Op-Ed

Religious freedom debate upends balance between establishment, free exercise clauses

When the Religious Freedom Restoration Act was submitted before the state legislature last week, North Carolina became the latest battleground in the confrontation between civil rights advocates seeking to promote equality among all citizens and certain advocates of religious liberties fighting for religious principles that, according to some, require discrimination.

The real problem with the bill is that it fails to understand the complexity of religious freedom in America. Perhaps this is because its drafters do not fully appreciate the wisdom of American law and how our Constitution has so successfully nurtured a nation of devout communities.

The bill would permit North Carolina residents to engage in discrimination if their “exercise of religion has been burdened” when adhering to the state’s civil rights laws. The measure is part of a nationwide movement, with several other states considering or recently passing similar laws. This battle began when a New Mexico photographer refused to serve a lesbian couple planning their commitment ceremony. The couple sued under the state’s antidiscrimination act, the photographer responded that her religious convictions compelled her refusal, and the debate spread state to state.

Political activists are now urging Raleigh lawmakers either to preserve civil equality or preserve religious freedom. The battle proceeds as if these are two irreconcilable principles.

Reconciling religious differences is nothing new to American law. The First Amendment “prohibits the making of any law respecting an establishment of religion” while also prohibiting laws from “impeding the free exercise of religion.” The second prohibition, known as the Free Exercise Clause, reflects our nation’s respect, commitment and even admiration for citizens seeking to create meaningful religious communities for themselves. But the first prohibition, known as the Establishment Clause, recognizes that religious conscience is a solely private affair, that government must not favor one religious belief over another and that government intervention into – and even endorsement of – religious beliefs is the best way to undermine them.

Refraining from endorsing certain religious beliefs is especially challenging when confronted with the enormous diversity of our religious communities. Recall, for example, that a coalition of religious leaders in 2012 claimed that the state’s same-sex marriage ban infringed their own religious beliefs. The debate over North Carolina’s marriage laws became a debate between different religious beliefs, precisely the sort of dispute that we do not want our courts and laws to adjudicate. Less familiar claims by religious minorities include challenges to prohibitions on smoking marijuana, compulsory education and required immunizations.


The diversity of these religious claims should be celebrated because they reflect

The bill before the North Carolina legislature, by design, would empower and encourage parties to invoke religious differences into a much wider category of disputes, including any civil or commercial disputes that should not involve religious freedoms. A debtor might refuse to pay a corporation because the money might be used in a way that would offend the debtor’s religious conscience. Conventional property disputes between neighbors would invite religious liberty defenses. To be sure, many of these legal claims might be frivolous, but many will emerge from deeply held and sincere religious convictions. Yet courts will have to scrutinize each one.

RFRA will drag the government and the law deeper into evaluating the veracity and legitimacy of religious beliefs and will impede courts’ ability to remain religiously neutral. It will also invite religious differences to be expressed in all civil disputes, causing religion to pit North Carolina residents against one another.

It is no accident that America is the proud home of such a diverse and deeply committed collection of religious communities. Our Constitution and our laws ensure that governments and courts refrain, as much as possible, from scrutinizing the sincerity or instituting a priority of religious beliefs. James Madison, the primary drafter of the Constitution and perhaps our nation’s greatest champion for religious liberty, warned that “religion and Government will both exist in greater purity the less they are mixed together.”

Religious liberty is not infringed when the law advances the civil rights of others, and it does not benefit when the law grants it targeted endorsements. It flourishes most when left to reside outside government and when it rests exclusively on the conscience and commitment of the devout.

Barak Richman is the Bartlett Professor of Law at Duke University and past president of Beth El Synagogue in Durham.

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