There are two unrelated news stories that make, I believe, the same point: defending the rights of your neighbor, even if you disagree with that neighbor, is important. This is a foundational concept that gets lost far too often. The first event I want to discuss is the tragic terrorist attacks in Brussels, the second is Disney’s claim they will leave Georgia if the Religious Freedom Restoration Act (RFRA) is signed into law. These two stories cover different events and rights, but the underlying point is the same.
The ISIS terrorist attacks in Brussels were horrific. Suicide bombers killed 31 people and injured another 250. The attacks follow the November attacks in France where 130 people died. 1 I wrote afterwards on Facebook that the terrorism in Brussels would do three things: 1) Push Europe to close it’s borders, 2) Complicate the UK’s vote on leaving the EU (“Brexit”), and 3) Give Trump more fodder in the primaries. I included this sub-point:
President Obama being in Cuba, acting as an equal with the Cuban dictatorship government, while Brussels burns from terrorist attacks will shape how people view this event.
Predictably, media narratives began flying with conservative outlets criticizing the President and liberals defending. Attacking and criticizing the President’s response to Brussels was low hanging fruit. It was predictable and unsurprising. It also misses the point.
The President’s response to Brussels is unsurprising because he views terrorist attacks as nothing more than a crime. This isn’t a criticism of President Obama, but a statement of fact on how he processes terrorism. The proof for this can be found after a mass shooting occurred in Rosenburg, Oregon. President Obama gave a press conference where he called for more gun control measures and criticized the focus of the media:
I would ask news organizations – because I won’t put these facts forward – have news organizations tally up the number of Americans who’ve been killed through terrorist attacks over the last decade and the number of Americans who’ve been killed by gun violence, and post those side-by-side on your news reports. This won’t be information coming from me; it will be coming from you.We spend over a trillion dollars, and pass countless laws, and devote entire agencies to preventing terrorist attacks on our soil, and rightfully so. And yet, we have a Congress that explicitly blocks us from even collecting data on how we could potentially reduce gun deaths. How can that be?
The media happily complied with this brief news cycle narrative that mass shootings were more dangerous terrorist attacks. On a statistical level, the President is right. You’re more likely to die from a mass shooting than a terrorist attack. You’re more likely to die of a lot of things before a terrorist attack. The President’s point was mass shootings are more dangerous to an American than terrorist attacks. On a statistical level, he’s right. On a holistic level, he’s wrong. It’s on this holistic level that the media misses the point.
Terrorist attacks are still more dangerous to Americans. Terrorism has led to an erosion of rights as governments attempt to deal with it. After mass shootings, Americans have pushed Congress to protect Second Amendment rights. With terrorism, the response is far more muted. In the United States, we enacted the Patriot Act and allowed the NSA and FBI to snoop through metadata. More recently, France enacted sweeping emergency powers to the central government. The French enabled warrant-less raids, house arrests, and censorship of speech and assembly to prevent terrorism. In Belgium, local prosecutors admitted they should have done more to stop the attacks. We’ll likely see them enact reforms in an effort to prevent future attacks.
We’ve seen, whether domestic and abroad, when a government is confronted with terrorism, it expands and centralizes power to prevent terrorism. In gun control debates, Second Amendment advocates have been able to quell emotional narrative swings to protect Constitutional rights. In the wake of terrorism, we have not had the same check on government excess. Of the original slate of Presidential candidates, both Republican and Democrat, only Rand Paul excess government power in the realm of terrorist prevention. There were over 20 candidates between the two major parties. This is concerning since terrorism is not going anywhere, particular since the Associated Press is reporting ISIS has another 400 fighters trained to attack Europe in waves. Mass shootings can be handled and checked by states and local authorities. We have not lost rights to mass shootings. We are losing rights and seeing government expand in dealing with terrorism. 2
Let’s switch tracks to Disney in Georgia. The Georgia legislature passed what is called a Religious Freedom Restoration Act (RFRA), the bill currently awaits the Governor’s signature. Disney and several other companies claim the bill is discriminatory against gays and lesbians because it could allow denial of service based on sexual orientation. There are two ironies about this story: 1) Disney’s claim is factually wrong; 2) The people cheering the loudest over Disney’s stance wouldn’t give Disney the right to announce that opinion. I’ll flesh out both points below.
On the first point I need to cover some history: RFRA’s did not exist on a federal or state level until 1993. This is because the Supreme Court made a shocking decision in the 1990 case Employment Division v. Smith that severely restricted Free Exercise of Religion for religious adherents. Prior to the Smith case, if a person’s religious beliefs conflicted with following the law, courts would try and accommodate a person’s faith and grant an exemption when possible. Law Professor and former 10th Circuit Court of Appeals judge Michael W. McConnell’s seminal piece in 1990, The Origins and Original Understanding of Free Exercise of Religion in the Harvard Law Review, showed that historically, American courts chose to create exemptions for religious adherents in order to prevent forcing them to choose between following God or country. Examples of this would include giving exemptions to religious groups from enlisting in the military because their faith instructed them to be pacifists. During the Prohibition Era, Catholics received accommodations to use wine during communion. In these ways, courts sought to accommodate faith while upholding the law. The reason accommodations were allowed was because courts had few concerns religious adherents were going to abuse exemptions and break the law. They merely wanted to follow their faith.
Justice Scalia’s majority opinion in Employment Division v. Smith destroyed the exemption doctrine (as I’ve written before, this is my largest and most pointed disagreement with Scalia). Employment Division v. Smith held that if Congress passed a law that was a “neutral law of general applicability” then a person could not be granted an exemption because the law was not passed to target faith, but to achieve a government end. In other words, if the law applied generally to everyone, then you couldn’t claim discrimination on the basis of faith. Religious adherents caught between a generally applicable law and their faith were forced to choose between God and country. 3
In Employment Division v. Smith, the state of Oregon wanted to deny unemployment benefits to two people who attended a Native American Church. These two people were drug rehab counselors and, as part of their religious exercises, ingested peyote during their services. The ingestion of peyote violated state and federal drug laws. Under the exemption doctrine, the Court would normally look to determine the sincerity of beliefs and see if an accommodation could be made under law to allow the practice of religion while keeping statute. Scalia removed this requirement from the Court and said the law was neutral and applied to everyone. Therefore, the state could deny benefits because the law did not target the native american church, drugs were banned from everyone.
The Federal RFRA was passed in 1993 to return the law to pre-Smith conditions. The law had wide bipartisan support. Bill Clinton gave a speech supporting the passage and signing of RFRA. Everyone generally agreed that forcing people to choose between their faith and their country was a bad law to have in place. It harmed the religious rights of minority groups. The Federal RFRA was originally meant to cover state and federal government. But the Supreme Court struck down RFRA applying to the states in a case called City of Boerne v. Flores. This meant that states had to pass their own RFRA on an individual basis to have pre-Smith accommodation doctrine in place. The Federal RFRA still applies to the federal government. About 30 states followed through and passed their own RFRA. Georgia and Indiana are just now considering them.
On the merits, Disney is wrong on their interpretation of what RFRA does. RFRA’s have never, under any court, allowed discrimination against another person on the basis of race or any other situation. You can go search for it yourself. There have been people who have claimed that, but they have never won. A great example is Indiana where this same issue came up. In Indiana, state law does not offer protective status to people on the basis of sexual orientation. Indiana law covers race, sex, and other forms of discrimination, but not sexual orientation. In the city of Indianapolis, sexual orientation is a protected status. Which means you cannot discriminate on the basis of sexual orientation. If you’re outside the city of Indianapolis, you can discriminate on the basis of sexual orientation freely. RFRA isn’t needed there because you can’t be sued on that basis. RFRA is a defense if you’re charged with violating the law. In the city of Indianapolis, you cannot discriminate on the basis of sexual orientation. If you did discriminate, RFRA would be no help. They have never been held to overrule a state’s compelling interest in preventing discrimination. Passing RFRA does nothing to the rights of people with different sexual orientation. On the merits, Disney and other companies are pandering to political correctness, not standing for an important moral truth.
However, what makes the Disney situation interesting is that if progressives had their way, Disney would not be able to make take this stand. You can see this quite easily in progressive reactions to two Supreme Court cases: Citizens United and Hobby Lobby.
In Justice Ginsberg’s dissent of Hobby Lobby, she argued it was impossible for corporations to have closely held religious beliefs and for them to act on those beliefs. She said that outside a profit motive, corporations could not act for a higher good. There is little evidence to support her argument. Corporations are nothing more than a group of people gathered together for a purpose. Generally speaking, the bottom line profit is the main purpose. However, churches and non-profits are corporations as well. We’ve also seen a rise in charitable corporations (see the TOMS corporation for an example). These groups gather together for a variety of purposes that are not overtly profit driven. What progressives are really saying is that if you declare yourself to be a typical corporation with a profit motive, you suddenly lose your Constitutional right to speech and religion. We know this is untrue. First because no such restriction is listed in the Constitution. Second, because media organizations are also corporations and their speech and rights to advocacy are unchallenged despite their corporate form. 4 A textualist approach shows no such limitation in the Constitution, nor is it supported by historical analysis.
In the Citizens United case, activists sought to limit a corporation’s free speech in the political process. Those against Citizens United wanted to limit or ban corporations from contributing or even speaking out about candidates or political issues. They wanted corporations to be forced to use PAC money in making statements, anything else would be banned. This is not an exaggeration. In oral arguments of Citizens United, the Justices tested the limits of the power the government was seeking. In the first oral arguments, the Government said their stance was if a book written by a corporation had just one sentence in it of “express advocacy,” the government could ban it. 5 Chief Justice Roberts rephrased the analogy as a book of 500 pages talking about a Union’s history of political activism and at the very end, it had one sentence that said: “Vote for X candidate.” The government said because of the one sentence, it had the power to ban the entire book. This was a shocking admission and a second set of oral arguments were ordered. In the second oral arguments, the government attempted to backpedal from this position and asserted that the government would never actually ban a book, and you could take their assurances book banning would not occur (banning pamphlets was still fine). 6 Needless to say, a majority of the Court did not buy those assurances.
Which brings us to Disney. Disney is expressly advocating for Georgia’s governor to veto a RFRA bill. Disney is not advocating on behalf of a candidate, but it is advocating a position in the political process. Disney is joined by several other organizations in expressly advocating on one side of a bill. If you read any of the statements put out by these corporations, they make their stand a moral one about doing what is right. We have a publicly listed corporations engaging in moral speech in the political sphere. If you listen to any of the left for the past decade, such stances should be impossible because corporations don’t have morals and shouldn’t engage in express advocacy. Since Disney is speaking out on something progressives agree with, there has been total silence from anyone on the left saying Disney should stop.
Which brings me back to my original point: protecting rights is important, even if you disagree with how those rights are used. This isn’t a cliché statement I’m trying to make with these two news stories. The fundamental rights of real people are under assault from current events. Those who cheer Disney, Apple, and other companies for standing up for a principle immediately claim those same types of companies have no rights when its Chick-fil-A, Hobby Lobby, or non-profits like Citizens United. In the name of stopping terrorism, France suspended civil rights of French citizens. These events and ideas have consequences. Rights belong to everyone, or they belong to no one. No man or government is allowed to cherry pick who gets to use a right.
Rights matter. They aren’t supposed to be taken away when a political enemy uses them or a government finds them inconvenient. The purpose of the Declaration of Independence and the Constitution was to lay out the framework for how rights, given by God, must be acknowledged and respected by a good government. If a government started taking those rights away, that is when revolution was required. What we need right now is a ready defense of human rights. Even when we disagree with the person using those rights.
- Europe is not alone in these attacks. As I was editing this piece over Easter weekend, Pakistan was struck by suicide bombers at a public park. Women, children, and families were slaughtered in a park while celebrating Easter. There are far too many blind eyes to what is happening in the Middle East and Africa when attacks happen. ↩
- I understand some people will argue that mass shootings have led to threats of reigning in gun rights. I sympathize with this view. But in comparison to privacy, 4th amendment, and the ongoing debate over torture used in interrogation, gun rights have largely come out unscathed in comparison. Terrorism has helped enlarge the size and scope of government, mass shootings and gun violence have not. ↩
- I argue an originalist and textualist stance on Free Exercise Clause supports accommodations, not Scalia’s neutral law standard. If you read Prof. McConnell’s excellent history and case law as it developed after the passing of the Constitution, you see the accommodations position supported. Scalia’s neutral law standard has never made sense. I, with many others, have long theorized Scalia’s commitment to the government’s war on drugs clouded his judgment in this case because illegal narcotics were involved. ↩
- I’ve read some analysis that says there is a difference between a media corporation and a regular corporation. News media is mentioned as the press in the First Amendment and gets special protections a normal corporation would not receive. This is flat untrue. News media organizations are out for a profit every bit as much as a typical organization. Their trade means they deal in speech and press more, but any corporation can decide to take on more press. A textualist analysis of the Constitution finds no such divide in the First Amendment. Nor is there support for the idea that just because you enter a corporation that somehow that means you lose rights. ↩
- Express Advocacy means a person or group says: Vote for Han Solo 2016! You’re expressly advocating on behalf of a candidate. ↩
- Then Solicitor General Elana Kagen made the second oral arguments before the Court and spent her time dealing with this issue. ↩