President Trump's nomination of Brett Kavanaugh for Supreme Court comes at a time of declining religious liberty and free expression.
Unfortunately, Kavanaugh's opinions and the formerly fringe legal philosophy his nomination represents further weaken these two of our country's proudest freedoms.
Persecution for religious belief is still very real the world over. Many college deans seem to have forgotten that the remedy for speech you don't like is more speech. So it is worth reminding ourselves about the bedrock American values of religious liberty and free expression.
Religious liberty does not mean that anybody can get out of neutral laws applied to everyone. If it did, I'm sure a lot of criminal defendants would claim their God allowed them to commit their crime.
Likewise, speech is limited in other ways too: You can say whatever you want to your boss, but you can also get fired for it.
Government is limited on religion just as well: The government can't judge whether your actions are religious or not, and can't subsidize your faith over someone else's.
These have been the principles of our law for a long time. And I happen to think they have made us a beacon for faith, family and freedom, even if we haven't always lived up to our ideals.
But now too many like Kavanaugh are chipping away at these long-held First Amendment values.
Many like Kavanaugh put short-term gain over long-term principles, and use the courts for policy change instead of the legislative branch. Put another way, Christians feel persecuted over contraception mandates passed by the legislative branch, so they sue to get out of them. Or multinational companies want laws that benefit them, so they claim their ads are speech and aren't actually donations to politicians.
This would not work without judges like Kavanaugh who get a little too clever and cutesy in going along with such sentiments. In a notable case of Priests for Life v. U.S. Department of Health and Human Services, even when the law allowed for conscientious objectors, Kavanaugh still would have overturned a general contraception law that applied equally to everyone because he thought it burdened religious belief.
This is problematic because a balance for religious liberty was already enshrined in the law Kavanaugh would have overturned.
By advocating for overturning, Kavanaugh is in essence saying religious liberty is not a shield to defend against being compelled to think or act a certain way, but is instead a sword to wield and make others believe how you do. That weaponized notion of liberty is antithetical not only to free exercise of religion, but also to free will itself: The very essence of faith is a choice, and because it is a choice some won't make it.
The way to change the general contraception law was and is through the legislative branch, just as the way to get politicians elected is to disclose and donate to them just like everybody else.
America deserves judges who take the long view and ground themselves in our earliest principles. We can do better than Kavanaugh, but we can't do much better than one nation, conceived in liberty and dedicated to the proposition that all are created equal.
Chris Burks is a Little Rock attorney who litigates constitutional law.
Editorial on 07/13/2018
Print Headline: Shaky freedoms