What if 1940s Britain Had RFRA (and Justice Alito)?
May 11, 2016
As anyone who knows me is aware, I was not born in the United States. I was born, raised, and educated in England, only moving to the States in my mid-twenties. Legally speaking, Britain is both very similar, and very, very different to the U.S. Often I will ponder what would happen if American legal problems were transported over to Britain. And the two biggest problems that fill my thoughts there are the Religious Freedom Restoration Act of 1993, and Associate Justice of the Supreme Court, Samuel Alito.
Walking to the Metro last week, I heard a sound I don’t normally hear in my neighborhood, especially during the week – church bells. I have always loved the sound of church bells. Well, except for the college years when they magnified hangovers, but I am getting distracted. Church bells bring back floods of memories of my childhood in rural Sussex. So, of course, the sound took me away to fits of reminiscing and dreaming.
For those interested in history, Britain at times banned the ringing of church bells. This was most recently done in 1940, when Britain was facing the direct and immediate (and downright terrifying) threat of invasion by Nazi Germany. German tanks, guns, and troops were a mere 21 miles from British shores at the narrowest point of the Channel, and German bombers were easily in range of British cities (a threat which later proved deadly). So the government told the churches no more bell ringing, reserving it to be used to warn of German troops landing, or approaching air raids. Fortunately, the nation was never invaded (other than the Channel Islands), and, by 1943, the threat had receded enough for bells to be heard once again calling the faithful to Sunday services (as well as charming the nonfaithful).
And that’s why my imagination took over. What if, instead, we were looking at the United States of Britain, with both a RFRA and this current Supreme Court in placet, and, as would inevitably have happened, a religious group had sued that their religious freedom was restricted by the ban on chiming their bells?
* * *
Justice Alito : “Mr. Churchill. You are here before us today to answer to claims that your blanket ban on the use of church bells by the faithful unconstitutionally limits their ability to freely practice their religion. What say you, Sir?”
Winston Churchill : “Your Honour. We fail to see how not allowing bells to be rung interferes with Church of England services. We have continued to support the church, to exempt its property from taxes to pay for the war, to allow its ministers to avoid conscription…”
Alito : “Yes, yes. So you say, Mr. Prime Minister. But this church tells us that its religious freedom is impaired. Do you doubt their sincerity? Do you think this Court is the body to determine whether their religion requires bell ringing?”
Churchill : “But the Germans, Your Honour…”
Alito : “The Germans, indeed. This then is your compelling government interest, I take it? The ability to fight off an alleged invasion force? Where is your evidence that an invasion is imminent?”
Churchill : “But Poland, Your Honour. Belgium. Denmark. Norway. France! As we speak the Teutonic hordes are massed to invade Greece and then turn their guns on their erstwhile Russian allies!”
Alito : “So you allege, Mr. Prime Minister. Mere speculation. In fact, doesn’t the indisputable fact that we have gone over a year without being invaded indicate there are no German plans to do so? But I digress… Your briefing was lacking in the extreme on what the real government interest at stake here is. I see nothing on why an invasion, were one to occur, would be so terrible as to warrant trampling on a church’s rights in this way.”
Justice Ginsburg : “You seriously need evidence of why a Nazi invasion would be bad? Look at me. Justice Kagan. Justice Breyer. Even Justice Garland if they would ever let him out of the locker room. The Nazis regime is an indescribable evil!”
Alito : “Thank you, Justice Ginsburg. Let’s assume, then, arguendo, that Mr. Churchill’s government has a compelling interest in preventing a Nazi invasion. Is this truly the least compelling method? Wasn’t an exemption to the ban granted to celebrate a great naval victory? If that can be exempted, why can a church not be exempted each Sunday?”
Churchill : *Blustering and spluttering* “This is a military decision, Your Honour, how else will we know when to fight them on the beaches..”
Justice Kennedy : “While I see the importance of this whole ‘invasion defense’ concept, Mr. Prime Minister, is it really necessary to hijack the entire church’s signaling system against their wishes to do the government’s bidding? Is there no compromise available?”
Alito : “Why can you not build your own early warning system? The British government has money to build radar stations and battleships, tanks and fighter planes. Is it your testimony today the government can afford these yet could not pay for a separate system to announce an invasion that did not violate religious rights…”
* * *
At that point, my train arrived at its stop, and my daydream came to an end. I left the British Supreme Court without seeing Churchill order Justice Alito arrested and incarcerated in the Tower. Fortunately, Britain didn’t have a RFRA in its darkest times, or indeed now. And there’s no need for the US to have one, especially not the overbroad, overbearing one Justice Alito’s decisions have given us. The religious practices of majority groups aren’t under threat, and there’s certainly no justification to carve out exemptions for religious corporations like Hobby Lobby and the University of Notre Dame, especially when the consequences of so doing include the removal of basic health care from women. RFRA would’ve been dangerous in the 1940s. It’s dangerous now. And Justice Alito just makes It more dangerous.