Many of us may have heard of the Religious Freedom Restoration Act, which has been in effect since 1993 during the administration of President Bill Clinton. This was an era in which a broad coalition of liberals and conservatives often worked together on religious liberty issues.
Of course, RFRA has been vilified by liberals as a sop to conservatives, chiefly because it was used successfully in the 2014 U.S. Supreme Court “Hobby Lobby” case that allowed the crafts store chain to not provide birth control coverage for its employees. RFRA is frequently connected to religious liberty debates linked to LGBTQ issues, as well.
But now, many critics of RFRA are praising it after it was employed in the defense of Scott Warren, a Unitarian who was charged with harboring illegal aliens near a border crossing in the Arizona desert in January 2018. Our own Bobby Ross wrote about this case here and here.
A new Associated Press analysis describes why RFRA suddenly became important again:
Religious liberty is often a high priority for conservatives, but last week’s acquittal of an Arizona man prosecuted for aiding migrants along the U.S.-Mexico border is spotlighting the ability of religious freedom law to shield people of faith regardless of political ideology.
The case of Scott Warren, a college instructor and volunteer with a humanitarian group that helps migrants, gained nationwide notice as he challenged what he called the government’s “attempt to criminalize basic human kindness.”
Much of that attention focused on Warren’s acquittal on felony charges of harboring. But he was also acquitted Wednesday of a separate misdemeanor charge after his lawyers argued that his religious beliefs motivated him to leave water for migrants crossing through a desert wilderness area.
This was written by Elana Schor, the AP reporter for religion and politics who is part of AP’s new global religion reporting team, announced Sept. 5 that’s being paid for by a grant from the Lilly Endowment. (I broke the story about the grant here back in April 2018).
Warren’s acquittal this past week was a huge victory for the Religious Left.
The case is fascinating in itself but I’ll be concentrating on coverage of the religious/legal aspects. From The Intercept, which has been following this case closely:
PERHAPS THE MOST significant beacon of hope to emerge from Warren’s appearance in court was not his felony acquittal, but a second decision read from the bench this week by U.S. District Judge Raner Collins.
Warren was one of nine volunteers with the faith-based humanitarian group No More Deaths to receive federal misdemeanor charges for leaving food, water, and other humanitarian aid supplies on protected public lands and trespassing by driving on restricted roads in 2017. Kuykendall and Knight invoked the Religious Freedom Restoration Act in his defense, arguing that the provision of humanitarian aid was a central tenet of Warren’s deeply held spiritual beliefs. The misdemeanor trial was held earlier this year, but Collins refrained from delivering his decision until Warren’ felony case concluded. After reading Warren’s not guilty verdict Wednesday, Collins did just that.
The story then references a Columbia University law professor, Katherine Franke, who is in charge of the university’s Law, Rights and Religion project.
On day one of Warren’s trial, Franke and her colleagues Elizabeth Reiner Platt, Kira Shepherd, and Lilia Hadjiivanova published a sweeping report illustrating how the federal government has routinely sided with right-wing or conservative causes in religious freedom cases. “The federal judiciary has been treating religious liberty claims, RFRA claims of progressive social activists, very differently than when those faith-based claims are being made by conservative evangelicals,” Franke said.
Collins’s decision in Warren’s case signaled a repudiation of that trend, Franke went on to say. “Not only is the verdict a kind of indictment of the federal government’s immigration policy, but it’s also an indictment of the way they’re protecting religious liberty,” she added. “I have to say, I am delighted because the other RFRA claims that have been raised in the last several years by progressive social activists have been rejected completely by federal judges. So, this is the first one we’ve seen where the judge has positively analyzed a RFRA claim in favor of the defendant, and it’s quite remarkable.”
One thing the AP story stressed was how Luke Goodrich, vice president of the Becket Fund for Religious Liberty, which represented Hobby Lobby five years ago, said the courts decided correctly in the Scott Warren case.
A rising tide floats all boats, apparently. There are activists who back religious liberty — period.
The Elizabeth Platt referenced above wrote this editorial in The Hill about how the faith of religious progressives needs to be treated as seriously as that of conservatives.
An editorial earlier this in the liberal magazine The Nation wondered out loud how RFRA could be made to work for the left-of-center crowd.
Today, progressive lawyers are wondering if they can make RFRA work for them. It’s not an obvious strategy, since bolstering the law runs the risk of emboldening the conservatives who use it to restrict LGBT rights. And many progressive litigants, particularly those from non-dominant faith groups, face an uphill battle in court. Judges are not technically supposed to be in the business of deciding what is religious and what isn’t, but they often can’t avoid doing so, particularly when religious beliefs intersects with politics.
Well, obviously RFRA did work for them.
So here is the journalism question: Will mainstream media coverage of this legislation change in tone? Apparently, this depends on whose ox is getting gored.