The Supreme Court pushed back against RFRA by declaring the law unconstitutional in regard to state laws. In response to this, Congress debated additional legislation and passed the Religious Land Use and Institutionalized Persons Act, and state governments began passing their own versions of RFRA to make sure that religious freedoms were protected from state and local government actions. The coalition that passed RFRA began to break apart, however, as liberal support for religious freedom began to erode.
In November 2013, a symposium marking the 25th Anniversary of RFRA was held at the Newseum in Washington, D.C. At that symposium, Rabbi David Saperstein, director and counsel of the Religious Action Center of Reform Judaism, recalled that liberals began to abandon RFRA because some women's rights and gay rights groups began to argue that their concerns were more important than religious freedom. They said, for instance, that religious organizations should not be exempt from laws banning discrimination based upon sexual orientation.
(On Monday, Obama appointed Saperstein to be the next Ambassador-at-Large for International Religious Freedom.)
Doug Laycock, professor of law and religious studies at the University of Virginia School of Law, made a similar point at the event when he said that debates over sexual morality "are dividing the country and poisoning the debate over religious liberty."
Those debates have become even more intense recently amid the issue of whether to redefine marriage to include same-sex couples. In some states, wedding vendors, such as photographers and wedding cake bakers, have been punished for refusing to serve same-sex wedding ceremonies. In response, Arizona attempted to pass a law that clarified the original intent of its state RFRA.
Even though the bill was consistent with the priorities of the original RFRA, most liberals, and even some conservatives, opposed the law, arguing that it would allow business owners to deny public accommodations to gays. That argument was false. As explained above, RFRA requires strict scrutiny, which does allow government actions to infringe upon religious freedom, as long as it has a compelling interest, the law is narrowly tailored, and the least restrictive means of furthering the interest were used. A group of 11 law professors who specialize in religious freedom, including some liberals such as Laycock, pointed out the deception. The false argument, nonetheless, won the day when Gov. Jan Brewer, a Republican, vetoed the bill under intense public pressure.
In addition to backing off their support for the religious freedom principles in RFRA, some liberals have sought to punish those who hold beliefs different from their own in the economic sphere. In just two recent examples, the CEO of Mozilla was forced out of his job and the Benham Brothers had a show with HGTV canceled because they advocated for maintaining the traditional definition of marriage.
In response to the Mozilla incident, a group of 58 same-sex marriage supporters (not all were liberals, some were libertarian) signed a document stating that those who dissent from the liberal orthodoxy on same-sex marriage should be free to do so.
"The natural consequence of true liberty is diversity. Unless a society can figure out a way to reach perfect agreement, conflicting views will be inevitable. Any effort to impose conformity, through government or any other means, by punishing the misguided for believing incorrectly will impoverish society intellectually and oppress it politically," they wrote.
This disagreement among liberals — whether to support religious freedom and the freedom to dissent — was seen again this month in the debates over the Supreme Court's Burwell vs. Hobby Lobby decision and the Employment Non-Discrimination Act.
Hobby Lobby was arguably the most important test of RFRA since its passage. Unlike the Smith decision, however, this time the Court's conservatives upheld RFRA and the strict scrutiny test imbedded in that law, and the Court's liberals dissented.
In response to the Court's application of RFRA, other liberals responded by attacking RFRA and the principles it upholds. Some Senate Democrats sought to pass a law restricting RFRA. Plus, citing the Court's decision, a few liberal groups withdrew their support for ENDA (which was passed by the Senate but has not been taken up by the House) because it included a religious exemption. Other liberals strongly supported the religious exemption.
In reactions to Hobby Lobby, some liberals showed they have forgotten the history of RFRA altogether. Timothy Egan wrote a column for The New York Times in which he likened the Court's decision to support for religious extremism that leads to murder and slavery. He also argued that the religious freedom clauses should not provide protection when laws incidentally infringe upon one's religious faith — the exact reasoning Scalia used in Smith. Matt Yglesias, executive editor for Vox, demonstrated his ignorance of the fact that RFRA came about because conservatives and liberals together fought for the rights of religious minorities when he tweeted: "Would be easier to take conservative concerns about religious freedom seriously if conservatives cared at all about religious minorities."
To maintain and grow their diverse coalition of religious groups and secular Americans, Democrats should support the religious freedom principles they have long, until recently, championed. They should also show respect and tolerance toward those who they disagree with by acknowledging that well-meaning people can come to reasonable conclusions that differ from their own. President Obama illustrated well how to do this when he first announced that he had changed his position on same-sex marriage.
"I think it's important to recognize that folks who feel strongly that marriage should be defined narrowly as between a man and a woman, many of them are not coming at it from a mean-spirited perspective. They're coming at it because they care about families. And they have a different understanding in terms of what the word 'marriage' should mean. And a bunch of them are friends of mine, pastors and people who I deeply respect," he said.
Part three of this series will advise Republicans on how to deal with their race and ethnicity problem.