God Bless David Frohnmayer: A Lion for the Religious Liberty that Protects the Vulnerable, Understands the Fallibility and Potential Evil of Humans, and Follows Common Sense, Passes Away

I was sad to learn of the passing of David Frohnmayer, former Oregon Attorney General, Dean of the University of Oregon Law School, and President of the University of Oregon. David will long be remembered for his public service and his intelligence and especially for his wisdom. He is one of my heroes for his crusading work for his daughters, all of whom have suffered and two have died from Fanconi Anemia, and for his wise analysis of religious liberty boundaries over twenty years ago when he litigated Employment Div. v. Smith.

God works in mysterious ways. Thankfully, Frohnmayer was the Attorney General of Oregon when Employment Div. v. Smith was litigated, because he had the knowledge and wisdom to argue that the drug counselors in that case–who had signed an agreement not to use illegal drugs or they would lose their jobs, and then used peyote as part of a religious ceremony–did not have a First Amendment free exercise right to break Oregon’s criminal laws or to receive unemployment compensation.

Unfairly maligned then and still by those who are so blinded by ideology they refuse to see the facts, history will lionize him for his role in Smith. As Oregon’s Attorney General, he litigated Smith on a singular theme that rings true to this day: the public good mandates fear of the slippery slope of extreme religious liberty, which as he says, was effective:

During oral argument [before the Supreme Court], it was clear that the slippery slope argument really did work

Frohnmayer had first-hand experience with religious actors flaunting the law. In particular, the crime wave introduced by Bhagram Shree Rajneesh was on his watch as Attorney General. In Frohnmayer’s words:

We had experienced an immediate past history in the saga of Rajneeshpuram, a theocratic community whose leaders had terrorized small populations in central Oregon and engaged in major violations of federal and state criminal laws. My office had been extensively involved in bringing potentially violent and even tragic matters to a peaceful resolution only a few years earlier. We were politically and institutionally familiar with the serious problems that stem from theocratic structures.

Of course, Rajneesh was not the first or last religious leader to introduce criminal conduct into Oregon, which has been a mecca for other extreme believers as well, including the Followers of Christ, who have a tragic history of allowing children to die from religiously motivated medical neglect.

Why is it that prosecutors and prison administrators are among the first to understand that extreme religious liberty is dangerous and antithetical to core American values? The answer is that many religiously motivated criminals appear in their courts and jail cells.   Accordingly, they understand through experience that religious liberty sits atop a slippery slope that lands in the criminal code and a well of human suffering. In addition, they understand how subtle changes in legal standards alter the balance between justice, decency, and a license to violate the law. I could not agree with Frohnmayer more that the free exercise statutes that were obtained by religious lobbyists in the wake of Smith are most problematic in their inclusion of the “least restrictive means” standard:

It invites endless revision of statutory language to address worst-case hypotheticals. It ignores the process realities of limited time and political consensus building. It is the complete obverse of deference to legislative judgment once found in the aftermath of the famous footnote four of United States v. Carolene Products Co. Instead of a doctrine that sustains legislation on the basis of grounds that rationally can be conceived, it proposes a doctrine that invalidates legislative choices based on wholly hypothetical alternative choices that might rationally have been more “narrowly” construed. This, frankly, is a preposterous and unsustainable calculus by which to evaluate the constitutional legitimacy of legislative proposals.

As he also pointed out, the backlash against Smith for the proposition that the First Amendment was not enough to protect religious liberty was wrong as a matter of fact:

In fact, the Oregon Legislative Assembly immediately created an affirmative defense to a crime of peyote use if the accused held a good faith religious belief.

Frohnmayer set an example for prosecutors across the country, all of whom would do well to study his words and his life.  May he rest in peace having fought the good fight for the victims of religiously motivated lawbreakers.



Picture Credit: By William Beutler (Flickr) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons

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.