In fact, any argument against SB 1062 was an argument against RFRA itself. If SB 1062 was unconscionable, or embarrassing, or anti-business, or even unconstitutional (as Secretary of State John Kerry claimed on Wednesday) then so is RFRA. If SB 1062 wan’t worth standing up for, then neither is RFRA, and therefore neither is anything beyond the de minimis religious liberty protections offered in Employment Division v. Smith.
These logical entailments should serve to demonstrate how misguided the hostility to SB 1062 was, but I fear, in the absence of one of our two political parties standing up for a robust conception of religious liberty, it will work the other way. The flaming-out of SB 1062 to the tune of GOP cheers will be considered, sooner rather than later, a mandate not just to oppose further religious liberty protections, but to roll back those that already exist.
The Washington Examiner’s Justin Green, certainly not a shill for anyone’s establishment, tweeted on Tuesday that SB 1062 is “electoral suicide” and that “sometimes you gotta suck it up and lose.” Quite right, in theory. But first we must ask what it is we are losing, and if it’s something worth fighting for.
Religious liberty is worth fighting for. But will anyone stand up to fight?
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