Freedom of Religion

Will the Court Read the Free Exercise Clause as Often Mandating Religious Exemptions from Generally Applicable Laws?

Four conservative Justices (Thomas, Alito, Gorsuch, and Kavanaugh) so suggested in an opinion today -- and Justice Breyer had taken a similar view 20 years ago.

|The Volokh Conspiracy |

[1.] Say that you have a religious objection to a generally applicable rule: For instance, say you want to—for religious reasons, and contrary to state or local rules—use peyote, or refuse to rent space to a same-sex wedding, or refuse to testify against a family member in court, or wear your hair long in school. Are you entitled, under the Free Exercise Clause, to get an exemption from such a law or other government rule? There have been three main answers to this question in American history:

[a.] Before 1963, the answer was generally "no": Courts wouldn't grant such exemptions. Legislatures would sometimes carve out those exemptions statute by statute—draft laws and alcohol bans, for instance, have long included legislatively defined religious exemptions. But the Free Exercise Clause was generally read as barring laws that discriminate against religious practice, and not as requiring exemptions from generally applicable laws.

[b.] From 1963 to 1990, the "Sherbert/Yoder rule" answered the question "yes, at least in many cases." Religious exemptions were a presumptive constitutional entitlement, though the government could still deny them if denying them was necessary to serve a compelling government interest.

In practice, courts often denied such exemptions, applying this "compelling interest" test in a relatively weak form, especially compared to how the test was applied in other fields, such as free speech or racial classifications. But sometimes they did grant the exemptions, for instance exempting Amish families from requirements that their children go to school from age 14 to 16, or exempting Sabbatarians from requirements that one be available for Saturday work if one is to get unemployment compensation. (This is still the rule in about a dozen states that have interpreted their state constitutional religious exemption provisions as following the Sherbert/Yoder model.)

[c.] In 1990, in Employment Division v. Smith, the Supreme Court generally returned to the pre-1963 rule, and essentially overruled Sherbert and Yoder (with narrow exceptions that I'll bypass in this post). Congress and state legislatures in a substantial minority of states have created a general statutory exemption regime, using statutes that are you usually called Religious Freedom Restoration Acts. But the Free Exercise Clause isn't read as mandating such exemptions, so the exemptions aren't available in those states that lack RFRAs; and but because RFRAs are statutes, legislatures can exclude certain government rules (such as anti-discrimination laws) from the scope of RFRAs.

[2.] Historically, the broad reading of the Free Exercise Clause has been championed by liberals, and opposed by conservatives. The 1963 Sherbert v. Verner decision, which first adopted it, was written by arch-liberal Justice Brennan; the Court was then all liberals or moderates by today's standards, but the dissenters were two of the more conservative members, Justice Harlan and Justice White (who, though, a Kennedy appointee, was in many ways less liberal than most of the other Justices).

Likewise, the 1990 Smith decision, which rejected it, was written by arch-conservative Justice Scalia, and joined by the solidly conservative Chief Justice Rehnquist, by Justice Kennedy, who was then seen as quite conservative (but whose later opinions have led him to be viewed as a moderate conservative), by centrist Justice White, and by Justice Stevens, who was then seen as moderate (but whose later opinions have led him to be viewed as a liberal). The dissenters were the arch-liberal Justices Brennan and Marshall, Justice Blackmun, who by then was seen as a liberal, and Justice O'Connor, who was a moderate conservative.

After Smith, religious exemptions began to be seen as a bipartisan matter: A broad coalition—including a vast range of religious groups (liberal and conservative) as well as the ACLU, Americans United for Separation of Church and State, People for the American Way, and the American Humanist Association—urged Congress to adopt the RFRA in 1993; RFRA, which passed nearly unanimously, was spearheaded in the Senate by Republican Senator Orrin Hatch and Democratic Senator Ted Kennedy. Likewise, two of the Court's three cases under RFRA (and a similar federal statute called RLUIPA) were unanimous; one held in favor of a small religious group of Brazilian origin that sought to use hoasca, a federally forbidden hallucinogen, and the other in favor of a Muslim prison inmate who sought to wear a short beard.

In recent years, though, religious exemptions have become generallly more broadly endorsed by conservatives, and criticized by liberals. We see that in public debate; and we also saw that in the application of RFRA in the Hobby Lobby case, which involved religious business owners who wanted an exemption from regulations that required them to pay for what they saw as abortifacients for their employees.

[3.] Just today, Justices Alito, Thomas, Gorsuch, and Kavanaugh suggested that they would be open to revisiting this question, and to reversing Employment Division v. Smith. This came in their opinion respecting the Court's refusal to review Kennedy v. Bremerton School District, a Ninth Circuit decision upholding the dismissal of a public high school football coach for visibly praying at, among other places, the 50-yard-line after football games. The main arguments in Kennedy had to do with the Free Speech Clause, and most of the opinion dealt with that, though it ultimately concluded that there were procedural reasons why the Court was right to refuse to review the case.

But the four conservative Justices also added this:

In Employment Div. v. Smith, 494 U.S. 872 (1990), the Court drastically cut back on the protection provided by the Free Exercise Clause …. In this case, however, we have not been asked to revisit [this decision].

That's not a statement that Smith is wrong, or that those Justices would vote to overrule it—but it certainly is a suggestion that they well might do that, and an invitation to litigants to ask for such overruling.

What's more, Justice Breyer had earlier (in City of Boerne v. Flores (1997)) made clear that he thought Employment Division v. Smith was indeed wrongly decided and should be overruled. To be sure, Breyer didn't join the four conservative Justices in Kennedy; but that might be because he disagreed with other parts of their opinion, and saw no need to write a separate opinion expressing his own views. (Many Justices don't write or join opinions related to the refusal to hear a case.) So it looks like there might be five Justices, and not just four, that are at the least open to overruling Smith.

[4.] My personal view is that Smith was correct, largely for the reasons Justice Scalia gave in his Smith majority and his concurrence in Boerne (which dealt with the original meaning question). I also discuss this in more detail in my A Common-Law Model for Religious Exemptions article, where I also explain why I support jurisdiction-by-jurisdiction RFRAs (though written somewhat differently than the current RFRAs)—I think that having courts decide whether to grant exemptions is good but only if legislatures can then revisit the question (as they can under the RFRA model but not under the Sherbert/Yoder model).

Let me also particularly note one argument in favor of Smith, which may be especially apt today.

In Smith, Justice Scalia argued that having courts decide, as a constitutional matter, when denying an exemption is "narrowly tailored" to a "compelling government interest," would involve recurring and impermissible personal value judgments—under the rubric of "balancing"—by judges:

[Such attempts to balance religious liberty and competing state interests would mean] that courts would constantly be in the business of determining whether the "severe impact" of various laws on religious practice (to use Justice Blackmun's terminology) or the "constitutiona[l] significan[ce]" of the "burden on the specific plaintiffs" (to use Justice O'Connor's terminology) suffices to permit us to confer an exemption. It is a parade of horribles because it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice.

This sort of case-by-case "balancing" would have to be done not just as to a narrow range of relatively aberrational cases (e.g., ones involving race classifications or content-based restrictions on generally protected speech), but as to a vast range of laws to which some people have religious objections. It in practice wouldn't involve a very strong presumption in favor of a constitutional right, as it does for free speech or religious equality, because religious exemptions often would need to be denied. And it would be a matter of constitutional law, not just statutory interpretation subject to legislative override, as with RFRAs.

Now this sort of balancing might look fine if you really trust judges to balance such matters impartially. But in my experience, very many observers suggest that the modern debate about religious exemptions is largely a matter of whose ox is being gored: Religious exemptions used to be supported mostly by liberals (on the theory that they promoted multiculturalism and small minority religions' rights) and opposed by conservatives (on the theory that they interfered with government efficiency). But now that the highest-profile religious exemption requests seem to come from religious conservatives (see, e.g., Hobby Lobby, or the Free Exercise Clause arguments in Masterpiece Cakeshop), they are supported more by conservatives and less by liberals.

Indeed, the very shift in the apparent attitudes on the Court, from Smith to today, seems to fit that story. That is not to criticize either the liberal or conservative Justices, either then or now, but just to reflect that human nature often disposes people to subconsciously view contested legal questions in a way that favors those people and causes they sympathize with.

And if that's right, then that further supports Justice Scalia's point: If Justices' ideological sympathies or antipathies to particular classes of religious exemption claims influences their judgment about something as general as how the Free Exercise Clause should be interpreted—does it usually require religious exemptions or not?—then think how much it would influence the judgment about how to apply the compelling interest test in particular cases (if the compelling interest test would be revived).

Many decisions under a neo-Sherbert/Yoder exemption regimes would likely break down on conservative/liberal lines, just as Hobby Lobby did. But now they wouldn't be decisions about interpreting the legislative will in applying a RFRA, but rather decisions about overriding the legislative will (and with no opportunity for legislative reconsideration, the way there is under RFRA). The losing side will understandably worry that they lost just because the Court's majority is on the other side of the culture war from them. And while that of course happens as to various laws, such as laws that bear with marriage, or free speech, or sexual autonomy, religious exemption cases can arise as to virtually any law: health insurance laws, employment laws, public accommodation laws, and much more.

In any event, that's why I'm still with Justice Scalia. But it looks like five Justices on the Court might well not be.

Advertisement

NEXT: L.A. Teachers, School District Reach Deal To Possibly End Strike

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The Congregation Of Exalted Reason — which has compiled a great list of sacraments, and is accepting suggestions for others, just in case that list becomes an important source of entitlement by law — probably can’t lose in this context.

    “When the going gets weird, the weird turn pro” — Dr. Hunter S. Thompson.

    1. That’s one of the lessons practicing attorneys learn quickly. There are no magic words. If anything, overly clever legalisms will irritate judges.

  2. “It is a parade of horribles because it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice.”

    One could use this “principle” as the ground for making the legislative branch, both state and federal, the decision maker in any number of fields–eminent domain, for example. It’s my impression that the Volkh folks wouldn’t mind making the Supreme Court the final arbiter of every eminent domain case in the country.

    1. Careful on that “Volokh folks” — I’m not sure that I’d agree with Ilya’s views on what counts as “public use” in eminent domain cases. Likewise, I suspect there’d be a good deal of disagreement among us on regulatory takings.

      1. Well, if “the law” is so confused that brilliant lawyers like yourself can’t find a common thread, why should we expect politically selected judges to do any better? Guess Scalia got it right (this time).

        1. I see this recurring suggestion from non-lawyer libertarians (though I don’t know your background) that something is amiss if there is not consensus, if not unanimity, on legal matters. That’s so wrong-headed and the source of that spring is a mystery to me. Various people who write, pass, execute, and interpret the law are surely confused, short-sighted, and otherwise imperfect. Recognizing that is no great indictment.

  3. “religious exemption cases can arise as to virtually any law: health insurance laws, employment laws, public accommodation laws, and much more.”

    That’s because the government has gotten bigger and more intrusive.

    I’d say that if those who want to restrict someone’s religious exercise can’t show a court that such suppression is the least restrictive means of achieving a compelling government interest, then it’s a question of religious freedom.

    As to religious bias, the Warren Court judges showed themselves willing to defend Seventh Day Adventists, who as creationists certainly don’t seem like special pets of the Left. And conservative judges have been willing to defend the right of those Brazilians to use controlled substances for sacramental purposes.

    The Smith case doesn’t get rid of religious exemptions, it simply means that if the government unintentionally or accidentally steps on your religious freedom, only the state legislature can cut you a break.

    So we’re not talking about a regime of exemptions versus a regime of no exemptions at all, but a regime where only legislatures give exemptions versus a regime where if you lose in the legislature you can go to court (without being guaranteed a win).

    1. (I should have said state legislature or Congress)

    2. “I’d say that if those who want to restrict someone’s religious exercise can’t show a court that such suppression is the least restrictive means of achieving a compelling government interest, then it’s a question of religious freedom.”

      What’s your response to Scalia?

      1. He would protect the courts from the risk of arbitrariness…by deferring to the arbitrariness of the legislative bodies.

        Bless his heart, it would be implausible that even he could be right 100% of the time, and here’s one of his errors. Keeping the courts “pure” from “activism” while letting legislatures make totally arbitrary decisions on whose religious practices will be respected.

        1. Really, I wouldn’t want to look at a single statute and say, “here’s a religiously neutral law.” I’d look at the entire statute book with its exemptions in certain cases and its denial of other exemptions and say, “I don’t see any neutrality here.”

          1. “I’d look at the entire statute book …”

            The only way your position will prevail is if courts defer to legislatures. Because you at least have a voice at the legislative level.

            1. I have no idea whether or how my position will prevail, though the information in Prof. Volokh’s post seems promising.

              1. What I’m saying is the only world in which you have the power to “look at the entire statute book with its exemptions in certain cases and its denial of other exemptions and say” anything is the one in which it is decided by people who answer to you.

                1. Sorry, I don’t understand your point.

                  1. You don’t get to express your views about looking at the entire statute, if the decider isn’t accountable to you.

                    1. I said the entire statute *book,* ie, all the statutes in the given state (or all federal statutes if the feds are involved).

                      Eg, looking at the federal statute book you see various exemptions for Amish, Christian Scientists, religious pacifists, etc., from some laws (but not other laws).

                      So the issue *for the courts* ought to be whether these exemptions have been doled out arbitrarily, excluding claimants who are equally entitled to exemptions but lack the political clout and/or popularity to get Congress to do something for them.

                      Answer: Of course these exemptions have been doled out arbitrarily, so one might think that even on Smith’s own premises, the courts would have to look at the excluded religions to see whether, in the name of antidiscrimination at the very least, they should get an exemption just like more favored groups.

                    2. (Fortunately, Congress has passed a RFRA applicable to the feds, so the courts have to conduct something like this analysis anyway as a matter of statutory law)

        2. Yes. Scalia’s “parade of horribles” is basically an appeal against anarchy, but his position would maintain “order” by freeing legislatures to be — in a great many cases — arbitrary.

        3. “…by deferring to the arbitrariness of the legislative bodies.”

          Since the weighing of policy decisions (what is compelling, what is not, etc.) is purely subjective, what is the benefit of deferring that decision to people who aren’t qualified to decide the question?

          “…while letting legislatures make totally arbitrary decisions on whose religious practices will be respected.”

          The rule he proposed–which is the law right now–does not give legislatures carte blanche. It just means the court’s aren’t going to interfere with laws of general applicability and decide the policy balancing for the legislature.

          But if you agree this is all arbitrary, why do you even side with the courts? That has to be justified, too.

          1. “But if you agree this is all arbitrary, why do you even side with the courts? That has to be justified, too.”

            By design, the legislature is a tool for short-term, majoritarian decisions. By design, the courts are shielded from short-term, majoritarian decisions. So, if I want decisions that aren’t driven by short-term majoritarianism…

            1. “So, if I want decisions that aren’t driven by short-term majoritarianism…”

              It is precisely because courts aren’t driven by majoritarianism that they’re unqualified to resolve purely subjective evaluations of whether strings are longer than rocks are hard.

              1. It’s precisely because legislatures are driven by short-term majoritarianism that they’re unqualified to resolve issues involving individual rights no matter how subjective the issue is.

                1. Right, because “individual rights” however defined must be sui generis and untouchable. Even though the First Amendment itself did not, for example, prevent states from interfering with the individual rights of religious people.

                  When SCOTUS asserts that its power to decide a constitutional question depends on subjective evaluations of individual rights versus some other consideration–which it has, expressly, with the strict scrutiny test–it’s just conceded that it has no ability to decide the very thing at issue. All it can do is articulate the test and return it to the very people who have already decided, by enacting legislation, that the compelling need is there and the law is written exactly as intended to meet that need.

                  If you think SCOTUS should just decide that all “individual rights” are sacrosanct and should not be interfered with by legislatures no matter what, that’s not what the Constitution says, and that’s not even what pre-Smith 1A jurisprudence says. Maybe you’re correct, but it simply has nothing to do with this discussion.

              2. “It is precisely because courts aren’t driven by majoritarianism that they’re unqualified to resolve purely subjective evaluations of whether strings are longer than rocks are hard.”

                Um, OK. But also… WTF are you talking about?

                1. Apparently NToJ opposes the SCOTUS getting involved in debates over individual rights? And would leave it, barring a fig leaf of possible a rational basis test, entirely to legislatures.

                  There are certain individual rights that are articulated in the Bill of Rights, and incorporated via the 14th, that the court is supposed to protect for us agains the depredations of overweening legislatures. NToJ, are you against this regime?

                  As far as Free Exercise, ED v Smith effectively made it a dead letter. Free Exercise that is limited to the church and home (but which can be encumbered there too), is not much of a Free Exercise at all. And no, the parade of horribles that Scalia envisions are just an excuse, and can be used as an excuse to avoid deciding many other questions of infringement of individual rights.

          2. “The rule he proposed–which is the law right now–does not give legislatures carte blanche.”

            I suppose what I was *trying* to say was that in the case of what Scalia called “generally applicable laws,” the legislature has carte blanche on whether to grant religious exemptions.

            They kept in place all the precedents against *deliberate targeting* of religious minorities; Scalia was dealing with situations in which the poor innocent legislature is going along innocently, forbidding this and that, and not caring whether the people they step on are religious or not.

            1. Of course, if the legislature specifically targets a religious minority with a law–which means it is not a law of general applicability–that raises different issues. And that happens to be the law, today.

              1. Why, so it is.

  4. My personal opinion, as a matter of policy, is that religious practice shouldn’t require any special accommodation, because any religious practice it would make any sense to accommodate shouldn’t be burdened in the first place, regardless of the motive for engaging in it.

    That is to say, the issue only comes up because we’re already subject to too much intrusion into our lives.

    But, as a constitutional issue, the 1st amendment does, in fact, single out religion for special accommodation: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” and Smith failed to properly take that into account.

    Constitutionally, religion IS due special deference. Government needs special justification for interfering with the exercise of religion, thanks to that.

    But, only because basically no justification is required otherwise for interfering with people’s choices. A proper respect for individual liberty would have left nothing in need of such deference.

    1. “Constitutionally, religion IS due special deference. Government needs special justification for interfering with the exercise of religion, thanks to that.”

      Prohibiting and interfering are not the same thing.

      1. True, but the cases we are discussing on the “prohibiting” side of the line. The cases don’t involve things like the government shutting down upper Fifth Avenue on a Sunday for the New York marathon, which makes it hard for people in Harlem to get to church–that is interfering with the exercise of religion, but no one thinks it is unconstitutional. The cases being litigated involve fining and imprisoning people because they won’t, for example, bake cakes that celebrate sex change operations–when you fine and imprison people, that is on the “prohibiting” side. If there were a law imposing a $50 fine on anyone who wore a yarmulke, even Prof. Volokh would find that to be “prohibiting” the free exercise of religion.

        1. The only person who’s been imprisoned is Kim Davis, and that had nothing to do with non-discrimination law, and everything to do with her both refusing to do her job, and refusing to let her employees do their jobs.

          1. Indeed, her five-day jailing (not “imprisonment,” as that is generally meant) was for contempt of court.

            She could as a matter of conscience refuse to carry out her duties as an officer of the state, but there are costs that one must be willing to bear. Things should be different for a private citizen.

        2. “If there were a law imposing a $50 fine on anyone who wore a yarmulke, even Prof. Volokh would find that to be “prohibiting” the free exercise of religion.”

          That would be illegal even under Smith. The example you used (“fining and imprisoning people because they won’t, for example, bake cakes”) would not be a problem under Smith. They’re laws of general applicability. Requiring bakers to comply with generally applicable antidiscrimination laws–which I disagree with–is not prohibiting the exercise of religion. An anti-drug law (i.e., Smith) can lead to imprisonment.

          1. Yeah, and requiring bakers to be open on Saturdays would be a law of general application, too, but kind of hard on Jews or 7th day Adventists.

            1. Yes, very hard on Jewish bakers or 7th day Adventists who are bakers. Maybe even atheist bakers who don’t want to work on Saturdays. But if laws weren’t hard on people, we wouldn’t need them. It is the purpose of law to compel behavior.

              1. Just pointing out you can always tailor a “law of general application” to fall particularly hard on a religion you don’t like, if you don’t need a good reason for the law to begin with, just a vague excuse.

                1. Well that’s going to be a very different sort of analysis than the balancing test rejected in Smith. You can still decide that a “neutral” law isn’t in fact neutral, i.e., Church of Lukumi Babalu. But you have to make the argument that laws requiring bakers to be open on Saturdays is targeted at Jews and 7th day Adventists. (Maybe they were or are, I don’t know.)

          2. NToJ: “Requiring bakers to comply with generally applicable antidiscrimination laws–which I disagree with–is not prohibiting the exercise of religion.”

            Based on Smith, Scalia would invoke the “parade of horribles” against the cake baker’s plea, on the grounds of the potential for anarchy if Phillips were not forced to follow Colorado law (I imagine Scalia might have signed on to Kennedy’s narrow “religious animus” ruling).

            Interpreted broadly that ruling could threaten religious freedom anywhere outside the home and church, on the grounds that the court wouldn’t want to interfere.

            And yet Scalia joined the majority in Burwell v. Hobby Lobby — and here there was a religious exemption sought by a corporation of all soulless things (albeit a closely-held one). Sure the RFRA was in force in 2014, but this seems like one of those “parade of horribles” cases that concerned him.

            In my view, the cake baker would have better standing on free speech grounds, with his religion giving him the grounding for his beliefs. My understanding is that in the “new” case of Phillips and the transgendered lawyer, Phillips is using free speech more prominently.

            1. “(I imagine Scalia might have signed on to Kennedy’s narrow “religious animus” ruling).”

              I doubt it from Scalia’s concurrence in Church of Lukumi, where he said legislative animus was irrelevant.

              “…but this seems like one of those “parade of horribles” cases that concerned him.”

              Under the RFRA, the Supreme Court has been asked by Congress explicitly to engage in the balancing test that Scalia rejected as a constitutional mandate. That has nothing to do with the free exercise clause.

              1. Which is in some sense the worst of both worlds — the Court still has has to do the same test, but because RFRA is legislative, it’s neither applicable to the States nor universally applicable to Federal Law.

                1. And does the RFRA even apply when a customer’s own rights are in the mix? The business made a public offer and the public is a group of all beliefs. How could the court allow after the invitation religious discrimination when the issue is the business owner has different beliefs than those he invited to buy but they have a right to have different beliefs and still buy what he offers?

            2. The problem with free speech is the obligation to respect civil rights is the business’s, not any particular ‘baker’. If Star Trucking can say a particular employee should get religious accommodation for merelly delivering alcohol then of course a baker can for crafting a cake. That doesn’t absolve the business was from its obligation to respect the civil rights of customers responding to a public offer.

              In the original case the owner admitted multiple people decorated wedding cakes and in the current case virtually anyone can make a pink cake with blue frosting.

              Every customer responding to a public offer has a constitutional right to not share the business owner’s beliefs and a civil right to buy what was offered regardless of their own and they have a right to use their purchase according to their own.

              1. Every customer responding to a public offer has a constitutional right to not share the business owner’s beliefs and a civil right to buy what was offered regardless of their own and they have a right to use their purchase according to their own.

                Obviously every customer has a right to believe what he believes, and not to believe what he doesn’t believe. But the rest of your comment is based on a fundamental misconception.

                Businesses do not typically offer to sell to the public in general. They set up their stall and customers offer to buy. Businesses are not (absent specific direction in public accommodation statutes etc) obliged to accept any customer offer, nor do businesses typically put out any kind of notice stating that they will sell to anyone who seeks to buy from them. So the notion that businesses are under a moral or legal duty to sell whatever they are displaying in their shop window, to anyone who walks in, is simply wrong. And so the argument that they should be made to live up to their promise is simply misconceived. They haven’t made any promise to live up to.

                1. Not about a promise, its about an invitation. Consumer Protection laws kick in at the public invitation by the business and from that moment on they are subject to public regulation and enforcement, e.g. any offer they make must respect the civil rights of the those members of the public responding to their invitation.

                  And not ‘to anyone’. A business can rescind their invitation but not for any reason legally, particularly not one tied to civil rights or religious freedom.

          3. How about a law forbidding the wearing of hats? A law outlawing yarmulkes is specific, but a law banning all headgear, which say also includes wigs would be a very effective way to crush certain religious practices.

            1. You had that sort of general attack on a specific religion, with the laws against private schools in several states, which were aimed mostly at the Catholic religion, as that was the chief religion running private schools at the time.

            2. What about that law? I don’t view it as being materially different than a ban on peyote for constitutional purposes, or practically different than existing laws requiring people to take off their hats for government ID. (Most states do permit turbans, headscarfs, etc., but I don’t think that’s because it is constitutionally mandated under the free exercise clause.)

            3. As the court has made clear they are going to conflate religious expression with freedom of speech. The crafter can refuse to craft anything for a usage not compliant with their beliefs because that would be a ‘message’ they refuse to ‘say. They will ignore the business invited public which people of beliefs that weren’t theirs.

              Saying they only belief in male female marriages and won’t ‘say’ a message otherwise excludesthe many beliefs that think God blesses marriage regardless of ‘male or female.’

              If that is allowed why can’t they refuse to sell to events where men dishonor themselves? (Paul said men engaging in religious activity with something on their head dishonored their head). That would excuse some sects of several denominations and religions.

              If one customer’s beliefs are irrelevant to the refusal of the business why wouldn’t they all?

              1. [ the courts] will ignore the business invited public which people of beliefs that weren’t theirs.

                As noted above, this is a misconception. The business does not offer to sell to the public. Individual customers offer to buy from the business, and the business decides whether to accept the offer or not, as it chooses. (Likewise, the customer gets to choose whether to make an offer or not. He doesn’t commit himself to a purchase merely by walking into the shop.)

                Saying they only belief in male female marriages and won’t ‘say’ a message otherwise excludesthe many beliefs that think God blesses marriage regardless of ‘male or female.’

                Yup. Typically we “exclude” all sorts of things from what we say. It works out best if each person works out what to exclude from what he says, or does, himself. And yes, it can be absolutely infuriating if other people don’t do exactly what you want them to. Bummer, but learn to live with it. Or become Stalin. But I’d much rather you learned to live with it.

                If that is allowed why can’t they refuse to sell to events where men dishonor themselves?

                They can so refuse. Also they can refuse to sell to men wearing Patriots sweatshirts, MAGA hats, Che T shirts or any kind of shirt which lacks the crisp signs of a good ironing that the shopkeeper likes to see.

      2. NTOJ : Prohibiting and interfering are not the same thing.

        True. But “prohibiting the exercise of religion” and “prohibiting the free exercise of religion” are not the same thing either.

        The first would allow the government to prohibit such parts of the exercise of a religion that it felt like prohibiting, so long as it left devotees a good slice of their religious pie. The latter would not. “Interfering with the exercise of religion” and “prohibiting the free exercise of religion” are close cousins, at least when contained in an instruction to the legislative branch.

        1. I don’t agree with you that “prohibiting the free exercise of religion” is more like “interfering” than “prohibiting the exercise of religion”. I agree with Scalia’s interpretation limiting application to laws that are not of general applicability.

          1. So you’re on board with laws requiring all businesses to be open on Saturdays (public convenience) or prohibiting infant circumcision (interferes with infant’s bodily autonomy)?

            1. I’m ok requiring certain businesses to be open on Saturdays. Not bakers. Thinking maybe hospitals. Keep in mind that what I might be “on board with” has nothing to do with whether a law is unconstitutional.

              I’m ok with laws prohibiting infant circumcision. I wouldn’t vote for the law because I don’t think it needs to be the state’s business, but I certainly wouldn’t tell you it’s constitutionally prohibited. I mean, don’t you think states have the power to prohibit infant circumcision?

              1. “I’m ok requiring certain businesses to be open on Saturdays. Not bakers. Thinking maybe hospitals.”

                Meh. I’m FAR more likely to be wanting to grab some donuts on a Saturday than I am to think I want an appendectomy or infant circumcision.

                1. And I wish the law was that bars were required to be open on Saturdays if it increased my access to beer. But I’m also humble enough to say that I’d rather bar owners have the individual freedom to stay closed on those days, even if it inconveniences me, because individual autonomy is a good in and of itself.

              2. If the State can prohibit infant circumcision, which is a central ritual and tenet of Judaism, merely because some legislators prefer uncut male organs, then the Free Exercise Clause has truly been excised from the Constitution. Which I know a number of the Conspirators would like to do, but it doesn’t happen to be what the Framers had in mind.

                1. When your “central ritual and tenet” kills babies because your holy man refuses to let someone do the job that doesn’t have Herpes?, I think it’s okay for the government to step in and say the way you’re practicing your religion is crossing a line.

                  ________
                  ?Not hypothetical: [Link]

                2. “If the State can prohibit infant circumcision, which is a central ritual and tenet of Judaism”

                  How about because the person who decides that a sex organ should be cut, and the person whose sex organ is to be cut, are different people.
                  (Note that “infant circumcision” is not limited to male infants).

                  I see a difference between a person choosing to surgically alter their own body in accordance with their beliefs, and a person choosing to surgically alter someone else’s body. This is more common in cases where the parents are OPPOSED to surgery, and the kid needs one.

                3. Why would that law be any different than a law that bans peyote, since there are apparently people for whom peyote is as important as circumcising infants?

      3. “Prohibiting and interfering are not the same thing”

        Isn’t prohibition just the strongest case of interference?

        1. Isn’t prohibition just the strongest case of interference?

          No. You can go beyond prohibiting what I want to do (eg sing the praises of the Lord) and mandate that I do something that I don’t want to do (eg sing the praises of Satan.)

          But in any case, we have to pay attention to what it is that is being prohibited. Prohibiting a particular thing is quite different from prohibiting the free choice of things. Thus suppose the Constitution barred Congress from “prohibiting to parents the free choice of names for their children.” And then Congress passes a law saying “No parent may name their child Beelzebub.”

          John, Consuela, Moon Unit – they’re still fine. Only Beelzebub is banned. But by banning Beelzebub, Congress has prohibited the free choice of names. It looks like just a little interference, but because what Congress isn’t allowed to prohibit is not a particular name, but the free choice of names, Congress has broken the rule, just by banning a single name. Because without the liberty to choose that name, the choice is no longer free. It’s restricted.

    2. because any religious practice it would make any sense to accommodate shouldn’t be burdened in the first place, regardless of the motive for engaging in it.

      So we shouldn’t have laws against peyote? Or laws requiring 16 year olds to attend school?

      1. “So we shouldn’t have laws against peyote?”

        The question is, what KIND of laws against peyote?
        People who had peyote as part of their religious practice prior to the passage of peyote prohibition, wanting to be allowed to go back to using peyote as part of their religious practice are at one end of the spectrum.

        People who want to score some peyote and then drive around the public roadways are near the other end.

        Applying a libertarian lens to it, I can differentiate… one end involves affecting other people, and the other doesn’t.

        1. Are you suggesting that recent converts to a religion have fewer free exercise rights than people that were exercising that right at some arbitrary date in the past? Is this suggestion supported by any kind of historical practice or legal precedent?

          I’m not suggesting that we allow DUI of psychedelic substances (hard to imagine anyone that does…) but Brett’s statement that “anything that we should accommodate should just be legal in the first place” seems easy enough to refute by counterexample.

          1. “Are you suggesting that recent converts to a religion have fewer free exercise rights than people that were exercising that right at some arbitrary date in the past?”

            Not even vaguely? Whose ass did you pull THAT out of?

            1. From your comment!

              People who had peyote as part of their religious practice prior to the passage of peyote prohibition, wanting to be allowed to go back to using peyote as part of their religious practice are at one end of the spectrum.

              I don’t understand how the “prior to the passage” … “go back” part is relevant. By including those modifiers, you at least suggested that they are relevant to the analysis.

              By contrast, my understanding of historical precedent and settled law is that a long-time adherent is identically situated (from a RF point of view) a recent convert.

              1. “From your comment!”

                “People who had peyote as part of their religious practice prior to the passage of peyote prohibition, wanting to be allowed to go back to using peyote as part of their religious practice are at one end of the spectrum.”

                Not even vaguely similar to
                “recent converts to a religion have fewer free exercise rights than people that were exercising that right at some arbitrary date in the past”

                In the sense that recent converts to a religion aren’t in there, reference to free exercise rights isn’t in there, and people who were exercising that right at some arbitrary date in the past aren’t in there. Other than those minor details…

          2. Are you suggesting that recent converts to a religion have fewer free exercise rights than people that were exercising that right at some arbitrary date in the past?

            Scalia did. Kennedy didn’t.

            Specifically, when it comes to recognizing “new” rights, Scalia was of the mind that we should not read the 9th Amendment to grant rights that aren’t “traditional”. Kennedy countered that a right not being “traditional” wasn’t sufficient basis to ignore it, as that removes redress for people who have not historically had their rights respected.

            So while Pollock may not have suggested it, that most certainly is something that “originalists” have argued.

            1. ” as that removes redress for people who have not historically had their rights respected.”

              I think you’ve fundamentally misunderstood the basis of Scalia’s approach to the 9th amendment. It isn’t about people, it’s about acts. If a particular sort of act was a crime at the time the 9th amendment was adopted, it can’t be a 9th amendment protected right, regardless of who typically engages in it. (Though it could be protected under a later amendment.)

              While if a particular sort of act would have been seen as a right back then, then everybody gets their engaging in it protected, regardless of whether they’re the sort of person who wouldn’t have had their rights respected back in the early 1800’s.

              Naturally, there are going to be groups of people, defined on the basis of the sorts of acts they want to engage in, who are out of luck under this analysis. That’s just sort of baked into the fact that not everything is a right.

              For instance, under this analysis gardening is probably a 9th amendment right, and it is so for blacks as well as whites, despite blacks having typically not had their rights respected at that time.

              While incest would not be a 9th amendment right, even if you could identify some particularly frowned upon group that was known to engage in it.

              1. No, I get that it’s a Catch-22 just fine. There’s a good reason Scalia’s BS didn’t prevail.

                1. Because otherwise, there wouldn’t be a “right” of a homosexual man to sodomize another dude. And we just can’t have that, can we!

                  1. “otherwise, there wouldn’t be a “right” of a homosexual man to sodomize another dude.”

                    And there isn’t such a right.

                    1. The drunken Irishman, Anthony Kennedy, ruled otherwise.

                    2. Similarly, if Scalia’s view had reigned supreme, we’d still have adultery laws, laws banning birth control (even for married people), mandatory prayer and reciting the Plaedge of Allegiance in public schools, miscegenation laws, blue laws, etc. and so-on.

                      It’s a deference to “tradition” regardless of merit. If you’re for that, go for it. But you shouldn’t fool yourself that it’s all about gay people. Strict “original intent” allows a very tyrannical government.

                    3. And if people want those things, they should get them. All you have to do is convince 51% of people that it’s wrong.

                    4. We do still have adultery laws. Professor Volokh reported on court rulings that adultery laws survive Lawrence.

  5. How about this?

    A: Everybody is responsible for complying with laws for general security and infrastructure. (ie basic taxes and not wearing a full veil hijab in a mugshot).

    B: Nobody is responsible/exemptions are given for extraneous laws regulating morality or ‘oughta-be’ laws. Which frankly shouldn’t exist 9/10 times in the first place. This includes laws mandating ‘nondiscrimination’ and public indoctrination er education. (some form of continuing education that the faith can structure to their tastes might still be requested)

    Exemptions to A may be granted in an extraordinary case by case basis where indisputable tradition,sincere belief, and public interest demand it. ie military service for extremely devout small sects (might be a bad example but it just goes to show how few exemptions are needed). But these will be rare clearcut cases.

    Problem solved.

    1. Then you’re just making your own lines to the the balancing on what you think may be a compromise between right and left.

      1. The fundamentalist christian can’t force people to follow their morality and the SJW can’t force people to follow their morality. Whats the problem unless you believe as the ‘fundies’ you bagged on constantly in the 90s did there is one ordained correct morality the government should adapt and force upon everybody?

    2. Are drug laws “general security” or “morality” ?

    3. “Problem solved.”

      And several new problems created…

      1. Yeah, if a deviant couple has to go to another baker to get their “wedding” cake, that’s just a huge problem!

  6. Why do people who are forced to violate the tenents of their religion care whether they are forced to violate the tennents of their religion based on a generally applicable law?

    1. Same reason compelled speech is offensive even if the speech itself is inoffensive. There’s also the existential threat of living in a nation where laws supersede their religious exercise. Precedent or not, fleeing religious persecution and tolerating ideas you don’t agree with are fundamentally American values.

      1. My comment was poorly phrased. Why do people who are forced to violate the tenets of their religion care whether they are forced to violate the tenements of their religion based on a generally applicable law, or a specifically targeted law? The Smith/Boerne dissent was correct. The purpose of the free exercise clause is to make sure we don’t force people to violate their religion without good reason, not to make sure that the legislature isn’t engaging in wrong-think when it forces people to violate their religion.

        1. The fact that the law is of general applicability is the “good reason”. But even if it isn’t, the idea that “good reason” should rest with judges cannot be justified. Even if the Constitution requires it, that doesn’t mean it requires judges to answer what “good reason” means. How could they? Did you take a “good reasons” class in law school?

          1. I ANAL. But of course you don’t need a good reason to pass a law of general applicability.

            1. You do if it impinges rights of the individual.

              The problem, then, is that “good reason” is a subjective determination, and there is lack of consensus on the topic.

            2. Careful, Brett might start calling you a deviant.

  7. Religion is a quaint lifestyle choice, and some in power don’t like you escaping their power by arrogantly believing it an important or even core part of your life.

    1. This is why business rights, “secondary rights”, are deemed more important than the religious part of the First Amendment, evidently a tertiary right.

      I wonder if we can squeez something else in there, making religion a quarternary right.

  8. Modest proposal: unincorporate the free exercise clause and let federalism work its magic.

    1. I think that’s an excellent proposal, provided that it is combined with a ruthlessly textualist interpretation of the free exercise clause as against Congress – ie that Congress is absolutely required to accommodate free religious exercise in composing its generally applicable laws.

      1. “ruthlessly textualist interpretation of the free exercise clause” is not going to resolve the issue in the way you think. No one was more ruthlessly textualist than Scalia.

        1. Scalia may have been primarily a textualist, but there’s no textual analysis in his opinion in Smith at all, merely a one sentence announcement of his conclusion:

          It is a permissible reading of the text, in the one case as in the other, to say that if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.

          There’s no mention of why Scalia thinks this is a permissible reading, or why we should accept a permissible reading rather than a reading that is entailed by textual analysis, or if not entailed why this reading is textually to be preferred over any competitors. In fact the Smith opinion is mostly a recital of precedent.

          1. And as to the textual analysis itself, Scalia’s conclusion is weak because he assumes that the text only forbids laws which have the object of prohibiting the free exercise of religion. But the text says nothing about Congress’s object. Objects are not mentioned. The text simply prohibits a prohibition on free exercise. If my religion demands that I do X, and Congress, entirely unaware that my religion makes this demand, prohibits me (and everybody else) from doing X, then when I am hauled up before the court, what is my defense ?

            The free exercise of my religion demands that I do X (stipulated) but it is forbidden. By whom ? By Congress. There’s a prohibition on my free exercise and it was put there by Congress. There’s nothing in the text that says anything else is required.

            1. It’s also a bit dated post the “disparate impact analysis” revolution. Object are irrelevant nowadays.

            2. “…Scalia’s conclusion is weak because he assumes that the text only forbids laws which have the object of prohibiting the free exercise of religion.”

              The idea is that to “prohibit” something you must, at a minimum, be targeting it. (With the understanding that even if Congress is targeting it, the law must do so actually rather than just be intended to do so, see Scalia’s concurrence in Lukumi.

              1. Thanks for Lukumi. After your pointer, I am rather surprised to find that Scalia entirely agrees with me. The legislators’ object (or purpose) is irrelevant (not least, as Scalia explains, because a collective purpose in a legislature is a fictional construct.) All that matters is the effect :

                The First Amendment does not refer to the purposes for which legislators enact laws, but to the effects of the laws enacted: “Congress shall make no law . . . prohibiting the free exercise [of religion]. . . .” This does not put us in the business of invalidating laws by reason of the evil motives of their authors. Had the Hialeah City Council set out resolutely to suppress the practices of Santeria, but ineptly adopted ordinances that failed to do so, I do not see how those laws could be said to “prohibi[t] the free exercise” of religion.

                1. Right, so you should understand now that you’re misreading Scalia’s position. He’s textualist, he just disagrees with you.

                  I think your idea of textualism is taking it to absurd lengths. Scalia’s textualism–and the textualism accepted everywhere so are as I can tell–is that the words should be given the effect intended by the people who ratified. Some look to original intent expressed by legislatures. Scalia rejected this for a textualism that looks towards common usage. But keep in mind his common usage included terms of art as well. Article III sec. 3 doesn’t prohibit blood poisoning (“Corruption of Blood”). It prohibits killing the child for the father’s sins. If you want to make a textual argument about “prohibiting the free exercise of thereof”, you have to confront what that phrase meant to people in 1791. Professor McConnell made the strongest argument for it back in 1989. He’s wrong, but that’s the best argument made, not the one you’re presenting. The textualism you’re espousing doesn’t even support the pre-Smith strict scrutiny analysis of laws of general applicability.

                  1. Scalia’s textualism–and the textualism accepted everywhere so are as I can tell–is that the words should be given the effect intended by the people who ratified.

                    But wherever did you get such an eccentric notion ?

                    https://en.wikipedia.org/wiki/Textualism

                    “Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as: intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law.”

                    1. Here’s Scalia quoted a line or two down :

                      {Scalia} staked out his claim in his 1997 Tanner Lecture: “[it] is the law that governs, not the intent of the lawgiver.”

                      And here’s Oliver Wendell Holmes from more than a century ago :

                      “We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used … We do not inquire what the legislature meant; we ask only what the statutes mean.”

                      For a textualist, “intent” is irrelevant until the text has failed to reveal an unambiguous unvague answer. Intent is the fieldgoal unit. You use it when your attempts at a touchdown have come to nothing.

                    2. “For a textualist, ‘intent’ is irrelevant until the text has failed to reveal an unambiguous unvague answer.”

                      True, although in practice, agreement on whether or not there is an unambiguous unvague answer can be hard to come by.
                      This is because the human brain inserts “missing” pieces to see a picture, and how it does so depends on past experience, and people come with differing sets of past experience.

                    3. More generally, textualism is just a subset of originalism that ignores legislative intent sources in favor of the plain text. This isn’t because textualists are unconcerned with original intent, it’s because they doubt that self-serving legislative statements can provide guidance on intent. They are also concerned, rightly in my view, that it’s sometimes impossible to discern the intent of a large and diverse set of legislators/ratifiers. As judges tasked with interpreting the intent of legislation, textualism answers (on behalf of originalism) some very important questions.

                      I do not think “intent is irrelevant” for textualists, like Scalia. Laws have intents and meanings, and without the possibility of those being interpreted faithfully, the system fails. “A system of democratically adopted laws cannot endure–it makes no sense–without the belief that words convey discernible meanings and without the commitment of legal arbiters to abide by those meanings.”

                    4. NTOJ : More generally, textualism is just a subset of originalism…

                      No, this is precisely backwards. Originalism is a subset of textualism. Textualism simpliciter, in insisting on interpretation by reference to the meaning of the text, leaves unspecified whether we are to choose the meaning of the text as understood by the current reader, or by the reader at the time of enactment / adoption; (or some point in between.) Originalism is that
                      subset of textualism which specifes that it is the original meaning that is to be chosen, not the current meaning (where the two differ.)

                      ….that ignores legislative intent sources in favor of the plain text

                      No.

                      Legislative sources are not to be ignored simply because they are imperfect records of the intent of the legislature, but because the intent of the legislature itself is, except as the fieldgoal unit, irrelevant. Scalia couldn’t be clearer :

                      “[it] is the law that governs, not the intent of the lawgiver.”

                    5. Laws have intents and meanings, and without the possibility of those being interpreted faithfully, the system fails.

                      No. You have glued “intents and” to a perfectly reasonable statement about meanings and a citation that is entirely about meanings.

                      “A system of democratically adopted laws cannot endure–it makes no sense–without the belief that words convey discernible meanings and without the commitment of legal arbiters to abide by those meanings.”

                      Yes, right. There’s nothing in there about intents at all.

                    6. His textualism re: “ordinary meaning of the law” (quoting Wikipedia) is ordinary meaning of the law at the time it was written. It incorporates terms of art. Scalia wrote about this in his book, Reading Law: The Interpretation of Legal Texts. It’s Section 6, titled “Ordinary-Meaning Canon”. The term of art discussion begins on page 73.

                    7. Who’s arguing about ‘terms of art” ? What we’re looking for is a nice clear statement from Scalia’s book that says we should be paying attention to the lawgiver’s intent in preference to the meaning of the text that the lawgiver wrote down.

                      Feel free to quote it when you find it.

                      The reason why you won’t find it goes to the heart of why intent is irrelevant. It is necessarily obscure, even if you postulate that all 535 congresscritturs might have had the same intent. The reason it is obscure is that it is not written down. It exists in the rarified gases that permeate the judicial mind. The text is preferable, by a couple of orders of magnitude, because it is not open to dispute. Certainly its meaning is open to dispute, but at least we’ve got the text itself, beyond argument. If intent was written down, and incorporated in the text of the law, it would stand on an equal footing. Because it would then be part of the text !

          2. “There’s no mention of why Scalia thinks this is a permissible reading, or why we should accept a permissible reading rather than a reading that is entailed by textual analysis…”

            Are you saying it isn’t a permissible reading? And what “textual analysis” are you engaged in to reach your conclusion?

            1. Are you saying it isn’t a permissible reading?

              I didn’t engage with that – my point was that Scalia didn’t try to explain why it was a permissible reading, nor why a merely permissible reading should be conclusive. Consequently, as I said, his opinion was mighty short on textual analysis.

              Whereas my own opinion was positively seething with analysis of the text :

              And what “textual analysis” are you engaged in to reach your conclusion?

              Carefully perusing the text I spotted, eagle eyed, what Scalia also spotted in Lukumi – that the text makes no mention of purposes or objects. I then offered an example of how the text could be understood without having to slide in a secret “object” requirement. Something that had the mere effect of prohibting the free exercise of my religion, by prohbiting activity X, fell neatly within the object-free meaning of the text. And I am happy to see that Scalia in Lukumi realised that the text is indifferent to the legislature’s object. It cares only about the effect.

              1. Right, but he thinks the prohibited effect is different from the one you’re thinking of. We can agree that the object of the legislature’s intent is irrelevant, but that doesn’t mean “prohibiting . . . free exercise” means all indirect interference.

                1. “the prohibted effect” and “the object of the legislature’s intent” are assemblages beyond my powers of textual analysis. The object of the legislature’s intent – eh ?

                  The legislature prohibits an act (X)

                  The prohibition of X may have a number of different effects on different people. It may prevent me playing football, in which case it has the effect of prohibiting the free exercise of my sporting talents. If X is necessary to the free exercise of my sporting talents, that which prohibits X ineluctably prohibits the free exercise of my sporting talents. That is the effect whatever the legislature may have had in its little mind when it prohibited the act (X).

                  It may prevent you from repainting your sitting room, in which case it prohibits the free exercise of your DIY plans. It may prevent George from worshipping Baal on Wednesday nights. It prohibits the free exercise of George’s religion.

                  You and I are out of luck, legally, because there’s no constitutional bar on the legislature prohibiting the free exercse of my sporting talents or your DIY plans. But George is OK – because the legislature has prohibited the free exercise of his religion. It has prohibited an act (X) which he (we stipulate sincerely and correctly) understands to be an essential element in the free exercise of his religion.

    2. Y’all can’t even get support for repealing the Civil Rights Act (1964) and it’s freedom-squashing public accommodations provisions. You think you can pull off a move that clears the way for Alabama to declare itself a Baptist state?

      Sounds interesting. You have my full ambivalence in your crusade.

      1. They only need 5 votes in favor…

        1. The implication being that should be a low, achievable bar. That they still can’t hit.

  9. Start working at home with Google. It’s the most-financially rewarding I’ve ever done. On tuesday I got a gorgeous BMW after having earned $8699 this last month. I actually started five months/ago and practically straight away was bringin in at least $96, per-hour. visit this site right here……………… http://www.payshd.com

  10. When I learned about Smith in law school, I did have to come around and respect it. And Boerne is one of my favorite cases ever, although more for it’s history and dorky procedural aspects than the substance.

    But those to my left in the class sure did come down against Smith back in the days of yore (2004). Now that Free Exercise is being (predictably IMO) used as another policy rout akin to states rights by conservative Christians, I expect this to get pretty hot pretty fast.

    1. Strangely, putting religion in the Bill of Rights was to prevent things from getting pretty hot pretty fast by simply making it off limits.

      1. Dunno about that; that seems too naive about human nature’s love to argue on the margins for the Founders.

      2. To be clear, it was to make it off limits for the federal government. It was always expected and intended that states would gleefully fill the gap.

        1. The original assumption was that the states would stand as guardians of individual freedom, against the federal government. This fundamental assumption was inverted in 1868.

          1. Yeah… no.

            At the time the Constitution was written, there had already been a decade of state debates over to what degree a state should and shouldn’t interfere in the religious practices, and funding of said practices, of it’s citizens. And not surprisingly, different states had different answers. Which is why the First Amendment did not apply to the states as originally written and ratified, because if it had, it wouldn’t have been ratified as too many states would have been in violation from the start.

            So to the degree that anyone assumed states would “stand as guardians of individual freedom”, that “individual freedom” very obviously did not include “Freedom of Religion”.

            1. “So to the degree that anyone assumed states would “stand as guardians of individual freedom”, that “individual freedom” very obviously did not include “Freedom of Religion”.”

              As you said, different states reached different points of equilibrium, and people* were to be free to go live in the states that matched their preference. But with the various capitals of the states being closer than the as-yet-hypothetical national capital, the belief was that the states would be more responsive to the people than would the federal government. The colonists had experience with a far-away national government with sovereign power that didn’t respond to their concerns, and more local governments that defended their freedom against the far-away capital. You can look that up.

              And, duh, quoting from the First Amendment to talk about the original Constitution is pointless, as the original Constitution didn’t have any amendments.

              1. More responsive? Yes.

                “guardians of individual freedom”? No.

                The Constitution and Bill of Rights was about preventing a federal tyranny. It wouldn’t be until Incorporation that people decided it was really about preventing tyranny in general. You can look that up.

                1. “The Constitution and Bill of Rights was about preventing a federal tyranny.”

                  The Founders were pretty much against all tyranny. Look it up.

                  1. I’ll take “things you shouldn’t say about slave-holders” for $100, Alex!

                    That said, that’s an irrelevant tangent. What we were talking about was the Constitution and Bill of Rights. Which regardless of the beliefs of the founders, did dreadfully little to prevent Tyranny of the State.

                    So you can continue talking about what they really intended, but not with me.
                    Bottom-line is that the government they actually set-up was okay with state-level tyranny, just not federal-level tyranny.

                    To reiterate: the founders were okay with states impinging on the Free Exercise of Religion of their citizens. They were not okay with the Fed impinging on the Free Exercise of Religion of it’s citizens.

    2. “Now that Free Exercise is being (predictably IMO) used as another policy rout akin to states rights by conservative Christians”

      Agreed, the left hates Christians.

      1. First, that’s an orthogonal statement to the one I made. Gratuitously orthogonal, even!

        Second, your definition of Christian would seem pinched and idiosyncratic, considering how many liberal Christians there are.

      2. “the left hates Christians.”

        Odd, considering that most of the left ARE Christians.

        1. “most of the left ARE Christians.”

          Not any more. Some are but the majority may observe Christmas/Easter in a secular way but that is it.

          1. I guess you know more about leftists than I do. I bet you even know the secret handshake…

            1. No, I just read what they say. No special talent.

              1. Sure. Wink, wink. You just pay REALLY close attention to the secret newsletters.

          2. Moving from general statements about the left to ‘the majority’ of the left. And not bothering to google whether there is data proving you wrong.

            That pivot I noted above is gonna take more effort than that!

            1. No, no, no. Bobbie knows what’s REALLY in their hearts. I can only assume it’s because he knows each and every one of them, personally, enough to know their religious habits.

            2. Two US senators including the likely next president of the US think that membership in the Knights of Columbus makes you unfit to be a judge.

              The internet is filled with Sky Fairy and magic man in the sky comments about believers.

              The left hates believers, especially Christian believers who don’t favor abortion. The evidence is all around you.

              1. Yeah, so your definition of Christian is indeed very narrow and tribal.

                Have you considered the left is unhappy with people who support abortion regardless of the origins of that belief?

                1. “Have you considered the left is unhappy with people who support abortion regardless of the origins of that belief?”

                  1. this statement is backwards. The left are the ones who support abortion.

                  2. If the corrected statement were true, why are the most wide spread criticisms of the pro-life movement all about religion?

                  1. 1. Derp. Correct.

                    2. The criticism are about women having a right to choose and not the state…and also not to shoot people.
                    You don’t think the left pushes back against secular abortion opponents as hard as religious ones?

                    1. You don’t think the left pushes back against secular abortion opponents as hard as religious ones?

                      I’m not sure they acknowledge the existence of the former.

                  2. The biggest criticism of pro-lifers is that they’re moral busy-bodies trying to insert themselves into other people’s medical decisions.

                    That’s not about religion.

                  3. “1. this statement is backwards. The left are the ones who support abortion.”

                    There are very few people who support abortion. Insisting on labeling one’s political opponents inaccurately achieves nothing.

                    ” why are the most wide spread criticisms of the pro-life movement all about religion?”

                    Because of selection bias?

              2. “Two US senators including the likely next president of the US think that membership in the Knights of Columbus makes you unfit to be a judge.”

                Egads!

                “The internet is filled with Sky Fairy and magic man in the sky comments about believers.”

                The Internet is filled with everything. Mostly porn, but some other stuff, too.

                “The left hates believers, especially Christian believers who don’t favor abortion.”

                The left is made of mostly believers, including Christian believers who don’t favor abortion.

                “The evidence is all around you.”

                But not, apparently, anywhere near you.

  11. “Breyer had taken a similar view 20 years ago”

    You can’t get 10 Dem votes in Congress for a Religious Freedom Act now. Look at the firestorm from the left when Indiana passed one. DISCRIMINATION !!!!!! BIGOTS!!!!!!

    The left and the Democratic Party more generally is hostile to the Christian religion now. Dem senators hate the Knights of Columbus now for goodness sake.

    Breyer follows Dem dogma. No way would he reverse Smith

    1. I mean, given the current applications, it’s hard to call this dogmatic versus changing one’s mind based on changing facts.

      This ain’t about disfavored minorities being needlessly denied ceremonial peyote. It’s about creating loopholes to swallow laws.

      Do you not see the parallels between religious rights as currently discussed and the arguments about state’s rights used against the Civil Rights Acts?
      Or do you see them as the same, but also both good?

      1. “This ain’t about disfavored minorities being needlessly denied ceremonial peyote.”

        Right, when it was sticking it to the majority by elevating strange cults and practices, the left was all for freedom of religion. Not true anymore.

        At best they favor freedom of worship where you can worship you Sky Fairy on Sunday but don’t you dare try to live your life that way bigot.

        [“states rights” = religious freedom] is just another way of saying “believers = bigots”.

        1. “when it was sticking it to the majority by elevating strange cults and practices, the left was all for freedom of religion.”

          How, exactly, does some dude taking peyote “stick it” to you, or anyone else?

          EVERY religion has stuff that makes sense to insiders, but is just wacky to outsiders. So if we’re rejecting religions because they have something wacky…

        2. BfO – not sure if you recognize that you just clearly stated the problem – and why you’re wrong.

          You mentioned “elevating” certain groups, and that is correct and a good thing too.

          Expanding equal protection for minority groups is ALWAYS a good (and constitutional) thing.

          What Indiana and the people who flipped the purpose of RFRA want to do is RESTRICT equal rights, and that’s why it’s not going to work – and why you’re wrong.

          1. Conservative fundamentalist Christians are a minority. Not a favored pet minority of the left though.

            Muslims would have benefited from the Indiana law too.

            1. “Conservative fundamentalist Christians are a minority.”

              Depends on where you happen to be standing at the time.

            2. Conservative fundamentalist Christians are a minority, but though looking at the Supreme Court and Congress and generally the top 0.1% I dunno if you can argue disfavored.

              Add in that you have a partisan affiliation right there in the subset you’ve carved out, and suddenly claiming religious freedom looks a lot more like ideological special pleading.

              1. There are no “Conservative fundamentalist Christians” on the Supreme Court.

                Only one non-Catholic Christian at all. He is an Episcopalian w

                “top 0.1%”

                Man, you think the top 0.1% like fundamentalists? Weird.

                1. Yeah, there are certainly no kooky fundamentalist billionaires in the US!

                  Are you arguing that being Catholic means you can’t be fundamentalist conservative? Because I have some counterexamples to that!
                  If you meant Evangelical you should say that, but I have bad news about how those folks are doing when it comes to positions of power.

                  When do you think they’ll let conservative Christians (o hey I just realized your switch from Christian to conservative fundamentalist Christian!) serve in the military?

                  1. “Yeah, there are certainly no kooky fundamentalist billionaires in the US!”

                    Name two.

                    [The “kooky” is quite a revealing slip.]

                    “Are you arguing that being Catholic means you can’t be fundamentalist conservative? Because I have some counterexamples to that!”

                    Bet you don’t. No actual Catholic is a “fundamentalist” Christian. A Pope with binding authority is the antithesis of fundamentalism.

                    1. DeVos and Pope spring to mind.

                      What would you say about the Catholics that reject Vatican II? That sounds fundamentalist to me!

                    2. “DeVos and Pope spring to mind.”

                      I don’t know who “Pope” is but I can find little indication that the Devos family is fundamentalist. Apparently the Education Secretary attended a school without dances so it could be fundamentalist but she belongs to an evangelical church.

                      “What would you say about the Catholics that reject Vatican II?”

                      That they are no longer Catholic.

                    3. Art Pope. He bought North Carolina, and he’s kind of a big deal.

                      You’re getting very No True Scottsmanish with your increasingly narrow definitions of Christian. Evangelical and fundamentalist are not antithetical by a long shot.

                      Sedevacantists would disagree with you about not being Catholics. (Lots of those on the right…or at least lots of those are on the right.). Faith wants bright lines, but in this world human faith is not great at providing them. But that’s getting far afield.

                    4. “Faith wants bright lines, but in this world human faith is not great at providing them. But that’s getting far afield.”

                      The thing about Christianity is that it comes in multiple different flavors, and several of the different flavors actively insist that people who prefer different flavors are Wrong and Evil and Not Christians.

                      To me, the flavor that seems least based on the teaching of Jesus are the Prosperity Gospel televangelists, but it’s not for me to decide… Judgment comes later, and it’s wrong to take prospective glee in the shadenfruede of imagining what’s going to happen when they get in front of Jesus and he tells them “you thought I said WHAT???”

                      Back in the 19th-century, the debate over slavery was largely between Christians who opposed slavery on one side, arguing against Christians who were in favor of slavery on the other side, each throwing bits of Scripture at each other to “prove” they had God on their side. (Spoiler alert: The Union had the better artillery, but not by much.)

    2. “Look at the firestorm from the left when Indiana passed one. DISCRIMINATION !!!!!! BIGOTS!!!!!!”

      Hint: Look at what the proponents what the law to do. If it’s to get out of having to obey anti-discrimination laws…

  12. The main problem with exempting individuals from generally-applicable laws because of their religious beliefs is that it is impossible to tell what someone’s actual religious beliefs are. “Sorry, officer, but God WANTED me to go 75 in that school zone, so you can’t write me a ticket.”

    If I invent my own religion, and the Holy Scripture of my new invented religion state that the way to find salvation is to have sexual relations with as many 13-year-old girls as possible, and their lack of consent to such relations is just a manifestation of Satan trying to block my salvation, do I get my exemption from generally-applicable laws which would otherwise have relevance?

    Are you going to discriminate against me (and new religions in general) and say that “religious belief” that gets an exemption has to be based on a religion that already existed at the time of passage? Fine. Anyone familiar with the religious beliefs of the pre-Columbian Aztecs? Heck, I can work with just stuff from the Bible… Jesus upset the tables of the money-changers on the Temple steps, and that’s why I take the money from the banks by threatening them with guns and bombs.

    1. The way courts generally dealt with this before Smith (and even today under RFRA) is to assume in most cases that your religious beliefs are sincere, and then to proceed to the question of whether the government has a compelling interest to override your beliefs, and whether the way it proposes to do so is the narrowest way possible.

      That works for most of the outlandish cases you can think of. You claim your religion requires human sacrifice? Well we won’t question your belief, but the government has a compelling interest in preserving human life and therefore enforcing the murder statute against you.

      Same applies to your examples (speeding in a school zone; sexual relations with minors).

      1. You’re making the mistake of working from reality.

        Try again, starting with the assumption that Christians are oppressed in the United States, and they need to be released from all that hateful government rules that hopelessly infringe their right to oppress other people, the way Jesus intended.

        I bet you get different results.

        1. What about the Native American Church and their peyote? They weren’t Christian, but the Supreme Court said they could be put in prison for using their own sacraments.

          The bearded Muslim prisoner (with a small enough beard he couldn’t hide razors in it) also wasn’t a Christian, but he won in the Supreme Court. In fact, many Christians defended him.

          1. In fact, due to the enormous power of the Christian Lobby, presumably they can simply ask the legislature for the necessary exemptions, and the solons, fearful of damnation, will do as they’re told. No need to overrule Smith!

            /sarc

          2. “What about the Native American Church and their peyote?”

            What about them?

            “The bearded Muslim prisoner (with a small enough beard he couldn’t hide razors in it) also wasn’t a Christian, but he won in the Supreme Court. In fact, many Christians defended him.”

            Really? The Muslim guy wasn’t a Christian? How about that, what a revelation. Now… so what?

            Was there a point in there? Or you just wanted to agree with me?

            1. Come to think of it, I didn’t quite get the point of your sarcastic remarks about oppressed Christians. If you weren’t trying to suggest they already have majoritarian support on pretty much every issue, then I don’t see the purpose of your remarks.

              1. “I didn’t quite get the point”

                This is not news.

      2. Agreed about how it’s supposed to work, but mostly they’ve been putting the bar for declaring an interest “compelling” amazingly low. That’s my complaint.

        They ought to take seriously the idea that the interest has to be compelling, not merely exist.

        1. Let me guess… the “left” supports “compelling” interests that aren’t, and the Real Americans only support interests that are TOTALLY compelling.

          1. Nah, the right is guilty of this sort of thing, too. It’s just that, the right generally being more friendly to religion and conventional morality, tends not to try to enforce whims that run contrary to them. They set out to enforce whims, sure, but not THAT sort of whim. More whims that reinforce conventional morality.

            While the left’s whims are more about replacing that conventional morality with obedience to the left.

            1. “the right generally being more friendly to religion and conventional morality, tends not to try to enforce whims that run contrary to them.”

              You suffer from selection bias if you actually believe this.

              “While the left’s whims are more about replacing that conventional morality with obedience to the left.”

              The right’s whims are no less about obedience to the right.

      3. > assume in most cases that your religious beliefs are sincere

        That might be a little strong…. it’s more that sincerity is normally not at issue – the people who are willing to risk prosecution are normally extremely sincere.

        OTOH, if it looks like something made up post-arrest, the courts will probably require some proof.

    2. The problem here is the failure to distinguish between two different categories of “generally applicable” laws.

      On the one hand you’ve got generally applicable laws that embody widely shared moral perceptions about what is obligatory or should be prohibited. Laws mandating that parents support minor children. Laws prohibiting rape and murder. Basically, your malum in se (“Wrong in itself”) laws.

      On the other hand, you’ve got generally applicable laws that embody nothing more than the legislature’s perception of what would be convenient, or even just legislative whims. Your malum prohibitum (“Wrong because prohibited.”) laws.

      Generally, you’re not going to hand out an exception to laws against murder to a revival of the Kali cult. Murder has been pretty much universally illegal from the beginning of law itself, because nobody wants to be murdered.

      OTOH, you are going to hand out an exception to Prohibition for communion wine, for two reasons.

      First, basically nobody finds the sacramental use of wine morally offensive.

      And second, because religion is one of the few things that will motivate significant numbers of people to put themselves in opposition to the state, and the state doesn’t want the hassle of crushing religions.

      Now, that consideration goes away when crushing the religion IS the legislature’s motivation…

      1. “Generally, you’re not going to hand out an exception to laws against murder to a revival of the Kali cult.”

        “Now, that consideration goes away when crushing the religion IS the legislature’s motivation…”

        Arbitrary.

    3. The old rule would deal with your parade of horribles by saying that preventing certain behavior, even by the religious, is a compelling interest which cannot be more narrowly achieved than by punishing the offender.

      That deals with your Kali sacrifices, your statutory rape because God said so, your Islamist suicide bombing, and so on and so forth.

      The compelling interest/least restrictive means test would make courts less sympathetic to those who want to pluck Amish children off the farm where they’re learing valuable life skills, and warehouse them in a school building.

      Or to those who want compulsory gay cakes.

      1. Ah. So you missed the point entirely. OK.

        1. If lots of people are missing your point entirely, maybe it’s because your point was stupid and badly written.

          1. Or maybe not, and the people who choose to respond based on the first couple of sentences are the ones who deserve your scorn.

            If Eddy is “lots of people”, you need to work on counting before you get up to editorial criticism.

            1. My response was also directed at your comments about Aztec human sacrifices and bombing banks. Those comments weren’t in the first couple sentences.

              1. Your name appears in the second sentence, not the first, Eddy.

                1. Are you going to pretend that your meaning here is obvious and easily guessed?

  13. Five Catholics, three Jews and one Episcopalian sit at a bar…

    If the liberuhls had actually succeeded in removing God from the classroom, maybe we wouldn’t have these tedious debates about whether secular society should humor the superstitious to the detriment of all.

    1. “Five Catholics, three Jews and one Episcopalian sit at a bar…”

      The Jews don’t drink, but the Catholics promise to make up for whatever the Jews won’t drink.

      The Episcopalian orders “anything with a pink umbrella in it.”

      1. “The Jews don’t drink”

        Wrong. We even have a holiday where you are supposed to get drunk.

        1. It’s the old joke about Passover and Purim being the same because Uncle Leo passes out on the floor in either case.

    2. “If the liberuhls had actually succeeded in removing God from the classroom, maybe we wouldn’t have these tedious debates about whether secular society should humor the superstitious to the detriment of all.”

      I always wondered why the religious folk got so upset over this. I mean, if the darn secular liberals COULD push God out of the classroom, that’s a sign that they SHOULD. If God didn’t want to get pushed out, surely he could just light up some of the shrubbery and have it say “I think I’ll be staying”, at which point I suspect a great deal of the secularists would shut up. But God, in His infinite wisdom, didn’t even put up a fight.

      Note: I’m always suspicious of people who want to tell me what God wants, and it looks a lot like God wants exactly the same thing as what the person purporting to speak for him wants.

  14. “What’s your position on genital mutilation” Almost all Americans would be strongly against it, including those of my own origin Jewish. Now ask those of my clan, “So, what’s your position on a state law that would make circumcision a crime?” When Jews realize that the later is technically included in the former, there may be some cognitive disinance, or a claim that the two are different, in that genital mutilation, usually referring only to girls, destroys sexual pleasure. Well, there are variations in this practice, some as innocuous as male circumcision.

    Yet some vaginal cutting does eliminate orgasm, which is sort of the idea base on their particular sect. Shall a given state allow this to be done to infants under their jurisdiction?

    My take is leave it to the states, as defined in our Constitution. If a law means no Jews continue to live in Tennessee, or no Hutis (or a real sect) would live in New York State, then so be it. This is where the beauty of our limited federal government deserves to be revived. When something is inherently a value call, let the various states attract such people, as fit their laws.

    Of course there are limits, but it’s not a bad principle to keep in mind. As far as the Federal Government, In a dissent to the original RFRA act, Justice John Paul Stevens stated because it discriminates against atheists, a non-believing religion, the law is unconstitutional.

    He was dead on right.

    AlRodbell@gmail.com

    1. I would take the position that circumcision essentially grandfathers comparably mild forms of “genital mutilation” as a constitutionally protected act. Horror towards it as primitive, barbaric, etc. is no different from being horrified by animal sacrifices.

      I completely agree that there is no basis for protecting male circumcision while prohibiting a comparable female form. You can’t protect the religions you like and be free to ban religions you don’t. There has to be consistency across religions and religious practices. And for that reason, I think the constitution protects the female form, at least so long as the long-term effects are no greater than those of the male form.

      1. ” I think the constitution protects the female form, at least so long as the long-term effects are no greater than those of the male form.”

        I think the Constitution protects people who want to alter their own genitals, and not people who want to alter other people’s genitals.

    2. So you want to un-incorporate the First Amendment.

      Interesting.

  15. My difficulty with Smith is textual. The First Amendment protects the “free exercise” of religion. Exercise means practice. It means something more than just speech, status, or running organizations. Under Smith, Free Exercise is pretty much just speech protections and a protection from status-based discrimination. It doesn’t really give meaning to the word “exercise.”

    I understand that defining exercise can be hard, and balancing against government interests is hard, and the world seems to be filling with quack “religions” invented for the purpose of getting around laws. Nonetheless, the that the Court’s responsibility to define and protect the “exercise” of religion is difficult, even really really hard, isn’t a justification for simply abdicating that responsibility completely in order to make one’s job easier.

  16. But now that the highest-profile religious exemption requests seem to come from religious conservatives (see, e.g., Hobby Lobby, or the Free Exercise Clause arguments in Masterpiece Cakeshop), they are supported more by conservatives and less by liberals.

    To understand that bit, note that the term “religious conservatives,” is fraught with ambiguity. Are we prioritizing religion, or conservatism? I suggest that Hobby Lobby was more about the latter, and less about the former. Now in the age of movement conservatism, with plutocratic corporatism wielding a vast network of think tanks and lobbying machines, bystanders would do well to inquire which among various values are the real motivators. Religion is too often being exploited legally, for use as a front to enable a broader exemption of conservative interests?and corporate interests particularly?from generally applicable laws.

    The way to keep court-pronounced “religious” doctrines from too broadly eroding citizens rights to self-government is to go back to defining “exercise of religion” as a matter of religious practice, while leaving other ostensibly religious issues to be decided on the basis of generally applicable laws. Religious citizens, along with the others, must concede that they live in a nation ruled by a secular government, and agree in their day-to-day lives to abide within secular restrictions just as others must do.

    1. “Religious citizens, along with the others, must concede that they live in a nation ruled by a secular government, and agree in their day-to-day lives to abide within secular restrictions just as others must do.”

      So, military conscription for Quakers?

      1. Military conscription for nobody.

        1. And if he converts to pacifist Quakerism while in the armed forces and asks for a discharge? Current regulations allow him be discharged if he can prove that he’s become a religious pacifist. An accommodation to superstition which should of course be abrogated as soon as possible!

          1. If he has become a religious pacifist, maybe the guys standing near him don’t WANT to depend on him to shoot back at the sniper shooting at him. And if he happens to be a missile officer in a hole in North Dakota…

            Avowed pacifists are not good soldiers. We also tend to discharge the infantry who get their legs blown off, equality for the disabled be damned.

            1. Very nice, but the existing regulations give CO discharges to religious pacifists as such, contrary to your principles, etc. If they’re not religious pacifists, they will tend to get a court martial or dishonorable discharge if they choose not to fight. So you see…well, you either get the point or you don’t, and you either engage with the point I made or you don’t.

    2. But what is “religious practice” as distinct from “other religious issues?” Does “religious practice” exclude things like opposition to contraception/abortion of the sort the Hobby Lobby people have, or gay marriage like the Masterpiece Cakeshop people? Does it exclude a doctor who doesn’t want to personally perform an abortion? Issue a prescription for contraceptives? Pay for it for his employees? Include it in their insurance even if at no cost to him?

      There may be a distinction to be made here. But these sorts of broad phrases don’t really communicate what it is or why.

    3. the term “religious conservatives,” is fraught with ambiguity. Are we prioritizing religion, or conservatism? I suggest that Hobby Lobby was more about the latter, and less about the former.

      Well, yes and no. Mr Phillips objection was obviously religious. Those taking his side in the political and legal battles were mostly conservatives, opposed to the folk persecuting Mr Phillips. Most of the current skirmishes in the culture wars are initiated as a set up by a lefty provocateur – ie many streets are crossed and staircases climbed to get yourself into a position to be outraged by some Christian behaving in a Christian-like fashion, when if you actually wanted to get yourself a cake or some flowers you could do so with a fiftieth of the effort required to generate the necessary legal oompah to bankrupt a Christian. Hence perceiving that the scuffle has been started by their enemies attemting to cosh an innocent passer by, conservatives pile in to oppose the lefties, whether those conservatives happen to be religious or not.

      1. Now in the age of movement conservatism, with plutocratic corporatism wielding a vast network of think tanks and lobbying machines

        Yo Rumplestiltskin ! You fell asleep in the fifties. These days plutocratic corporatism supports the Dems. The right has its think tanks, sure, athough not so many as the lefties do. Ditto lobbying machines. And the lefties have loads of off balance sheet think tanks (universities) and lobbying machines (newspapers and TV stations.)

        Religion is too often being exploited legally, for use as a front to enable a broader exemption of conservative interests?and corporate interests particularly?from generally applicable laws.

        No, antidiscrimination laws are being exploited to impose a secular religion on its competitors. The competitors occasionally resist.

    4. The way to keep court-pronounced “religious” doctrines from too broadly eroding citizens rights to self-government is to go back to defining “exercise of religion” as a matter of religious practice, while leaving other ostensibly religious issues to be decided on the basis of generally applicable laws.

      Although I am not religious myself, I’m startled by the sheer blindness of this remark. For those who have a religion, it’s the central feature of their existence. It’s not something that they do on Sundays between 10am and noon, and it then gets put back in the box for another week.

  17. Start working at home with Google. It’s the most-financially rewarding I’ve ever done. On tuesday I got a gorgeous BMW after having earned $8699 this last month. I actually started five months/ago and practically straight away was bringin in at least $96, per-hour. visit this site right here… http://www.2citypays.com

  18. My religion requires me to drive at least twenty miles above the speed limit, not pay income tax, and have sex with fourteen year olds. I look forward to Justice Kavanaugh’s opinion upholding my right to do so.

    1. The 1st Amendment should protect the free exercise of religion with respect to Judeo-Christian traditions. That’s what the founders intended to protect. Not Islam, not Wicca, not Buddhism, not Hinduism, or any third world religion.

      1. So… stoning for non-believers, but not beheading?

        1. Christianity was at least 1000 years beyond that at the time of the founding.

  19. I read Scalia’s A Matter of Interpretation years before I went to law school. I am as big an admirer of his as anyone and tend to agree with his opinions for the most part. But I have always felt he was dead wrong in Employment Division v. Smith.

    I have always felt that a law that infringes on free speech, free exercise (or any constitutional right, really) is unconstitutional unless the government can show a damned good reason for it (a “compelling interest” as the courts say,)

    I never thought of that as a “conservative” or “liberal” view per se, though the general change in who backs religious accommodation is striking. I remember President Clinton signing the Religious Freedom Restoration Act, a law specifically written to overrule Employment Division v. Smith. I suspect the Democrats never envisioned that Christians would be the ones needing the accommodations in the future.

    If the government can fine you for refusing to violate your religious principles, then why couldn’t it jail you for it?

Please to post comments

Comments are closed.