RFRA’s Sponsors Put Extreme Religious Liberty Over Veterans’ Needs

            Sen. Orrin Hatch and Sen. Ted Kennedy were primary co-sponsors for the Religious Freedom Restoration Act (RFRA) in 1993 and when it was re-enacted in 2000.

Though often on the opposite political side, they joined forces behind this unconstitutional and wrongheaded law. Their fanaticism for religion has been at the expense of many, including veterans.

Hatch Politicizes Memorial Day

            On Memorial Day, Sen. Orrin Hatch was invited to speak at Fort Douglas Cemetery in Utah to honor our slain veterans.   As the Salt Lake Tribune reported, he could not help himself as he veered into politics, and his favorite statute, the Religious Freedom Restoration Act.   He informed the crowd gathered to honor vets that the Supreme Court had better rule in Hobby Lobby’s favor in the pending Sebelius v. Hobby Lobby case, or he would take action:

I hope the Supreme Court doesn’t screw that up is all I can say … Because if they foul up the First Amendment again, we are going to have a constitutional amendment. And I believe I can put one on that everybody in this country, except the nuts, will support.

He was rightly pilloried for politicizing a solemn event intended solely to honor our fallen heroes. For the religious extremists today, there seems no venue that is beyond their agenda. Hatch’s unnecessary and self-centered comments at a Memorial Day event were different only in degree to the Westboro Baptist Church’s hate-mongering at veterans’ funerals.   These solemn events should be about the fallen, period.

Hatch apologized, but there can be no question that he was speaking from the heart of his political soul, and so it is worth pausing to parse his unguarded statement, as inappropriate as it was.

Hatch Does Not Understand His Own RFRA

             Hatch obviously drank deeply of the RFRA Kool-Aid.   He persists in claiming that RFRA “fixed” the First Amendment, as though it was an actual restoration of prior doctrine instead of the extreme standard and power grab it is.

You have to be pretty stubborn to persist with this rhetoric. If he or his aides actually read the prior cases, he might know that the Supreme Court in Employment Div. v. Smith was correct when it said that it had applied rationality review to the vast majority of its free exercise cases involving neutral and generally applicable laws. Or they could read the history of the Smith case at the Supreme Court. 

In 1997, the Court held RFRA unconstitutional in Boerne v. Flores, saying, again correctly that RFRA’s test had never been the First Amendment test, and particularly that the Court has never applied the “least restrictive means” test in any free exercise case as I explain here. They didn’t even adopt it in Church of Lukumi Babalu Aye v. City of Hialeah, the year RFRA was adopted, when Professor Douglas Laycock explicity urged them to. At the Hobby Lobby oral argument, Justice Scalia noted that the Court had never adopted the least restrictive means standard. Ever.

Essentially, Hatch’s point was that if the Court does not grant free exercise rights—and extreme ones at that–to for-profit behemoths like Hobby Lobby, he’ll introduce a constitutional amendment to “fix” the First Amendment. Apparently, he thinks it would be grand if the RFRA formula and its invitation to discrimination, misogyny, and fiscal privilege were made a permanent feature of the Constitution.

All I can say in response is that if the Court were to hold that Hobby Lobby can use its owners’ beliefs to discriminate against its female employees and impose its beliefs about medical care on them, Hatch should be busy fending off bills to repeal RFRA, which would take Congress out of the unilateral constitutional rights business, and re-institute the prior First Amendment regime that worked extraordinarily well until Congress passed RFRA.

Hatch Is No Madison

James Madison was the Framer who drafted the First Amendment. Let’s just say that Hatch is no Madison. While Hatch is an extremist, Madison and his generation fundamentally understood the tyranny that follows from giving religion full political rein.   Here is his brilliant analysis of the history and dangers of religion empowered by government backing in the iconic Memorial and Remonstrance:

Because experience witnesseth that eccelsiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect, point to the ages prior to its incorporation with Civil policy. Propose a restoration of this primitive State in which its Teachers depended on the voluntary rewards of their flocks, many of them predict its downfall. On which Side ought their testimony to have greatest weight, when for or when against their interest?


Sen. Ted Kennedy and His Attempt to Give Away the Old Soldiers’ and Airmens’ Home Land for a Bargain Price to Catholic University

Hatch’s lead co-sponsor for RFRA was Sen. Ted Kennedy, who, along with Sen. Rick Santorum, quietly attempted to give valuable land owned by the Old Soldiers’ and Airmens’ Home to neighboring Catholic University–at a steep discount.  explained what the potential sweetheart deal meant for our vetsat the time.

The back story is that Kennedy and Sen. Rick Santorum slipped an amendment into an unrelated bill to make Catholic University the sole purchaser of valuable land when the Home needed the proceeds of the sale of that land to continue operating. Had the deal gone through, the Home likely would have closed and Catholic University would have received a multi-million dollar windfall.

Some persistent and remarkable soldiers and airmen contacted me, we held a press conference with them in uniform, and once the scheme was public, Congress stepped back. The important takeaway is this: it took public disclosure of this unconscionable deal for Congress to put our vets ahead of a religious institution.

It took for-profit corporations to assert they are religious and RFRA gives them a right to discriminate against women for the country to take notice of yet another reach for religion that is troubling.
For Hatch, even on Memorial Day, and Kennedy (and Santorum), there is no religious privilege too great. Where is Madison when we need him? Oh, that’s right—his spirit resides in the First Amendment, as interpreted by the Supreme Court, not Congress.

Sen. Hatch: please leave our Bill of Rights alone. You have already done enough.

Marci Hamilton

Marci A. Hamilton is one of the United States’ leading church/state scholars and is a Fox Family Pavilion Distinguished Scholar in Residence in the Program for Research on Religion and Urban Civil Society at the University of Pennsylvania. She is also the Academic Director and President of CHILD USA, a 501(c)(3) nonprofit dedicated to interdisciplinary evidence-based research and tracking of medical, legal, and psychological developments to prevent and deter child abuse and neglect, which she co-leads with Dr. Steven Berkowitz, University of Pennsylvania Medical School, and Dr. Paul Offit, Children’s Hospital of Philadelphia. She holds the Paul R. Verkuil Research Chair at the Benjamin N. Cardozo School of Law, Yeshiva University, through 2018.