SALT LAKE CITY — Sen. Mike Lee told an online Sutherland Institute audience Tuesday that even when the exercise of religious liberty comes at the expense of someone else, “that doesn’t make it OK to trample” because of constitutional protections put in place to limit government.
“Religious liberty has to be revered and respected as a concept independently of utility to any one individual or any one group,” Lee said, adding that the same critique could be raised against other freedoms guaranteed in the U.S. Constitution, for speech, association and the press, that can also protect unpopular views.
Lee, who participated in a half-hour discussion titled “The Supreme Court and Religious Liberty: The Top Court’s Impact This Term” as part of the conservative political think tank’s ongoing series with members of Utah’s congressional delegation, was asked about views that upholding religious liberty can harm others, including the nonreligious.
“Just because somebody doesn’t like it, just because somebody might feel like the exercise runs contrary to what they would like to see or maybe even runs contrary to their interests, that still doesn’t make it OK for government to interfere with that right,” he said. “We’ve taken that off the table as a matter of constitutional law.”
The senator, who has appeared on President Donald Trump’s list of potential Supreme Court nominees, said that means “we’re not really at liberty to just decide that because a certain set of religious beliefs might be inconvenient or offensive to some people that we’re going to squelch them.”
Lee cited three recent U.S. Supreme Court decisions dealing with religious liberty, praising a pair of rulings shielding religious employers from a variety of employment discrimination claims and declaring that taxpayer-funded scholarship programs cannot exclude faith-based institutions.
Both rulings, he said, “are quite significant and I think will be for some time, calling the case involving a Montana scholarship program aimed at low-income students not only a “big win” for students in that state who will now be able to seek financial assistance but also “inevitably” for students in a similar situation around the country.
However, Lee rated as a “near miss” the court’s 5-4 decision late last month to decline to block the enforcement of Nevada law limiting church gatherings to 50 people to prevent the spread of COVID-19 while permitting casinos and other businesses to operate at 50% of capacity with social distancing.
He read a paragraph-long dissent written by Justice Neil Gorsuch that described it as a simple case. “The world we inhabit today, with a pandemic upon us, poses unusual challenges,” Gorsuch wrote. “But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”
The senator said that the four conservative members of the court were “willing to speak up and the other frequent defender of religious liberty, Chief Justice Roberts, was not, is significant and I find it disconcerting.” Lee said he will “die of shock” if the Supreme Court allows the Nevada law to stand.
He and nine other Republican senators have asked the Trump administration for help stopping state and local governments from “discriminating against Americans seeking to exercise their First Amendment right to practice their religion.”
Lee said Tuesday governments do have the authority to adopt, implement and enforce “religiously neutral rules” dealing with health and safety so there is nothing categorically unconstitutional about restrictions put in place to combat the coronavirus pandemic.
“There is however, a big problem with the selective implementation and enforcement of those” rules, he said.
Both Godzilla and the giant Stay Puft Marshmallow Man from the movie “Ghostbusters” were invoked in Lee’s answer to a question about the impact of “cancel culture” on religious liberty, a reference to publicly targeting others deemed to have done something offensive.
He warned that a “populist uprising” that seeks government assistance “in canceling unpopular ideas” can become a threat to liberty “that almost always includes an encroachment to religious freedom.” Lee compared government action to the destructive forces of the fictional movie monsters.
“When Godzilla steps on your house, Godzilla is not necessarily doing so because Godzilla sees you and has singled you out for mistreatment, either because he hates you or he thinks you look particularly tasty when compared to other people,” he said. “It’s because Godzilla’s huge and your house happens to be in the way.”
He said when government gets big, it “gets clumsy and it inevitably becomes reckless of individual liberties, and that is certainly true with religious liberty, and we’ve got to be on the lookout for that.”