Why does the reaction to Indiana’s RFRA law alarm me? The reaction of celebrities and liberals was predictable, but the knee-jerk reaction of so many other individuals and institutions–including the NCAA–has surprised me. Few GOP candidates, even, have come to Mike Pence’s defense.
But what is most alarming is that the shoddy moral reasoning of the majority on the Supreme Court has now affected the culture at large. For decades now, the Court has decided social issue cases–abortion and same-sex marriage–as due process cases. The Fifth Amendment says that no person “shall be deprived of life, liberty, or property without due process of law.” They have held logically that any law that violates this due process clause is therefore unconstitutional. Reasonable enough. However, in these social issue cases, the Court has appealed to relatively recent precedent for its definition of “liberty.” They have cited what is known as “the sweet mystery of life” passage from Planned Parenthood v. Casey, an abortion case, to supply the definition.
The “sweet mystery of life” passage says, “At the heart of liberty is the right to define for oneself one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” (Think about that for a minute, especially as a basis for law. Does it not remind you of the Book of Judges, where “everyone did what was right in his own eyes?” Our justices are saying we have a right to this and any law that circumscribes that right is unconstitutional. Wow!) Justice Antonin Scalia bitingly, sarcastically, but correctly, responds to this passage, “I have never heard of a law that attempted to restrict one’s ‘right to define’ certain concepts; and if the passage calls into question the governments right to regulate actions based on one’s self-defined ‘concept of existence, etc.’ it is the passage that ate the rule of law.”
At first blush, this sweet mystery of life passage could even be read as protecting religious liberty. However, it has only been applied to those who challenge traditional or religious morality. Even the DOMA case, in which the plaintiff’s complaint was that the Treasury was withholding over $300,000 in tax relief from her same-sex spouse’s estate, the Court eagerly found not that Edith Windsor had been deprived of her property, but that she was deprived of her “liberty.” Edith Windsor has defined her existence such that same-sex marriage gives her meaning and that, now, is the heart of liberty.
So now the balancing test that the courts will make will be between the right to religious expression and the right to liberty, as defined by SCOTUS in the “sweet mystery of life passage. Liberty is no longer simply freedom from confinement; it has become this vague thing that if taken seriously would declare all laws unconstitutional. When the right to religion conflicts with the right to unfettered sexual freedom, I’m afraid religion will lose.