The Uphill Battle for the First Amendment

Today the Kleins of Sweet Cakes by Melissa paid over $350,000 in fines for damages to a homosexual couple who ordered a wedding cake. The Kleins were following their religious beliefs and yet even with the First Amendment they are being persecuted for a simple religious belief.

The story of the devaluing of the First Amendment is long, but the key case was Employment Division vs. Smith, which ruled that in order to be a fundamental right, religious liberty had to be a secondary right in any claim. In order to give Religious Liberty protection again in the wake of the Smith Decision, Congress passed the Religious Freedom Restoration Act (RFRA). RFRA required that all religious liberty cases be tried using the judicial standard of strict scrutiny. The RFRA test has five parts. These five parts can be divided into two parts: things which the individual or business has to prove and things which the government must prove. The test is as follows.

The group or individual making the claim must prove...
1. A Sincerely Held Religious Belief is implicated (to ensure that they are not using religion to break the law.)
2. There is a Substantial Burden on this Belief.

The government must prove...
3. There is a Compelling Interest on the Part of the Government
4. The Law is Narrowly Tailored
5. The Law is the Least Restrictive Means Possible.

This test was used in the Religious Liberty cases prior to Smith. After Congress passed RFRA the Court struck down the portion of the law that applied to the States (Boernie vs. Flores) and upheld the part which applied to the Federal Government (Burwell vs. Hobby Lobby). This means that any law that is challenged at the federal level using Religious Liberty must pass the test outlined by RFRA, however any law challenged at the state level must have a second right accompanying the right to Religious Liberty.

This is what make the Klein's situation difficult. They are trying to challenge a state law in Federal Court. Under the Hobby Lobby decision, their business does have a right to Religious Liberty, but this is virtually meaningless under the Smith and Boernie decisions. Thus the Kleins must challenge the law by using either the Right to Association or the Right to Speak. Both cases should under the Constitution give the case to the Kleins, however the Court may find a Compelling Interest in ending discrimination against homosexuals as it did against women in Roberts vs. Jaycees. The message of the Kleins is both political and religious and they have every right to be heard, the only difficulty come in current Court precedent.