“Strict scrutiny” and the religious right

This evening I heard on our local public radio station a version of the following news story:

Proposed bill would protect expressions of religion  (Columbus Dispatch)

Here’s the deal: Two Ohio state legislators–one Republican, one Democrat, but united in support of a policy that can be fairly described as characteristic of the religious right–have introduced a bill that would subject government actions to a “strict scrutiny” standard if they restrict religious exercise.  This is an Ohio-specific version of the Religious Freedom Restoration Act, which Congress passed in the 1990s after the Supreme Court’s much-decried Oregon v. Smith decision. In that decision, the prevailing justices held that the First Amendment’s promise of free religious exercise did not require governments to provide religious exemptions to laws–specifically, that the state of Oregon did not have to exempt people who use peyote religiously from the state’s ban on peyote. In other words, Oregon v. Smith rejected the “strict scrutiny” standard, which would tend to press governments to provide exemptions. RFRA was intended to reinstate the “strict scrutiny” standard. (The Supreme Court later struck RFRA down, in part, but that’s another complicated story.)

The federal version of RFRA had very broad support, from left to right. Civil libertarians supported it as a way to protect religious minorities. The Ohio RFRA, however, at least as it’s being described in the news by its sponsors, is not about protecting the kinds of groups that civil libertarians would think of as “religious minorities.” Rather, the bill is about resisting secularism so as to bring Christian expression back into the public square. The sponsors are touting the “strict scrutiny” standard as a way to authorize things like nativity scenes in government buildings or prayer in public schools. That is, what Ohio RFRA’s sponsors want held to “strict scrutiny” are efforts to exclude religion from public space–and, again, the examples I’ve seen the sponsors give of “religion” are all Christian or, at most, Judeo-Christian.

This is an intriguing example of a phenomenon I was discussing just today in my survey course on American religious history, where we were discussing the contemporary “culture wars.” In our (admittedly simple) map of the culture wars, you have on one side religious liberals who advocate secularism in the name of protecting church-state separation–that is, in the name of the First Amendment’s ban on an establishment of religion. On the other side, you have religious conservatives who oppose secularism in the name of defending religious freedom–that is, in the name of the First Amendment’s promise of free religious exercise.

The Ohio RFRA illustrates nicely the conservative side of the conflict. It’s an anti-secularist initiative launched in the name of protecting religious freedom. What’s particularly interesting about Ohio RFRA is how it invokes “strict scrutiny”–which the courts developed to safeguard free exercise–to try to circumvent rulings made by the courts to prevent establishment. Of course, from the sponsors’ point of view, getting nativity scenes back in courthouses or prayer back in graduation ceremonies are also cases of safeguarding free exercise–as the religious right understands that concept.

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