Roberto Rivera

Mi Crónica


Roberto Rivera

“El día en que lo iban a matar, Santiago Nasar se levantó a las 5.30 de la mañana para esperar el buque en que llegaba el obispo. Había soñado que atravesaba un bosque de higuerones donde caía una llovizna tierna, y por un instante fue feliz en el sueño, pero al despertar se sintió por completo salpicado de cagada de pájaros.” —Gabriel Garcia Márquez, “Chronicle of a Death Foretold

The Nobel laureate’s novella tells the story of a crime everyone (save the victim) knew was going to happen and no one did anything to prevent, largely because they thought that it couldn’t happen. The victim, Santiago Nasar, woke up having dreamt that he was strolling through a forest in a gentle shower, only to discover that he was covered in bird poop.

Sort of like us. We are all stunned at the speed with which religious freedom, which for our purposes means the ability to practice your faith outside your home and church, has unraveled. Yet, we shouldn’t be stunned—this state of affairs has been at least 25 years in the making.

What follows is a chronicle of a death we should have all seen coming.

The story starts in 1990 with Employment Division v. Smith, which held that there is no First Amendment Free Exercise right to disregard “laws of general applicability.” (I’ve written more than you can probably stand about the case here.) As Justice Scalia wrote for the majority, “To permit [such religiously motivated disobedience] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

In May 1993, the Hawaii Supreme Court, in Baehr v. Miike, ruled that under the state constitution’s guarantee of equal protection under the law, Hawaii could only justify its refusal to grant a same-sex couple a marriage license if it met the exacting requirements of strict scrutiny. While the case was eventually dismissed after Hawaii voters, like voters in 30-plus other states, passed a constitutional amendment defining marriage as the union of one man and one woman, the decision made same-sex marriage a thing, and not just a gay activist’s pipe dream.

In November 1993, Congress essentially overturned Employment Division v. Smith by enacting the Religious Freedom Restoration Act (RFRA). It codified the test set forth in Sherbert v. Verner by which an infringement on the free exercise of religion could only be justified by a “compelling governmental interest” and could only further that interest in a narrowly tailored way.

That same month, the Court, in The Church of the Lukumi Babalu Aye v. City of Hialeah, overturned an ordinance that forbade the “unnecessary” killing of “an animal in a public or private ritual or ceremony not for the primary purpose of food consumption.” The “Santeria case,” as the decision came to be known, was decided on religious freedom grounds.

What distinguished this case from Employment Division v. Smith was the abundant evidence that the ostensibly neutral ordinance was aimed at Santeria practices. Writing for the Court, Justice Kennedy said that the “Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause ‘forbids subtle departures from neutrality’ . . . and ‘covert suppression of particular religious beliefs.’”

He added that “the record in this case compels the conclusion that suppression of the central element of the Santeria worship service was the object of the ordinances,” and “No one suggests, and on this record it cannot be maintained, that city officials had in mind a religion other than Santeria.”

No one realized it at the time, but November 1993 marked the high-water mark of religious conservatives’ battle for religious freedom. It was almost all downhill from here.

The handwriting was on the wall less than three years later when, in Romer v. Evans, the Supreme Court overturned Colorado’s Amendment 2, which prohibited state and local governments from enacting what would come to be known as “SOGI” (Sexual Orientation/Sexual Identity) anti-discrimination laws.

What made Romer so decisive was not the result but its rationale: After sifting through the proposed justifications for the amendment, Justice Kennedy and the majority concluded, “Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects” and, thus, “lacks a rational relationship to legitimate state interests.”

In other words, any governmental action that distinguishes same-sex relationships from heterosexual ones is, by definition, the product of base motives and, thus, out-of-bounds. On May 20, 1996, the game was effectively over. All that remained was a kind of culture war theater.

The next act in this theater followed four months later when President Clinton signed the Defense of Marriage Act, a.k.a., DOMA, into law. DOMA did two things: It stated that for federal purposes, e.g., tax benefits, marriage was the union of one man and one woman; and it “allayed” (those are definitely scare quotes) any concerns that the Constitution’s “Full Faith and Credit Clause” might require a state to grant legal recognition to a same-sex marriage performed out of state.

In 1997, the Supreme Court, in City of Boerne v. Flores, overturned RFRA as it applied to state and local governments. This is, without question, the most momentous religious freedom case that no one talks about. It’s why Hobby Lobby and Conestoga Wood Products are effectively exempt from the HHS mandate but Sweet Cakes by Melissa is, in all likelihood, out of luck. At least 95 percent of the infringements of religious freedom, at least as we define it, occur at the state and local level and, thanks to Boerne, Employment Division v. Smith’s “law of general applicability” standard is still controlling precedent.

If there was a single annus horribilis for religious freedom it was 2003. Of course, we didn’t know it, although the Vicario brothers among us were busy sharpening their knives. In May, the Supreme Court, in Lawrence v. Texas, not only overturned Texas’ anti-sodomy statute, it closed the door on any legislation, as Justice Scalia noted in his dissent, that was grounded in moral disapproval of a sexual act.

Mene. Mene.

Later that year, the Supreme Judicial Court of Massachusetts, in Goodridge v. Department of Public Health, went where the Hawaii courts couldn’t quite go: It found a right to same-sex marriage in the state’s constitution. If Baehr made same-sex marriage a thing, Goodridge meant that it was “game on” in the conflict between gay rights and religious freedom described by folks like Chai Feldblum in articles like this one.


Of course, very few people, with notable exceptions like my old friend Terry Mattingly, saw it this way. They were (figuratively) intoxicated with their success at the polls in the early-to-mid aughts, as state after state resoundingly declared that marriage was the union of one man and one woman. At most, they viewed the potential threat to religious freedom as yet another argument against same-sex marriage and not a concern in its own right.

If at that moment some loser named “Rivera” had said that perhaps now was the time to propose a grand bargain that would have protected religious freedom while acknowledging that, in a secular, pluralistic polity, the legal rationale for limiting marriage to heterosexual couples couldn’t withstand a serious legal challenge, the reaction would have been exactly the same as Grand Moff Tarkin’s reply to the subaltern who, after analyzing the rebel alliance’s attack, told him that preparing his shuttle might be prudent: “Evacuate in our moment of triumph? I think you overestimate their chances!”

He was wrong and so were we. Both Luke and our opponents had the kind of stuff that surrounds, penetrates, and binds people together going for them.

Of course, the emperor was still alive and he had another Death Star under construction, but, in life, as in the movies, the outcome wasn’t really in doubt. In 2013, the Supreme Court in United States v. Windsor, overturned DOMA’s federal definition of marriage, and, of course, in 2015, Obergefell v. Hodges did the same thing on the state level.


To sum it up, we are operating in a legal regime where, at least at the state level, there is no free exercise right to disobey laws of general applicability, e.g., SOGI laws and ordinances; attempts to specifically exclude the potential beneficiaries of SOGI laws from civil rights protection are presumed to be rooted in animus towards those folks by the courts. What’s more, these conditions have been in place for some time. It was only a matter of “when?” not “if?”

In Garcia Márquez’s story, it’s never clear if the victim committed the offense for which his killers took revenge. It didn’t matter. Once the tale was set in motion, the outcome was inescapable.

Sort of like us.

Pero Argénida Lanao, la hija mayor, contó que Santiago Nasar caminaba con la prestancia de siempre, midiendo bien los pasos, y que su rostro de sarraceno con los rizos alborotados estaba más bello que nunca. Al pasar frente a la mesa les sonrió, y siguió a través de los dormitorios hasta la salida posterior de la casa.


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