The political branches have demonstrated that they are better equipped to protect religious minority rights and respond to America’s increasingly pluralistic society. In light of the court decisions discussed earlier, consider the following:
- The Religious Freedom Restoration Act, signed into law by President Bill Clinton in 1993, created “very broad protection for religious liberty.” It received unanimous support in the U.S. House of Representatives and near-unanimous support in the U.S. Senate. It applies to all sincerely held religious beliefs. It came after the Supreme Court ruled against a Native American’s right to exercise his religious beliefs.
- The Army guaranteed strong protection for religious practices, specifically the practices of observant Sikhs, through Army Directive 2017-03. It directs “Army uniform and grooming policy to provide wear and appearance standards for the most commonly requested religious accommodations.”
- The Department of Veterans Affairs, recognizing the religious diversity of its servicemembers, has funeral guidelines to honor each fallen soldier’s religious convictions.
- Based on Title VII of the Civil Rights Act of 1964, the Supreme Court upheld a Muslim teenage girl’s right to wear a hijab—a headscarf worn for religious reasons—without discrimination in the hiring process.
- The Department of Defense issued Instruction 1300.17(4)(a), which states that “[t]he DOD places a high value on the rights of members of the Military Services to observe the tenets of their respective religions.” The Instruction directs that “[r]equests for religious accommodation will be resolved in a timely manner and will be approved,” so long as they do not “adversely affect mission accomplishment.”
- Congress passed the National Defense Authorization Acts for fiscal years 2013 and 2014, which provides for the “[e]nhancement” and “protection of rights of conscience.”
- The Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 permits the placement of commemorative monuments in memory of “service in the Armed Forces” in Arlington National Cemetery, and it does not prohibit the inclusion of religious symbols on those monuments.
- In 2011, the executive branch accommodated Amish religious beliefs regarding the issuance of Social Security numbers.
- Federal law allows religious objectors to Social Security taxes—notably including the Amish, one of whom lost a Free Exercise Clause challenge to such taxes in 1982—to apply for exemptions for themselves and their employees.
Some argue that an originalist approach would allow a government to “endorse its preferred religious teachings and be candid about what it was doing.” Others argue that an originalist approach would not “address the danger that the majority will, through government endorsements of its own faith, marginalize minority groups.”
The facts do not bear this out. Moreover, as Establishment Clause expert Professor Michael McConnell states, “the Court’s intervention over the last forty years has made things worse, not better.” Of course, courts have an important role in protecting religious minorities. But as Professor Hillel Y. Levin argues, the need for judicial intervention is the exception and not the rule.
No government institution—including the judiciary—can perfectly protect against the human rivalry and selfishness that critics fear would take hold under an originalist approach. But as a matter of structure, the political branches have greater capacity to protect the rights of religious minorities and to respond to bad policy.
This blog series is based on an article in the Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”