The Free Speech Clause and the Free Exercise Clause

|The Volokh Conspiracy |

A commenter asked why I opposed the old Sherbert/Yoder religious exemptions regime, given that the First Amendment protects "free exercise" of religion alongside the freedom of speech and of the press. A few thoughts:

1. I think Justice Scalia is right that the Free Exercise Clause was not originally understood as securing a right to religious exemptions from generally applicable laws. Justice Scalia's opinion in City of Boerne v. Flores (1997) sets forth that argument; Justice O'Connor's opinion in the same case sets forth the counterargument.

2. And in this respect the Free Exercise Clause is actually pretty similar to the Free Speech/Press Clause. The Court's precedents do not require strict scrutiny when someone claims an exemption from a generally applicable speech- and press-neutral laws—a law that doesn't single out speech or press, and that is being applied for reasons unrelated to what is being said or printed. If you want to use peyote to symbolically express your support for peyote, you won't get the protection of the strict scrutiny test under the Free Speech Clause any more than a religious user would get protection under the Free Exercise Clause.

To be sure, United States v. O'Brien (1968) does give speakers a very limited right to exemption from generally applicable laws, if their speech is seen as "inherently expressive." But this right can be restricted whenever the restrictions passes a highly deferential form of intermediate scrutiny (not the strict scrutiny that the Court had announced as to religious exemptions in Sherbert and Yoder). And requests for First Amendment exemptions from speech- and press-neutral laws are indeed generally rejected (see, e.g., Clark v. CCNV (1984)). Justice Scalia, consistently with his view about the Free Exercise Clause, has argued that such exemptions should be categorically rejected, when genuinely speech- and press-neutral laws are involved, and I'm inclined to think he's likely right. But in any event, the current rule comes very closely to such categorical rejection.

3. To be sure, when a law targets speech, or is facially neutral but applies to speech because of its communicative impact, then it is subject to serious Free Speech Clause scrutiny, and often very demanding scrutiny. But when a law targets religion, or applies to conduct because of its religious qualities, then it too would be subject to serious Free Exercise Clause scrutiny (see, e.g., Church of the Lukumi Babalu Aye v. City of Hialeah (1993)). The most that the Free Speech Clause analogy suggests, it seems to me, is that constitutional demands for religious exemptions should be subject to some government-friendly O'Brien-like test, which the government will pretty much always win. It does not cut in favor of strict scrutiny, which is what Sherbert and Yoder seemed to call for.

4. None of this answers the question whether there ought to be broader statutory protection for religious objectors (or for that matter for speakers). But it does explain, I think, why someone like Justice Scalia or Justice Kennedy can support Employment Division v. Smith as to religion-neutral laws, while at the same time supporting broad First Amendment protection for speakers as to speech-targeting laws (and especially laws based on the content of speech). And, as I mentioned in item 1, I think Smith is indeed consistent with the original understanding of the Free Exercise Clause.