What Is The Best Way to Deal With Increasing Disputes over Religious Liberty?
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Last term, the Supreme Court addressed several religious liberty-related matters in Bostock v. Clayton County, Little Sisters of the Poor v. Pennsylvania, Espinoza v. Montana Department of Revenue, and Our Lady of Guadalupe v. Morissey-Berru. And, shortly following the term, the Court weighed in on another free exercise matter, Calvary Chapel Dayton Valley v. Sisolak. Next term, several religious exercise and religiously motivated free speech matters appear on the Court’s docket, such as Uzuegbunam v. Preczewski, Arlene’s Flowers v. Washington, Bruni v. Pittsburgh, Thomas More Law Center v. Becerra, and Fulton v. Philadelphia.
This docket load could reflect the Court’s interest in religious liberty matters or increasing challenges to religious liberty. In any case, the question remains: how are we to reconcile the free exercise of religion with competing interests in a manner consistent with the First Amendment’s text and history, and the Court’s jurisprudence?
Stanford historian Jack Rakove surveys the history in his new work, Beyond Belief, Beyond Conscience: The Radical Significance of the Free Exercise of Religion (Inalienable Rights). Rakove posits that legislative or regulatory exemptions provide a way forward in contemporary social and religious conflicts. Yet according to scholar Mark David Hall, Rakove’s intentionally provocative work misses the mark both historically and legally, as compared to the Founders’ vision. Rakove’s account—and his proposed solution by exemption—leaves far too little room for dissent from prevailing social norms.
This tension has led some others to seek a legislative “fix”—the most popular of which is “Fairness for All.” But that proposal would add sexual orientation and gender identity as protected classifications to federal civil rights laws, thus vastly expanding the scope of those laws while proposing exemptions for only some religious organizations. That’s why scholars Robert George and Ryan Anderson contend that this euphemistically-named proposal is neither fair to everyone (religious or not), nor protective of everyone’s pre-political, inalienable right to the free exercise of religion, an expressly-protected constitutional right.
These recurrent conflicts and tensions often stem from, or are at least exacerbated by, jurisprudence that minimizes the constitutional text, which our Founders carefully crafted to protect against governmental encroachment. It seems originalism, then, as articulated by Attorney General Meese, Justice Scalia, and Judge Bork, provides the best “fix” of all going forward. The right to religious free exercise—not only to be religious, but also to act on religious beliefs—is rooted in our shared human nature and protected by the text and design of the Constitution. As such, faithful originalists place a premium on this right as our first freedom. Hopefully, the Court will apply this constitutional lens to the religious cases and controversies it considers next term.
Professor of Law, Trinity Law School
Jeffery J. Ventrella leads TruthxChange, a ministry engaging in cultural apologetics that informs the public, equips the church, and protects the future. He also serves as Professor of Law for Trinity Law School, teaching Constitutional Law and international human rights. He also serves as Senior Lecturer at Arizona Christian University, teaching Constitutional Law and a course he designed, Law & Politics. He previously served as associate attorney general for the State of Idaho as well as senior counsel and senior vice president of academic affairs and training at Alliance Defending Freedom (ADF). Upon joining ADF in 2000, he designed the curriculum for a number of ADF training programs, including the Blackstone Legal Fellowship (BLF), a unique training and professional development program for law students. He also helped design ADF International’s Areté Academy Europe, Areté Academy Asia, and Areté Latin America, which provide training for exceptional international advocates and cultural leaders who are on a path to future leadership in a variety of disciplines.
Dr. Ventrella has served as a research fellow and a member of an ad hoc graduate thesis committee for the department of philosophy and constitutional law at the University of the Free State, South Africa. He is also a distinguished fellow of law and culture for the Center for Cultural Leadership and a fellow with the Ezra Institute for Contemporary Christianity. In 2014, TruthXchange appointed him a senior fellow. As an approved speaker for the Federalist Society, Dr. Ventrella serves as an appointed member of the society’s executive committee – guiding its religious liberties practice group. His book, The Cathedral Builder: Pursuing Cultural Beauty (2007), is part of the BLF core curriculum project. In addition, he also edits the BLF’s curriculum. He is the author of numerous monographs and has contributed to and/or edited ten books. Dr. Ventrella received a bachelor’s degree in music education, magna cum laude, from the University of Northern Colorado, where he specialized in trumpet performance. He holds a doctorate in church and state studies from Whitefield Theological Seminary and earned his J.D. from the University of California Hastings College of the Law. He has practiced law since 1985 and is a member of the Idaho State Bar serving on its professionalism and ethics and diversity sections. He is also admitted to practice before the U.S. Court of Appeals for the Ninth Circuit, the U.S. District Court for the District of Idaho, and the U.S. Supreme Court.