DuquesneCampusCrucifix CROP.jpg A crucifix created by Austrian artist Jos Pirkner is seen on the campus of Duquesne University in Pittsburgh. (Wikimedia Commons/Alekjds)

The First Amendment enshrines principles that our nation needs to uphold even when we deplore the outcome. The protections of speech and of the press allow Fox News or talk radio hosts to say deplorable things. The right to assembly extends to the Ku Klux Klan, and the right to petition the government can result in lobbyists seeking preferential treatment for their clients that hurts the common good. No rights are absolute, however. The people's right to life limits anyone's right to shout "Fire!" in a crowded auditorium when there is no fire. The KKK can gather, but their gatherings cannot incite violence. A lobbyist can seek to persuade a public official, but cannot offer a bribe. When rights conflict with one another, the courts must step in to adjudicate. In recent weeks, the courts rendered decisions in two cases involving First Amendment guarantees of the free exercise of religion. We agree with both decisions, but we deplore one of the outcomes.

In Arizona, four activists who belong to the group "No More Deaths/No Más Muertes," an official ministry of the Unitarian Universalist Church of Tucson, were charged with breaking the law when they placed water and food for migrants crossing the U.S.-Mexico border in Arizona's Cabeza Prieta National Wildlife Refuge. The plaintiffs argued that they could not be prosecuted because the 1993 Religious Freedom Restoration Act bars the federal government from placing a substantial burden on their exercise of their religion in the absence of a compelling state interest. What is more, the government must pursue that compelling interest in a manner that least burdens the religious exercise in question. The Hebrew and Christian Scriptures are exceedingly clear on the moral necessity of caring for the migrant. Matthew 25 — "I was hungry and you gave me food, I was thirsty and you gave me drink ... a stranger and you welcomed me" — is presented by Jesus as the measure by which we shall be judged. There is no more central ethical command than this. The government failed to provide any good, let alone compelling, rationale for its action against the activists. At one point in the case, the government argued it had a compelling interest in preventing littering in the refuge. U.S. District Judge Rosemary Marquez was not buying it: "The Court finds that Defendants demonstrated that their prosecution for this conduct substantially burdens their exercise of sincerely held religious beliefs, and that the Government failed to demonstrate that prosecuting Defendants is the least restrictive means of furthering any compelling governmental interest." The other case started in 2012, when adjunct faculty of Duquesne University in Pittsburgh voted to form a union, and the local labor relations board certified the election. In 2018, a panel at the National Labor Relations Board agreed with the local decision, and the university sued, citing its First Amendment right to freely exercise religion without government interference, also appealing to the Religious Freedom Restoration Act. Earlier this month, the U.S. District Court of Appeals for the District of Columbia sided with the university, citing multiple precedents denying the NLRB jurisdiction over religious institutions. We appreciate the constitutional rationale for keeping the government out of religious institutions' business, but unlike the activists in Arizona, Duquesne University was not exercising the Catholic faith, nor acting in accord with a sincerely held religious tenet, when it refused to allow its workers to unionize.

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