Earlier this year, Georgia Governor Nathan Deal drew criticism from conservatives for vetoing religious liberty legislation that would protect dissenters’ right to freely exercise their religion. Now, Indiana governor and Republican vice presidential nominee Mike Pence is trying to give frustrated Georgians advice on how to address religious liberty questions.
“The lessons that we learned in the state of Indiana is that the American people abhor discrimination – we don’t support discrimination against anyone,” Pence said. “But at the end of the day it’s important that whenever our rights come into conflict, that the courts are the proper place to resolve those rights.”
Later in the statement, Pence said, “And Donald Trump and I really believe that these are issues that are best resolved in Georgia, in Indiana and at the state level.”
There are a few problems with Pence’s lecture to the people of Georgia.
First, Pence’s record on religious liberty is not exemplary. Last year, the Indiana General Assembly passed a Religious Freedom Restoration Act, and Pence signed it into law. But once Big Business, the entertainment industry, and special interest groups put pressure on Pence to backtrack, he immediately crumpled and removed some of the law’s most serious protections.
Additionally, Pence’s statement contradicts the national Republican Party’s platform. House Republicans, led by Speaker Paul Ryan, have rallied in support of the First Amendment Defense Act (FADA), which “prohibits the federal government from taking discriminatory action against a person on the basis that such person believes or acts in accordance with a religious belief or moral conviction that: (1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage.”
Even Georgia Senator Johnny Isakson, a Republican with a relatively moderate track record, has said the federal government ought to be highly involved in the defense of religious liberty. Earlier this year, Isakson said, “The Constitution guarantees religious liberty under the First Amendment, so anything that passes to carry that out ought to be a federal statute.”
Not only that, the party’s most dedicated conservative activists made a point of making religious liberty an important plank of the platform at the Republican National Convention this year. As a result, the platform explicitly endorses FADA and national legislation to protect religious liberty.
And on top of all this, Pence’s running mate at the top of the ticket, Donald Trump, said last year that he would sign FADA were it to make it to his desk as president.
In Cleveland this July, the Republican Party made a promise to religious Americans. They swore that their party was dedicated to protecting Americans’ sacred right to freely exercise their religious convictions, and that GOP leaders would work to pass laws on a federal level to ensure those protections. Now, Mike Pence is sending the opposite signal, telling them that protecting these rights enshrined in the Constitution is solely the business of the state governments.
Really, this statement betrays Mike Pence’s fundamental misunderstanding of the purpose of government.
The Founders believed that governments were instituted among men to protect their natural rights, chief among which was the freedom to exercise religion as conscience dictates. In an 1809 letter to a religious group in Connecticut, Thomas Jefferson wrote, “No provision in our constitution ought to be dearer to man, than that which protects the rights of conscience against the enterprises of the civil authority.”
The federal government is constitutionally obligated to “secure the blessings of liberty” for the American people. Congress exists for the sake of making laws in pursuit of this end. The presidency exists for the sake of enforcing laws in pursuit of this end. And the Supreme Court exists for the sake of interpreting laws in pursuit of this end.
Decisions made by the courts have consistently imperiled religious liberty. Activist judges and their co-conspirators among the states’ attorneys general have taken action after action in an all-out offensive against religious liberty. Government agencies staffed by ideologues are constantly infringing — or threatening to infringe — on the constitutionally-enshrined rights of free exercise and free speech. Executive orders from the White House inimical to free exercise have been enacted as policy.
In this case, Pence is wrong that the “courts are the right place to resolve [conflicts of] rights.” The courts are too often openly hostile to religious liberty, executive agencies are too often complicit in this hostility, and left-wing states like California are often on the front lines of pushing totalitarian policies.
Despite Mike Pence’s assertion, the American people cannot trust the courts to defend their rights, and instead must rely on an energetic defense on the part of both the states and Congress.
Abraham Lincoln once said, “The people are the rightful masters of both Congress and courts — not to overthrow the Constitution, but to overthrow the men who pervert it.” Mike Pence simply doesn’t seem to understand this.
It is undeniably the role of Congress to pass laws in support of the First Amendment, even if Governor Pence insists differently.
Michael Lucchese works for the American Principles Project.