When two of the largest corporations in the world—Walmart and Apple Computer—pressured Indiana and Arkansas politicians not to adopt laws protecting religious freedom, did you hear any howls against “corporate lobbying” or “corporate money” or corporate meddling in politics?
Chances are you didn’t. Because Walmart and Apple were intervening on the “progressive” side of the dispute.
In more ways than that, the recent controversy over bills in Indiana and Arkansas to protect religious freedom has been a veritable case book illustration of “progressive” political hypocrisy.
The Indiana and Arkansas measures provide that (1) if a generally-applicable law substantially burdens a person’s religious practice, then (2) that law cannot be applied to the person unless (3) it is necessary to serve a compelling government interest. The measures protect individuals and both incorporated and unincorporated associations.
Now, ask yourself: Who invented these rules? The answer: Progressives did!
The malleable phrase “compelling government interest” and close counterparts were created by the Supreme Court in the in the mid-20th century, when that Court was firmly controlled by left-of-center justices. Those terms were applied by the Court all through that period. Similarly, throughout that period the Supreme Court consistently acknowledged that incorporated and unincorporated associations were entitled to First Amendment rights.
The specific formula embodied in the Arkansas and Indiana laws was invented by “progressive” justices in cases such as Sherbert v. Verner (1963). In fact, the Court’s opinion in Sherbert was written by liberal icon William Brennan.
By 1990, however, the Supreme Court had moved more to the center. That year, it issued Employment Division v. Smith, which concluded that the Sherbert v. Verner test was impractical for most purposes. The majority opinion was written by Justice Scalia. The Court’s three most liberal justices dissented.
“Progressives” were outraged at the Smith decision. They demanded a return to their own formulation. In response the federal government adopted the Religious Freedom Restoration Act (RFRA) by large bipartisan majorities, and the measure was signed by President Clinton. RFRA reinstated the Sherbert v. Verner test for all government actions substantially burdening religious practice. RFRA purported to govern state and local measures as well as federal acts.
When the Supreme Court correctly ruled that Congress could not constitutionally dictate the RFRA standard to state and local governments, state legislatures began to adopt their own RFRAs. In keeping with the Supreme Court’s position that corporations and other associations could assert First Amendment rights, some of those laws protected associations as well as individuals. The Indiana and Arkansas bills are fairly typical of the genre.
In sum, these laws essentially reinstate the progressives’ own rules. Why would they gripe about that?
The answer is that they invented those rules to protect their own constituencies, and they don’t want those rules to protect anyone else. Not believing in the rule of law, they willingly manipulate the rules to benefit those they favor and to hurt those they don’t.
In the mid-20th century cases upholding corporate assertions of First Amendment rights, the plaintiffs were predominantly liberal entities, such as the NAACP and the New York Times. Today, however, the plaintiffs are often conservative entities.
The same hypocrisy applies to the rules protecting religious belief specifically. “Progressives” were outraged at the Smith holding because the losing plaintiff was an adherent of a Native American religion fired for using an illegal narcotic as part of a religious ceremony. If the plaintiff had been a conservative Christian defending his right to abstain from what he believed were sinful practices, perhaps “progressives” would have applauded the result.
Also, “progressives” favor anyone who wants to distribute wealth from those who earned it to those who did not. They loved Sherbert v. Verner and similar cases because the plaintiffs in those cases were demanding government benefits—specifically unemployment insurance. But today’s plaintiffs are not seeking favors for anyone, but only personal freedom. That’s anathema to “progressives.”
The religious freedom controversy thus illustrates the workings of constituency politics. More chillingly, however, it demonstrates how many members of our society hold only contempt for freedom and for the rule of law.
Rob Natelson was a law professor for 25 years and now serves as Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver. His constitutional publications have been cited 16 times in four separate Supreme Court cases since 2013. Read more about Rob Natelson here.