Supporters of greater freedom for religious institutions were heartened greatly in 2012, when the Supreme Court issued a unanimous ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, which the New York Times called perhaps “its most significant religious liberty decision in two decades.”27 In Hosanna-Tabor, the Court held that the hiring practices of religious groups could not be regulated by federal employment law (in this case, law that prohibited discrimination against an employee with a disability), because that would essentially give government the right to tell such groups whom they could hire. Still, the sweeping decision has not stopped critics of the Court’s earlier Boerne ruling from arguing that to protect religious freedom, the Constitution should be amended to make RFRA the law of the land.28
Concern over religious freedom among church members grew after the full implementation of the Patient Protection and Affordable Care Act (ACA) in 2014. The Obama administration interpreted the ACA requirements as meaning that employer-based health insurance should provide birth control coverage, but in 2012 the Supreme Court ruled, in Burwell v. Hobby Lobby, that corporations that are not publicly traded (so-called closely held corporations) did not have to provide such coverage if it violated the owners’ religious beliefs. This case not only upheld the right of employers not to provide contraception coverage if it conflicted with the employer’s religious beliefs but also affirmed that right for some kinds of corporations as well as for individuals.
Meanwhile, when the federal law appeared to be in jeopardy, many states passed their own RFRAs to protect religious practices at the state level, and they have been used to protect a variety of controversial practices on religious grounds, including the denial of services and rights to those in the LGBTQ community. Such laws proliferated again in 2015 and 2016 in the wake of the Supreme Court’s ruling that constitutionalized marriage equality. States such as Indiana, Mississippi, and North Carolina suffered serious blowback from companies that considered the intent of such laws to be discriminatory and chose to take their business elsewhere. (We will read more about this in Chapter 5.)
In Your Own Words
Describe how the First Amendment protects both church and state, as well as individuals’ religious freedom.
Freedom of Expression: Checking government by protecting speech and the press
Among the most cherished of American values is the right to free speech. The First Amendment reads that “Congress shall make no law . . . abridging the freedoms of speech, or of the press” and, at least theoretically, most Americans agree.29 When it comes to actually practicing free speech, however, our national record is less impressive. In fact, time and again, Congress has made laws abridging freedom of expression, often with the enthusiastic support of much of the American public. As a nation we have never had a great deal of difficulty restricting speech we don’t like, admire, or respect. The challenge of the First Amendment is to protect the speech we despise.
freedom of expression the right of the people to free speech
Why Is Freedom of Expression Valuable?
It is easier to appreciate what is at stake in the battles over when and what kind of speech should be protected if we think about just why we value free speech so much in the first place. Freedom of speech can help to empower citizens and limit government in four ways:
Free speech is important because citizens are responsible for participating in their government’s decisions and they need information provided by an independent, free press to protect them from government manipulation. Mediated citizenship gives us many more channels through which to access information, but that means many more channels to monitor for truth and reliability. In an age in which the president of the United States feels free to label unflattering or critical news coverage “fake news,” the imperative to maintain a free press is more critical than ever.
Free speech can limit government corruption. By being free to voice criticism of government, to investigate its actions, and to debate its decisions, both citizens and journalists are able to exercise an additional check on government that supplements our valued principle of checks and balances.
Denying free speech sets a dangerous precedent. Censorship in a democracy usually allows the voice of the majority to prevail. One of the reasons to support minority rights as well as majority rule, however, is that we never know when we may fall into the minority on an issue.
Free speech ensures the vigorous protection of the truth. According to the nineteenth-century English philosopher John Stuart Mill, by allowing the expression of all speech, we discover truths we had previously believed to be false and we develop strong defenses against known falsehoods like racist and sexist ideas.
free press a press that is able to report fully on government’s activities
If free speech is so valuable, why is it so controversial? Like freedom of religion, free speech requires tolerance of ideas and beliefs other than our own, even ideas and beliefs that we find personally repugnant. Those who are convinced that their views are absolutely and eternally true often see no real reason to practice toleration. Many people believe that, in a democracy, the majority should determine the prevailing views and the minority, having lost the vote, so to speak, should shut up. In addition, conflicting ideas about what constitutes the public interest can lead reasonable people to disagree about whether speech ought to be protected or restricted.30
Speech That Criticizes the Government
Sedition, speech that criticizes the government to incite rebellion, has long been a target of restrictive legislation, and most of the founders were quite content that it should be so. Of course, all of the founders had engaged daily in the practice of criticizing their government when they were inciting their countrymen to revolution against England, so they were well aware of the potential consequences of seditious activity. Now that the shoe was on the other foot and they were the government, many were far less willing to encourage dissent. Especially during wartime, it was felt, criticism of the government undermined authority and destroyed patriotism.
sedition speech that criticizes the government to promote rebellion
Early in our history it was easy enough for those in government to control the information that they felt threatened their power. It didn’t take long for American “revolutionaries” to pass the Alien and Sedition Acts of 1798, which outlawed “any false, scandalous writing against the government of the United States.” Throughout the 1800s and into the next century, all levels of government, with the support and encouragement of public opinion, squashed the views of radical political groups, labor activists, religious sects, and other minorities. By the end of World War I, thirty-two of forty-eight states had laws against sedition, which essentially prohibited the advocacy of the use of violence or force to bring about industrial or political change. In 1917 the U.S. Congress passed the Espionage Act, which made it a crime to “willfully obstruct the recruiting or enlistment service of the United States,” and a 1918 amendment to the act spelled out what that meant. It became a crime to engage in “any disloyal . . . scurrilous, or abusive language about the form of government of the United States, . . . or any language intended to bring the form of government of the United States . . . into contempt, scorn, contumely, or disrepute.”31 Such sweeping prohibitions