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A conservative SCOTUS majority doesn’t guarantee religious freedom

Religious liberty is not a partisan concept; it is an American value that we must protect.

Supreme Court nominee Amy Coney Barrett, meets with Sen. Martha McSally, R-Ariz., Wednesday, Oct. 21, 2020, on Capitol Hill in Washington.
Greg Nash, Associated Press

When I was 8 years old, long before I ever thought of becoming a lawyer, I was fortunate to meet John Hostetler, who I knew as the father of my best friend in Pennsylvania. It wasn’t until I had practiced law for many years that I came to understand his importance in the fight for the free exercise of religion guaranteed in the First Amendment to the Constitution.

He was a sociology professor at Temple University, who told me that he wrote books about the Amish for his job. In fact, he was the foremost scholar on Amish religious, social and educational practices. What fascinated me as a lawyer is that Hostetler was the force behind one of the most important Supreme Court decisions on the free exercise of religion — Wisconsin v. Yoder, decided in 1972.

In researching the life of this kind and attentive father of my friend, I discovered someone deserving of my admiration as a lawyer and religious person. He wrote books to help people appreciate the admirable qualities and beliefs of the Amish, who were persecuted and misunderstood. Because their religion is closely tied to their agrarian lifestyle, Amish parents removed their children from school at age 14 to learn by doing on their farms. State law, however, required children to remain in school until age 16, subjecting Amish parents to punishment for adhering to their religious beliefs in violation of state law.

Hostetler understood that this conflict put Amish life, based on their religious beliefs, at risk. He convinced an Amish community in Wisconsin to challenge this law in the courts, and testified as an expert witness in the case. The result was a decision by the Supreme Court exempting the Amish from this law and finding that the state could not infringe upon the free exercise of religion absent a “compelling state interest” — a high standard that protected religious liberty for all. This decision was unanimous, supported by justices appointed by Presidents Roosevelt, Eisenhower, Kennedy, Johnson and Nixon.

This standard was the law until 1990, when Justice Scalia, in a 5-4 decision, eviscerated this important precedent in the case of Oregon v. Smith, which reduced the “compelling state interest” standard to a standard that merely requires state law to be neutral on its face to religion, whether or not it, in fact, burdens the free exercise of religion.

Dissenting conservative justices in Oregon v. Smith called the decision “incompatible with our nation’s fundamental commitment to individual religious liberty,” noted that it “effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution” and denounced Scalia’s acceptance of the repression of minority religions, previously protected by the courts, allowed by this new legal approach. This decision was so appalling to both conservatives and liberals that it spawned the passage of RFRA (Religious Freedom Restoration Act) in 1993, which passed under a Democratic administration by nearly a unanimous vote in both the House and the Senate. RFRA attempted to restore the compelling state interest standard.

Religious liberty is not a partisan concept; it is an American value that we must protect. Appointing “conservative” justices to the Supreme Court does not ensure the protection of religious liberty.

Amy Coney Barrett has limited experience on the bench, so we know little about her judicial approach. We do know she is a self declared follower of Justice Scalia’s judicial thinking. Scalia’s approach severely damaged the work done by Hostetler in his courageous defense of a persecuted minority religion. If the rush to judgment to confirm a “conservative” judge before the people express their will in an election is based on a concern for religious liberty, perhaps this process needs to be reconsidered.

Annette W. Jarvis is a nationally recognized expert in the area of business bankruptcy law. Among other accolades, she was recognized by the Utah State Bar as the 2016 Lawyer of the Year.