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Progressives Are Trying to Reclaim Religious Freedom in Court

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On the morning of a scorching day in August 2017, a group of four young women drove into the dusty expanse of the Cabeza Prieta Wilderness on the southwestern edge of Arizona. When they arrived at their destination, they parked their truck, loaded their backpacks with gallon jugs of water, and trekked deeper into the desert between the boulders and low brush. Even though they wore thick boots, the group stopped periodically to peel the thorns of jumping cholla cacti out of their legs and feet.

The Cabeza Prieta, a national wildlife refuge, abides by a strict “leave no trace” principle of environmental conservation. But these people, volunteers with the humanitarian aid group No More Deaths, planned to leave their water jugs, along with pop-top cans of cooked beans, out in the desert. They were intended for migrants crossing the US-Mexico border.

Less than two hours later, the volunteers were apprehended by law enforcement and were charged by federal prosecutors with entering the park without a permit, driving in a wilderness area, and abandonment of property. In their defense, the volunteers argued that their actions were motivated by their faith.

“We weren’t denying that we did what we did,” said 21-year-old Zaachila Orozco, one of the convicted defendants. “We were trying to prove that there is a larger reason for why people like us are doing what we’re doing in the desert.”

In raising this defense, the humanitarian aid workers turned to the Religious Freedom Restoration Act, the law that has allowed Hobby Lobby stores to avoid paying for contraception coverage in employees’ health insurance. It’s a law that for many has become synonymous with anti-LGBT discrimination and a conservative Christian moral agenda; five years ago, Katha Pollitt argued in The Nation that it was time to repeal it altogether. But many of the volunteers with No More Deaths, a ministry of the Unitarian Universalist Church, are acting on their religious faith. Shouldn’t they get the same protections as Hobby Lobby?

Today, progressive lawyers are wondering if they can make RFRA work for them. It’s not an obvious strategy, since bolstering the law runs the risk of emboldening the conservatives who use it to restrict LGBT rights. And many progressive litigants, particularly those from non-dominant faith groups, face an uphill battle in court. Judges are not technically supposed to be in the business of deciding what is religious and what isn’t, but they often can’t avoid doing so, particularly when religious beliefs intersects with politics.

The RFRA hasn’t always been the polarizing law that it is today.

Introduced by Democrats and passed with near-unanimous bipartisan consensus in 1993, RFRA was Congress’s attempt to restore the religious freedom protections it believed were destroyed by the Supreme Court. President Clinton, who signed the law, was reportedly captivated by Yale law professor Stephen Carter’s widely influential book, The Culture of Disbelief, which argued that American liberal elites had wrongly pushed religion outside of the public sphere.

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