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So much for the Salvation Army’s pristine image. The group had reportedly lobbied the White House for protection from state and local laws that might require social service contractors to hire and provide employment benefits to gays. After the news broke, the administration hastily disavowed the deal it had allegedly reached. And the Salvation Army, thank heaven, fired its lobbyists and issued a statement declaring that it “seeks to understand and sensitively to accept and help those of a homosexual orientation and those who express that orientation in sexual acts.” Good news for gays? Yes. Good news for religions? Probably not. Did good triumph? It’s not that simple to say. All this, of course, is fallout from President George W. Bush’s push to expand faith-based social services with the support of federal money. To critics of the initiative, it’s a bulldozer gearing up to flatten the First Amendment’s wall separating church and state. The critics have focused mainly on one side of that wall: the prohibition against laws “respecting an establishment of religion.” The Supreme Court has recently allowed the government to give ever-more support to religious activity, and the concern is that Bush’s program will eliminate whatever is left of the establishment clause’s boundary. But the Salvation Army fracas shows that there’s also a risk here to the First Amendment’s ban on laws “prohibiting the free exercise of religion.” Like the Salvation Army’s. To start, some context: The Salvation Army is not a charity — at least not exactly. Rather, it’s a church, which performs charity as a means of carrying out its religious mission. Also, the Salvation Army opposes offering benefits to partners of homosexual employees, according to its spokesman, because granting such benefits “raises a nonmarried union to the level of a married union, and that directly conflicts with our theology.” Americans like to think of themselves as supporting the First Amendment idea that religions should be allowed to exercise their beliefs free of government interference. In deciding whether we actually do, consider for a moment a slight departure from the facts of the Salvation Army episode. Take a simpler case: Local government passes a law prohibiting all employers — not just those that contract with the government to provide social services — from discriminating in hiring on the basis of sexual orientation. The Salvation Army has a religious objection to hiring gays. What happens? Answer: The Salvation Army loses. We can thank Justice Antonin Scalia for this. In Employment Division v. Smith (1990), he wrote an opinion that fundamentally changed the free exercise clause. Until Smith, when a person performed an action on the basis of religious conviction that violated a generally applicable law, the law would apply only if the government could prove it had a “compelling interest” in upholding the law. The Court changed that in Smith. Under the new regime, so long as a law is neutral and generally applicable, it’s valid — even when people break the law to follow their religious commandments, and even where the government has no compelling need for the law’s existence. “It may fairly be said that leaving accommodation [of religion] to the political process will place at a relative disadvantage those religious practices that are not widely engaged in,” Justice Scalia acknowledged for the majority. “[B]ut that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.” Not surprisingly, Smith was not popular. As Justice Harry Blackmun wrote in his dissent, the majority “effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution” that could have a “potentially devastating impact.” While Smith is still good law, today there are four justices who would likely vote to overturn it and restore the previous legal regime. And there’s a good chance that the next justice, whatever his or her general political leanings, might oppose Smith. There is another fact that has made Smith an obvious candidate for criticism: The losers in the case were Native Americans. More precisely, they were members of the Native American Church who sought to ingest peyote (a hallucinogenic drug that Oregon had criminalized) as part of their religious devotion. A case that eviscerates the Constitution and does so at the expense of Native Americans — descendants of survivors of America’s very own genocide — is not hard to hate. AFTER ‘SMITH’ But that was before the Salvation Army episode. In fact, the current situation does not directly enter the fray over Smith. The Salvation Army’s problem involves the rights of federal and state governments to impose restrictions on those who contract with them. The alleged deal was that President Bush would agree to put restrictions on federal social service grants that would prohibit the states from requiring faith-based social service contractors to hire gays, and grant them employment benefits, on a nondiscriminatory basis. (In exchange, the Salvation Army promised to lobby in favor of the president’s faith-based initiative.) Since no one has a constitutional right to contract with the government, the First Amendment doesn’t come directly into play. But it almost does. And to the opponents of Smith, that might be bad news. At bottom, the Salvation Army episode might be seen as a showdown between supporters of a religion seeking to act in accordance with its religious precepts, on the one hand, and supporters of generally applicable laws, on the other hand. Supporters of generally applicable laws won. And that’s precisely how Smith resolves similar conflicts. In the Salvation Army episode, the decision-maker was the president, not the Supreme Court. So technically speaking, there’s no constitutional precedent here. But there was still a sentiment — at least among the media, members of Congress, and maybe even the public — that religions need to abide by the law, whatever their beliefs. CONSTITUTIONAL INFLUENCE Here, the generally applicable laws support gays, which makes the result — a victory for gay rights — seem right to liberals like me. But there’s still something problematic about letting one’s views toward the free exercise clause of the Constitution be influenced by the content and the political vogue of the generally applicable laws in dispute. Where generally applicable laws hurt minorities that have traditionally been discriminated against, such as in the peyote case, it seems that people (or at least liberals) rally around the free exercise clause to oppose the laws. But when generally applicable laws help a traditionally vulnerable minority, such as with the gay rights laws, liberals oppose free-exercise arguments for exempting religious institutions from those laws. That’s not right. Whose ox is getting gored — or, more accurately, whether the law is goring or protecting a sympathetic group — is not supposed to affect which religions can practice freely. The justices of the Supreme Court, though not bound by the resolution of the Salvation Army dispute, are no doubt aware of how it has played out. And they are also no doubt aware of its similarities to the issues posed by Smith. Whether they let it weaken their resolve to topple Smith remains to be seen. ALL FOR NOTHING? Perhaps as an ultimate irony, the entire dispute might essentially be for nothing. After announcing that the deal with the Salvation Army was off, the White House released a notice stating that its faith-based bill will give the Salvation Army all the needed protection, since the bill will allow religions receiving federal money under the faith-based program to hire exclusively within their faiths. “These protections ensure that religious organizations have the right to hire individuals who share their religious faith,” according to the statement. For the Salvation Army, this means that it can restrict its hiring to devout members of the faith, who, presumably, share the church’s views on homosexuality. Of course, the fact that members of Congress now know that Bush’s bill will have this effect is making them more likely to oppose the faith-based initiative altogether. For instance, Sen. Joseph Lieberman, D-Conn., generally a strong advocate of religion, said that the episode “puts a cloud over the president’s desire to extend the faith-based initiative program. Unfortunately, it might temporarily wound it in the Congress.” As indeed it has. On July 19, the House of Representatives passed legislation to enact Bush’s faith-based initiative. But Republicans faced dissent in their own ranks, as moderate party members protested a provision that will grant a religious institution that receives federal money “the right to maintain its autonomy from federal, state, and local government, including such organization’s control over the definition, development, practice and expression of its religious belief.” And that will have, in essence, the same effect as the measure the Salvation Army originally requested. To be sure, this episode does represent a major victory for gay Americans. Though no new statute was passed to ensure even a modicum of gay rights, this was perhaps the most significant — and definitely the most public — situation in which members of Congress and the people rallied to guarantee protection against discrimination on the basis of sexual orientation on a national level. That’s something we can be proud of. But it’s also a victory that potentially comes at the expense of the principles underlying the free exercise of religion. And it’s a reminder that, as much as we like to think that the Constitution enshrines the nation’s morality, sometimes there’s no easy way to accommodate competing moral claims. Evan P. Schultz is associate legal editor at Legal Times . He can be reached at [email protected]

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