Religious Freedom and the Administrative State
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In the last century, and especially the last decade, the locus of church-state or “Free Exercise” conflicts, and related Supreme Court cases, has shifted from arguments over legislative enactments to controversies surrounding administrative or agency decisions. Moreover, many of these decisions would be unlikely to muster majority support in a legislative body, such as Congress, given the necessary compromise and give-and-take required to assemble a majority or override a Senate filibuster. One has only to consider the recent cases involving Hobby Lobby, the Little Sisters of the Poor or Masterpiece Cakeshop to appreciate this truth.

Or take the recent case, Trinity Lutheran v. Comer, in which the Supreme Court considered whether a Missouri state agency had engaged in illegal discrimination by excluding a religious school from equal participation in a program to fund playground resurfacing. The Lutherans won.

This trend is symptomatic of an increasing polarization and irrelevance of Congress and state legislative bodies, their failure to make the tough policy calls and their resulting decisions to punt or cede vast amounts of “delegated authority” to very large administrative agencies with vast powers, hyper-specialized staff, multi-faceted toolboxes to further their goals.

These are some of the lessons learned at a very important conference, “Religion and The Administrative State,” sponsored last week at the C. Boyden Gray Center for the Study of the Administrative State at the Scalia Law School of George Mason University in northern Virginia. (Full disclosure: this writer is an adjunct professor at the law school.)

Most of the current debate over the administrative state revolves around its impact on economic life and freedom. So this conference’s focus on religion and First Amendment issues is a necessary elaboration on an important topic impacting the liberty interests of millions of Americans for whom religious belief is central to their lives, not just another policy preference. Adam White, the Center’s executive director, deserves high praise for pulling together this dialogue.

The program consisted of several panels of legal experts — right, left and center — who discussed several important papers on which they all had an opportunity to read and comment upon. The five papers can be accessed at administrativestate.gmu.edu.

Attendees were also privileged to hear remarks from one of President Trump’s most excellent judicial appointments, the Honorable Stuart Kyle Duncan, Judge of the U.S. Court of Appeals for the Fifth Circuit in Louisiana. Duncan is a former professor, appellate chief for the Louisiana Attorney General’s office, general counsel of the Beckett Fund for Religious Liberty and private practitioner.

There was a mix of optimism and pessimism expressed by panelists relating to the future of religious freedom in American jurisprudence. Clearly, the Supreme Court is tending toward a more protective stance on religious freedom. As Judge Duncan noted, the Supreme Court usually accepts “at face value” the religious claims of litigants without any second guessing. But other experts feared that society is embracing the view of “equality as sameness” and a constrained view of diversity as aligned only with political correctness and viewing traditional sexual morality as somehow beyond the Pale. Another view expressed was that, given the recent court decisions in favor of religious liberty, and the current White House, agencies were beginning to clean up their act in terms of internal policies on Free Exercise matters. One panelist even called for a presidential executive order commanding federal agencies to prioritize the optimization of religious freedom as a positive societal good or at least remove and reduce obstacles to its free exercise.

No matter, defenders of religious liberty will need to remain vigilant in monitoring legislative and administrative actions, the latter maybe more than the former, impinging on their priority concerns.

Sadly, the federal judicial confirmation process will continue to be bitter and acrimonious given the societal fault lines on social and religious issues and the fact that concepts such as “compelling state interest” are, in essence, judgment calls on which a national consensus no longer exists.

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