The Slow Death of Religious Liberty

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The Supreme Court refused to hear a case in which the State of Washington changed its pharmacy referral rules for the sole purpose of forcing a handful of pharmacists to carry the “morning after” pill in violation of their religious and moral belief that life begins at conception.  Pharmacist referral on the basis of conscience is legal in all 49 other states, and this practice is supported by the American Pharmacists Association and more than 30 other medical and pharmacy associations.  In addition, the trial court record contained voluminous evidence that the specific intent of the State was to target “religiously-motivated conduct.”

If the Supreme Court was ever going to defend the Free Exercise Clause – this was the case to do it.  Consider the following facts:

  • It was undisputed that there were no less than 30 pharmacies within a 5-mile radius of the pharmacy at issue that did offer these pills and that there was not one instance of a customer in Washington being denied timely access to these drugs.
  • The same regulations contain numerous referral provisions for virtually any business or convenience reason, but specifically disallow them for a religious or moral purpose.
  • The Ct. of Appeals ruling was in direct contradiction with Supreme Court precedent, which has consistently held that laws and regulations must be neutrally applied and cannot, in rule or practice, treat those with religious motivations any differently than those who operate on a secular basis.

With decisions like this along with recent rulings on abortion and marriage, the Supreme Court has effectively created a hierarchy of rights, valuing the judicially created liberties for some over the enumerated rights of others.  Abortion and same-sex marriage have become the Court’s most sacred rights (with transgender rights quickly ascending) and are afforded the strongest protections, while express constitutional rights like the free exercise of religion are less important than a “State’s interest in patient safety” despite zero evidence of anyone actually being harmed by a pharmacy referral.

The message the Court has sent is clear: religious liberty is just not that important anymore.

Courts will go to extreme lengths to protect even a hint of infringement on the right to kill an unborn child by striking down increased safety regulations, mandatory ultrasounds, and prohibitions on abortions at 20 weeks when a baby could indeed be self-sustaining.  Meanwhile, explicit efforts to infringe on the free exercise rights of private business owners are not only disfavored, they are even unworthy of review.  As Justice Alito wrote in dissent, responding to the Court’s disinterest, “If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.”

The elevation of judge-made rights at the expense of actual constitutional rights is a natural byproduct of the Court’s transition from neutral fact-finder to a policy-making body.  In his dissent in the recent abortion case, Justice Thomas recognized this new paradigm: “The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case.”  In a way, the President and the courts have already done so.  Justices are now nominated based on whether they have “empathy to understand what it’s like to be poor,” not whether they will administer justice without respect to persons.  The idea that a judge would take seriously the oath of office to uphold the Constitution is now antiquated as Court of Appeals Judge Richard Posner recently declared that there is “absolutely no value” in studying the Constitution because it “does not speak to today.”

As a result, the First Amendment right to the free exercise of religion is now subject to the endless stream of judicially-created rights in the Equal Protection Clause of the Fourteenth Amendment.  This is the foundation from which judges will remake the fabric of American culture.  It will come as no surprise when the tax-exempt status of churches is forfeited if they do not marry gay couples or when accreditation is stripped from Christian colleges that do not provide same-sex married housing or if they are closed for simply operating according to the dictates of their faith.  In the new judicial hierarchy of rights, the free exercise of religion is secondary to the policy preferences of the Supreme Court.

Any infringement on the free exercise of religion is supposed to be subject to the strictest form of judicial scrutiny.  No more.  In the modern judicial view, religious exercise is only acceptable if it does not offend anyone and only if it takes place within a home or a place of worship.  Ultimately, that is where this is headed, the secularization of society with the force of law, complete with penalties for those who dare to live according to their religious beliefs.   As Justice Alito put it, this case is an “ominous” sign about the future of the Court and religious liberty.

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