The Supreme Court, as in the Ten Commandments case, was closely divided. But ultimately, in a 5–4 decision, the Court upheld the veterans memorial. And it still stands in the Mojave Desert National Preserve today. The Court’s majority opinion cited our brief a dozen times in ruling that memorials to fallen soldiers could permissibly contain religious symbols without violating the First Amendment.
After the Court’s decision, I stood on Sunrise Rock with Henry Sandoz. It’s barren, beautiful, and totally isolated. And, rising up silently into the arid sky—sans burlap sack or plywood box—is that simple white cross memorializing our fallen heroes.
The consequences of our victory were far-reaching. Had the plaintiffs prevailed—had the Court ordered that seventy-plus-year-old veterans memorial torn down—the next crusade to remove the thousands of crosses and Stars of David from the tombstones in Arlington National Cemetery would surely not have been far behind.
And just as with the Ten Commandments case, we were only one vote away.
The legal challenges to religious liberty continue relentlessly. Before the Court today, the display of the Ten Commandments is less frequently the target of litigation—Van Orden settled that, for now at least. Instead, the main religious liberty issues to come before the Court today concern individuals trying to live according to their faith and facing legal persecution or punishment because of it.
The First Amendment’s text protects “free exercise” of religion. But this was readily understood at the time of the American Founding as encompassing a substantially broader array of behavioral protection than more limited protections for either “worship” or “conscience.” As my old friend Judge Jim Ho of the Fifth Circuit wrote in a case earlier this year:
The broader scope of “exercise”—in contrast to “worship” and “conscience”—indicates that, at the time of the Founding, the public would have understood the right to “free exercise” to extend beyond mere ritual and private belief to cover any action motivated by faith. Consistent with that conclusion, Congress amended the draft language that later became the First Amendment, replacing the original phrase “rights of conscience” with the “free exercise of religion.”
Perhaps no case illustrates that more acutely than the story of the Little Sisters of the Poor. The Little Sisters of the Poor are an order of Catholic nuns who have taken vows of poverty and pledges to help the elderly and the needy. When Congress passed Obamacare, it included within it a so-called “contraceptive mandate” that required the Little Sisters and other religious organizations to pay for contraceptives and abortion-inducing drugs for others. If they refused to do so, they faced millions of dollars in fines.
The Little Sisters, understandably, concluded that paying for abortifacients would be inconsistent with their Catholic faith. And the Obama administration, in response, attempted to offer an alleged “compromise” by Solomonically splitting the baby. The problem is that their “compromise” did not fix the problem; it still required them to subsidize activities contrary to their faith. And so it was rejected by both the United States Conference of Catholic Bishops and the Little Sisters of the Poor.
The mainstream media loves to lionize Pope Francis any time he expresses support for economic or environmental causes that are put forward by the left. Curiously, that same media largely ignored that when he visited the United States in 2015, Pope Francis made a point to sit down and personally meet with the Little Sisters of the Poor at their residence across the street from Catholic University in Washington, D.C. The Pope spent fifteen minutes at their home and shook hands with each of the Sisters in their chapel in order to express his “support for them in their legal battle,” a Vatican spokesman explained.
Nevertheless, the Obama administration’s legal position continued to be that these intrepid nuns should be forced to indirectly subsidize contraception and abortifacients that directly violated their sincerely held religious beliefs.
The legal issues pertaining to Obamacare’s “contraceptive mandate” first made it to the Supreme Court in the 2014 Burwell v. Hobby Lobby Stores case. This was a similar case in which Hobby Lobby, a privately held corporation owned by evangelical Christians, raised religious objections over being forced to pay for abortion-inducing drugs. By a vote of 5–4, the Supreme Court upheld Hobby Lobby’s religious liberty rights, ensuring that the owners of that company could continue to live according to the dictates of their faith.
The Little Sisters’ case was held at the Court pending the resolution of the Hobby Lobby case and, ultimately, the litigation against the Sisters was—thankfully—settled by the Trump administration.
When the Supreme Court decided Hobby Lobby, it did so not on constitutional grounds, but on statutory grounds. The Court ruled in Hobby Lobby’s favor on the grounds of the Religious Freedom Restoration Act, or “RFRA,” a 1993 piece of federal legislation.
RFRA was passed in direct response to the largely unpopular 1990 Supreme Court case of Employment Division v. Smith, which had held that enforcing neutral laws of general applicability does not violate your constitutional right to religious liberty. At the time that RFRA was enacted into law, it passed by a whopping 97–3 margin in the Senate and in the House by a unanimous voice vote. In the Senate, such liberal stalwarts as Ted Kennedy and Chuck Schumer voted in favor of RFRA. It was signed into law by Democratic president Bill Clinton.
Just three decades ago, in Congress at least, religious liberty was a bipartisan commitment. Democrats and Republican disagreed on issues of taxes, spending, and so many other policy areas. But when it came to protecting the rights of believers to live according to the dictates
