Likely to be used as a springboard for the appeal are the following thoughts from the dissent of Judge Janice Rogers Brown, joined by Judge Karen Lecraft Henderson. Therein are some very clear arguments regarding religious liberty. You know, the kind that are deep in history.
Take a look,
The French say: plus ça change et plus c’est la même chose (The more things change; the more they remain the same). There was once a time when the church was the state and the church as the state embodied all hope of human well-being [R.W. SOUTHERN, WESTERN SOCIETY AND THE CHURCH IN THE MIDDLE AGES 23 (1970)]. To challenge the church was to undermine civilization. Thus, the imposition of orthodoxy was deemed necessary, and dissent, which amounted to heresy, was met with coercion and violence. See ST. THOMAS AQUINAS, SUMMA THEOLOGIÆ pt. II-II, q. 11, art. 3.
This history prompted John Locke to urge toleration and stress the necessity of distinguishing “the business of civil government from that of religion” and establishing clear boundaries between them [John Locke, A Letter Concerning Toleration, reprinted in 5 THE WORKS OF JOHN LOCKE 5, 9 (12th ed. 1824)]. The Framers went further, establishing not only a limited government, but recognizing the primacy of individual conscience and seeking the line between freedom and justice. Thus, the Bill of Rights “grew in soil which also produced a philosophy that . . . liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men’s affairs” [W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 639–40 (1943)].
The federal government was given no authority over men’s souls. For the Founders, the not-so-distant history of persecution
engendered a fierce commitment to each individual’s natural and inalienable right to believe according to his “conviction and conscience” and to exercise his religion “as these may dictate.” James Madison, Memorial and Remonstrance Against Religious Assessments, reprinted in 2 WRITINGS OF JAMES MADISON 183, 184 (G. Hunt ed. 1901). “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Barnette, 319 U.S. at 642.
Of course, the right to freely exercise one’s religion is not—and was not intended to be—absolute. The Founders recognized state coercion would at times be necessary, with Madison himself stating “full and free exercise . . . according to the dictates of conscience” could be limited where “the preservation of equal liberty . . . and the existence of the [government] may be manifestly endangered.” [G. Hunt, Madison and Religious Liberty, 1 ANNUAL REPORT OF THE AMERICAN HISTORICAL ASSOCIATION, H.R. Doc. No. 702, 57th Cong., 1st Sess., 163, 166–67 (1901)]. However, “[t]he essence of all that has been said and written on the subject is that only those interests of the highest order . . . can overbalance legitimate claims to the free exercise of religion” [Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)].
The soil of the eighteenth century has eroded and that fixed star grown surprisingly dim. We live in a time where progress is sought “through expanded and strengthened governmental controls” [Barnette, 319 U.S. at 640]. In a sense the government now fills the role formerly occupied by the church, embodying the hope of human well-being. For the government to pursue the good and to solve society’s problems, it must first identify that which is good and that which is problematic through subjective and value-laden judgments. [Cf. Laurence H. Tribe, Disentangling Symmetries: Speech, Association, Parenthood, 28 PEPP. L. REV. 641, 651–53 (2001) (stating that when the government takes a side in a “direct clash of competing images of ‘the good life,’” it “is making an intrinsically contestable statement about the rightness or wrongness” of ideals)]. Consequently, orthodoxy has been rehabilitated, and dissent from the government’s determinations may be quelled through coercion—onerous fines or banishment from commerce and the public square.
Despite the parallels, we do not find ourselves full circle quite yet. Religious adherents may still seek refuge from unnecessary governmental coercion through the Religious Freedom Restoration Act (“RFRA”). When the federal government substantially burdens free exercise, it may do so only in pursuit of a compelling interest and even then must use the least restrictive means. 42 U.S.C. § 2000bb-1. Further, the conscience of the individual remains protected in that he must “answer to no man for the verity of his religious views.”
Until then, we pray, and we fight.