WASHINGTON – Religious liberty is becoming a partisan issue as debates over sexual immorality divide coalitions that had previously worked together in defense of freedom of conscience, experts warned at a Thursday symposium on religious freedom in America hosted by the Baptist Joint Committee for Religious Liberty.
"The biggest problem for religious liberty in our time is deep disagreement over sexual immorality," said Doug Laycock, professor of law and religious studies at the University of Virginia School of Law. "Abortion, contraception, emergency contraception, sterilization ... gay rights and same-sex marriage, are dividing the country and poisoning the debate over religious liberty."
The symposium, "Restored or Endangered? The State of Free Exercise in America," was in celebration of the 20 year anniversary of the Religious Freedom Restoration Act.
RFRA was passed by Congress in response to the Supreme Court's Employment Division vs. Smith (1990) decision, which shifted the burden in religious free exercise cases from the state to the religious adherent. Religious freedom advocates believed the decision would harm religious liberty in America, so they worked together on passage of RFRA. A large coalition formed that included both liberal and conservative groups, as well as a diversity of religious groups. RFRA passed in the Senate, 97-3, passed in the House on a voice vote (which means it received no opposition), and was signed by President Bill Clinton.
The Supreme Court later declared that RFRA was unconstitutional in its application to state law. Laycock defended RFRA in that case. The Supreme Court has, though, upheld RFRA's application for federal laws.
RFRA's "shining hour," Laycock said, could come if the Supreme Court looks at challenges to the Affordable Care Act's birth control mandate. The plaintiffs in those cases claim that their religious liberty is violated based, in part, on RFRA.
The symposium, which lasted most of the day and was televised online, had three panels. The keynote speaker was Oliver "Buzz" Thomas, who chaired the RFRA coalition.
The symposium sometimes took a whimsical tone as the panelists, obviously old friends, exchanged stories recalling how they got RFRA passed. At other times, the panelists expressed grave concerns about the current and future state of religious freedom in America.
Rabbi David Saperstein, director and counsel of the Religious Action Center of Reform Judaism, recalled that the RFRA coalition began to break up when women's rights and gay rights group began arguing that religious freedom does not trump discrimination. They would argue, for instance, that religious groups should not be allowed to discriminate based upon sexual orientation in their hiring practices.
In response to a question from The Christian Post, Thomas said he is not sure if RFRA could get passed in today's Congress. Indeed, he added, he is not sure if the religious freedom clauses of the First Amendment would pass in today's Congress, noting polls showing one-third of Americans believe those clauses go too far in protecting religious freedom.
"It's a dicey proposition," he said.