturn a law if this is the level of scrutiny.
How Much Protection Does Religious Liberty Have?
The very first amendment of the Bill of Rights says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” That sounds as if the right to religious liberty is “fundamental”. So you would think that a law burdening religious liberty should be evaluated according to the high “strict scrutiny” standard.
Not so, according to the Supreme Court.
In the infamous 1990 decision in Employment Division v. Smith, the Supreme Court held that if a law is neutral on its face and generally applicable, no exemption must be given to people or institutions whose religious beliefs are violated. That’s a really low standard – pretty much the same as the rational basis test. They actually downgraded religious freedom by overruling earlier decisions that applied the strict scrutiny test.
This is very strange. Other rights that are explicitly listed in the Constitution, such as free speech, free association, equal protection of the law, and so on are given much higher protection. Any law that burdens those rights must pass the strict scrutiny standard or be struck down. But not religion.
Under the Smith rule, it’s all about whether the law is neutral and generally applicable, not about the inherent value and importance of religion. As a result, many of the challenges to church closings have lost because the lockdown rules apply to all kinds of gatherings and don’t single out religious worship. In the cases where religious gatherings were singled out or treated differently than other gatherings, courts have struck down the quarantine regulations.
It’s actually even worse under New York’s Constitution. That document says, “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind”. That sounds very protective, right? Not according to the New York Court of Appeals. In 2006, that court decided in Catholic Charities v. Serio that the government didn’t even have to justify a law that put burdens on religion. Instead, the burden of proof was on the religious person to prove that any restriction was “unreasonable” – an incoherent standard that may be even lower than rational basis and a far cry from strict scrutiny.
A challenge to a lockdown law under the Catholic Charities standard would likely lose. It would be hard for a church to prove that a ban on services meetings is “unreasonable”, given the broad deference given to government public health decisions. Courts might even uphold rules that treat churches differently than other kinds of meetings.
There it is. Religious liberty has been reduced to a second-class right.
How Does Religious Liberty Compare to Abortion?
Abortion, unlike religious liberty, appears nowhere in the Constitution. It was discovered by the Supreme Court somewhere in the “right to privacy”, which is also not found in the Constitution. This discovery was based on the notion that “that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Yes, “penumbras” and “emanations”. Bizarre, but true, and it has been used as the legal foundation for every Supreme Court decision expanding the legal protection for sexual license.
The most recent Supreme Court case on abortion, Whole Women’s Health v. Hellerstedt, was decided in 2016. The Court applied the notoriously ambiguous and elastic standard of review it established earlier in Planned Parenthood v. Casey. In the hands of judges committed to legal abortion, that rule essentially works the same way as strict scrutiny. It invalidates any regulation that imposes an “undue burden” on a woman’s ability to obtain an abortion. So the Court invalidated a law that required abortion clinics to comply with all health and safety regulations that apply to other surgical clinics.
You might ask, what’s an “undue burden?” According to the Casey rule, it means that “a statute which… has the effect of placing a substantial obstacle in the path of a woman’s choice.” Consider the logical incoherence and utter malleability of that definition. “Undue burden” and “substantial obstacle” are just two ways of saying the same thing. And it’s a totally subjective – what’s “undue” or “substantial” to one judge would be “just fine” to another.
The effect of the “undue burden” rule is to give judges enough flexibility that they can strike down any abortion law they don’t like. This is why it’s so hard to sustain any legislative restrictions on abortion.
So while religious liberty has to sit in the back of the bus, abortion is right up front.
So What If?
Let’s now try our thought experiment. What if we were to apply to religious liberty cases the same constitutional rules that the courts use for abortion, and vice versa?
Under the Casey “undue burden” rule, there is no doubt that most laws restricting religious freedom would be struck down. Courts would find that broad church closure rules are clearly a “substantial obstacle” to religious exercise. Reasonable measures to control the spread of COVID could still be upheld, like social distancing, attendance limits, etc. Meanwhile, other requirements that churches cover morally offensive things like contraception or abortion in their health plans would certainlly be struck down too. Laws that pressure us to conform to gender ideology in our schools would also fall. All of these clearly have “the effect of placing a substantial obstacle in the path of” living according to our faith.
On the flip side, if we were to apply to abortion the Smith or Catholic Charities rules, the result would be dramatic. The health and safety rules that were struck down in Hellerstedt would have been upheld. States would have been able to shut down abortion clinics during the pandemic, just as they stopped all other elective surgeries. Parental consent laws would be upheld, as would doctor-only requirements. Bans on abortions for sex selection or to eliminate disabled babies would also be approved. Conscience protection laws would be certainly upheld. A complete prohibition of late-term abortions would also likely pass the tests – and maybe even second-trimester abortions too.
But that’s not the way things are. Killing an unborn child has more legal protection than going to church or conscientious objection to murder or immorality. So does access to contraceptives, even for minors. So does same-sex conduct and “marriage”. So does pornography and nude dancing. Soon, most likely, will transgenderism.
The Bottom Line
The only logical conclusion from this is that our society values absolute sexual license more than religion. In fact, it has become the new established “religion”. It is being vigorously promoted and protected by law and social pressure, and it brooks no dissent. A large number of ostensibly Christian people have bought into this lie or fail to see the falsehood and danger in it.
That is pretty much the definition of cultural decadence.