The Rapid Politicization of Religious Liberty and Natural Rights

Unless the U.S. Rediscovers True Source of Its Rights, It Will Be at the Mercy of Secular Whims

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Political hysteria has reached a crescendo over a very defined and limited ruling in favor of Hobby Lobby with last week’s 5-4 Supreme Court decision. As many commentators have noted, including the editors at National Review, “That this increase in freedom makes some people so very upset tells us more about them than about the Court’s ruling.”

In deciding to uphold rights of conscience, the court cited The Religious Freedom Restoration Act. In 1993, RFRA passed with unanimous approval by a voice vote in the U.S. House of Representatives. It passed the Senate by a tally of 97-3 and was signed into law by President Bill Clinton.

The legislation originated from a 1990 Supreme Court case, Employment Division v. Smith. The then controversial Supreme Court ruling stated that the state of Oregon could withhold unemployment payments from Native Americans that smoked peyote, even if the acts occurred during a recognized Native American worship service.

The ruling was seen as a possible threat to religious liberty for all and facilitated action by an overwhelming majority of Congress. In fact, Justice Antonin Scalia, while deciding against the Native Americans because of a compelling governmental interest, ( a fundamental test the government did not meet against Hobby Lobby), still expressed a desire for more religious liberty and a less activist court. Scalia noted in his opinion of Division v. Smith that Oregon could change its law to better accommodate Native American religion, “When a legislature acts to accommodate religion, particularly a minority sect, it follows the best of our traditions.”

Nancy Pelosi, the Minority Leader of the U.S. House of Representatives, once effusively praised RFRA and its stated aim to expand religious liberty:

This legislation is important because it protects an individual’s religious freedom from unnecessary government interference. It provides for the reestablishment of fair standards to determine if government intervention is necessary.

Even as recently as 1993, there was enough consensus about religious liberty in America so that the RFRA garnered support from the ACLU, which warned that the Smith decision “could force religion-sponsored hospitals to provide abortion or contraception services.”

In just 20 years, times have indeed changed for the future survival of religious freedom. Past supporters of RFRA have rapidly turned against the legislation’s intent. They want to talk about a phony “war on women” rather than concrete threats to liberty.

More hotly contested court cases must be decided before the Supreme Court illuminates not only our fragmented culture and politics, but our increasingly uncommon understanding of religious liberty. Our federal lawmakers have little to no ability to unite to protect our first freedoms.

Despite the Constitution being the supreme law of the land, which is clearly an annoyance to some, religious liberty is increasingly threatened by being completely engulfed by partisan politics and cultural decay.

While it’s true that the Hobby Lobby decision is favorable for religious liberty, the secular demand that religion be divorced from all public activity remains unchanged. Thus the rub: To secularists, the Hobby Lobby ruling was not an affirmation of the rights of conscience and religious liberty, but a temporary setback in the quest for collective progress.

Massachusetts Senator Elizabeth Warren framed their argument even better when she decried the reasoning for ruling in favor of religious liberty and conscience, as “vague moral objections.” That by itself speaks to the crisis in trying to educate the populace in favor of first freedoms that promote the common good and protect rights once understood as inalienable and eternal.

The “vague moral objections” comment points to the nation’s profound confusion about the true source of our rights, and whether we can ever be united again for a nation that promotes a republic rooted in transcendent truth. If not, our future might be even more bound up in serving the whims of a secular state.


Ray Nothstine is Associate Editor at the Acton Institute, and Managing Editor of Religion & Liberty. 

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Ray Nothstine

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