Justice

The New Republican War On Religious Freedom

CREDIT: AP Photo/Manuel Balce Ceneta

“Never have the threats been greater to religious liberty than they are right here and now today,” Sen. Ted Cruz (R-TX) told a campaign rally in Iowa last August, less than three months before he called for members of one of the world’s great faiths to be segregated away from Americans who share his religious beliefs.

Former Florida Gov. Jeb Bush (R) compared federal rules requiring religious groups to fill out a short form in order to invoke an exemption from birth control regulations to “Big Brother.” Months later, he suggested that the United States should limit its generosity to members of Bush’s own religious faith.

Mike Huckabee, Kim Davis, Mat Staver

CREDIT: AP Photo/Timothy D. Easley

Former Arkansas Gov. Mike Huckabee (R-AR) called efforts to make anti-gay Kentucky clerk Kim Davis comply with her obligation not to engage in unconstitutional discrimination a “criminalization of her faith.” He also called for American to engage in religious discrimination on Tuesday, telling MSNBC that if Episcopalians “were the ones that were wreaking havoc,” we would discriminate against them as well.

But, of course, none of these Republican presidential candidates are talking about discriminating against Episcopalians. They want to impose collective punishment upon Syrian Muslims because those Syrians may share a similar religious identity with the predominantly French and Belgian nationals who committed acts of terrorism in Paris last Friday.

Separate And Unequal

Cruz has perhaps been the most outspoken opponent of religious liberty in the wake of the Paris attack. Indeed, in an interview with Fox News on Sunday, Cruz called for an explicit policy of religious segregation. Syrian Muslims who are “fleeing persecution,” Cruz told Fox, “should be resettled in the Middle East in majority Muslim countries.” Meanwhile, “Christians who are being targeted for genocide, for persecution . . . we should be providing safe haven to them.”

The Texas senator justified this policy of religious discrimination because he claimed that we cannot tell if Muslim refugees “are terrorists here to kill us or not.”

In reality, refugees seeking to resettle in the United States undergo a lengthy screening process intended to weed out security threats. Refugees are first screened by the United Nations, which determines if each individual faces “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” in their home nation. They are then screened again by the United States government in a process that includes an interview, a medical exam and “an interagency security screening process aimed at ensuring the refugee does not pose a threat to the United States.” On average, this process takes between 12 and 18 months, although Syrian refugees are expected to undergo an even lengthier process.

Domestic attacks by Muslims within the United States are also exceedingly rare. Since 9/11, an average of nine American Muslims per year were involved in terrorism plots with in the United States. Though most of these attacks were disrupted, the successful plots caused 50 deaths over the course of 13 and a half years. Meanwhile, an average of 337 attacks by right-wing extremists occurred every year in the decade after 9/11, causing a total of 254 deaths.

Our First Freedom

In any event, discriminating against refugees based solely upon their religious faith violates the Constitution. As the Supreme Court explained in Church of Lukumi Babalu Aye v. City of Hialeah, “the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” Cruz, Bush and others would discriminate against many refugees because of their religious belief. The Constitution treats such conduct with extraordinary skepticism.

Indeed, the Constitution enables victims of discrimination to seek remedies that are not normally available in federal constitutional litigation. On Monday, shortly after the first wave of nearly two dozen governors announced opposition resettlement of Syrian refugees in their states, ThinkProgress noted that state governors cannot constitutionally decide who is allowed to enter the United States and travel within it — this power rests with the federal government. We also noted a caveat to this rule, however, “states still retain the power to deny their own resources to the federal government, so they could potentially make settlement of refugees more difficult than it would be if the states cooperated.”

Yet this caveat does not apply if states engage in unconstitutional discrimination. The Constitution generally does not permit either religious discrimination or discrimination based on a person’s national origin. Thus, while states remain free to deny their resources altogether to refugee resettlement efforts, a state that refuses to assist only Muslim or Syrian refugees would raise grave constitutional doubts about their actions.

It should be noted, moreover, that Cruz and Bush’s proposal to follow an explicit policy of treating Christians more favorably than Muslims is far more offensive to our Constitution and our laws than another so-called religious liberty issue that has become a cause célèbre among Republicans. Earlier this month, the Supreme Court announced that it would hear a bloc of cases consolidated under the name Zubik v. Burwell. Unlike Cruz and Bush’s proposals, Zubik does not involve religious discrimination. Indeed, if anything, it involves favoritism towards people of faith. The regulation at issue in Zubik requires employers to include contraceptive coverage in their employees’ health care plans, but it also allows employers with religious objections to birth control to exempt themselves from that requirement if they fill out a brief form that identifies the company that administers their health plan. The government then works directly with that company to ensure that the employer’s workers receive birth control coverage.

The plaintiffs in Zubik, however, claim that the federal government has not provided them with enough special treatment and that they should even be exempt from having to fill out this form or otherwise identify their insurance administrator. As a matter of federal law, this should be a weak case. Because the rule at issue in Zubik does not single out people of faith for inferior treatment, the Constitution’s Free Exercise Clause has no impact on this case. Instead, Zubik turns upon the proper meaning of the federal Religious Freedom Restoration Act, which places limits on the federal government’s ability to “substantially burden a person’s exercise of religion.” Admittedly, the Supreme Court largely read the word “substantially” out of this law in its 5-4 decision in Burwell v. Hobby Lobby. Nevertheless, if the text of the law actually applies then the Zubik plaintiffs face the difficult task of arguing that their faith is substantially burdened if they are asked to fill out a short form.

In any event, Republican presidential candidates have spared no hyperbole in describing this issue to their supporters. This is the issue that inspired Bush to compare Obama to “Big Brother.” Huckabee asked “what kind of Christian” could require a religious objector to do paperwork before they receive an exemption from the law. Cruz told a New Hampshire audience that “there are few ideas more contrary to who we are as Americans” than the federal government using “the jack boot of government” against one of the plaintiffs in the Zubik cases.

The Constitution, however, disagrees. It offers a much stronger condemnation to the kind of religious discrimination Bush, Huckabee, and Cruz prefer.