Religious liberty

My Argument for Preserving Employment Division v. Smith

I'd love to hear your thoughts about this draft brief.

|The Volokh Conspiracy |

In Fulton v. City of Philadelphia, the Court is considering whether to reverse Employment Division v. Smith, the case holding that (generally speaking) religious objectors aren't constitutionally entitled to exemptions from generally applicable laws. I have long been one of the few law professors who (1) thinks Smith is right, but (2) thinks that jurisdiction-by-jurisdiction Religious Freedom Restoration Acts are generally a good idea. I wrote an article about that in 1999 (A Common-Law Model for Religious Exemptions), and now an amicus brief in Fulton (with the help of my students Robert Bowen, Delaney Gold-Diamond, and Caleb Mathena).

The amicus brief is on my own behalf, so there are no reasons for me to keep it confidential before I file it (it's due next Wednesday, June 3, but I'd like to file it a couple of days early), and every reason not to: If there are any errors, small, medium, or large, in my thinking on this, I would love to have a chance to fix them. So if any of you are interested in having a look and giving me your suggestions, I'd much appreciate it. (Note that the brief has not yet been cite-checked or fully proofread, though I'd be glad to know of proofreading glitches as well as about more serious ones.) I include the Summary of Argument below, but you can read the whole brief here.

[1.] Justice Scalia was right: Courts should not be constantly "in the business of determining whether the 'severe impact' of various laws on religious practice" suffices to justify a constitutionally mandated exemption from a generally applicable law. Employment Division v. Smith, 494 U.S. 872, 889 n.5 (1990). "[I]t is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice." Id.

Indeed, overruling Smith would revive all the flaws of a broad substantive due process regime: It would require courts to routinely second-guess legislative judgments about the normative foundations for a wide range of laws, and about the laws' practical necessity.

For instance, should people have a right to assisted suicide? This Court in Washington v. Glucksberg, 521 U.S. 702 (1997), refused to recognize such a right under substantive due process, and upheld an assisted suicide ban under the rational basis test. But if Smith were overruled, any person who claims a religious obligation to assist in suicide would trigger the very sort of strict scrutiny inquiry that Glucksberg forecloses.

Likewise, this Court has rejected heightened scrutiny of economic regulations, such as minimum wage laws. But if Smith were overruled, a person who claims a religious obligation to hire people but for less than minimum wage would be entitled to an exemption, unless the regulation passes strict scrutiny. And the list could go on.

Of course, it is appealing to protect religiously motivated action (or inaction) that does not really hurt anyone. But what constitutes "hurting anyone" is a hotly contested issue, as this very case shows. It is contested normatively. (Should refusing to deal with a same-sex couple qualify as hurting them? Is paying people a supposedly "exploitative" wage, even with their consent, hurting them?) And it is contested practically. (Would allowing assisted suicide end up pressuring people into choosing death even if they would rather not?) This Court's rejection of a general right to liberty under the rubric of substantive due process wisely recognizes that these questions should ultimately be left to the political process.

[2.] To be sure, normative and pragmatic judgments about which actions hurt others are familiar to courts. Much of the common law of tort, contract, and property reflects such judgments.

But such decisions are only tentative, because they can be overruled by legislatures. Judges have the first word on these matters, but not the last. That makes common-law decisionmaking legitimate even when aggressive use of substantive due process would not be.

Indeed, decisionmaking under RFRAs is in this respect similar to such common-law decisionmaking. Because RFRAs (state or federal) are mere statutes, they give judges authority to create exceptions but subject to possible revision by legislatures.

Thus, for instance, this Court concluded in Gonzales v. O Centro Espírita Beneficente União do Vegetal that, in effect, hoasca was not so harmful as to justify denying an exemption request, 546 U.S. 418 (2006)—but if Congress had disagreed, it could have exempted the hoasca ban from RFRA, and thus had the last word on the subject. But if Smith were overruled, this Court's estimate of harm would have been final, unrevisable without an Article V constitutional amendment.

[3.] Some substantive constitutional rights, of course, do require courts to evaluate the normative and pragmatic justification for restrictions on those rights, and the test in those cases often is strict scrutiny. But Smith was correct in concluding that claims of those rights are quite different from claims of religious exemptions, 494 U.S. at 885-86. Those rights require second-guessing legislative judgments only for specific, well-defined zones of regulation (e.g., content-based speech restrictions), where such judicial decisionmaking is especially justified. Overruling Smith would require courts to consider overriding legislative decisions as to a vast range of generally applicable laws.

[4.] Nor should this Court limit Smith to laws that lack secular exceptions. A law can be generally applicable if it does not single out religious behavior for special burdens, even if it does include exceptions for certain kinds of secular behavior. Indeed, a vast range of important laws have many exceptions—trespass law, the duty to testify, antidiscrimination law, copyright law, contract law, and many others.

[5.] This brief takes no position on whether statements of government officials and the shifting legal basis for the government's actions may indicate that the City of Philadelphia singled out Catholic Social Services for different treatment on the basis of religion. Pet. Br. __. The brief argues only that this Court should reaffirm the Smith principle that, absent such intentional discrimination, the Free Exercise Clause does not provide a presumptive constitutional right to religious exemptions from government actions.

[Footnote:] This brief also does not discuss the original meaning of the Free Exercise Clause, a matter treated in Justice Scalia's and Justice O'Connor's opinions in City of Boerne v. Flores, 521 U.S. 507 (1997), and likely in other forthcoming amicus briefs in this case.

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  1. Your support for the continued vitality of Smith, in particular, and your championing of the political process, in general, as the only legitimate way to delineate the contours of liberty is at odds with even your stated lukewarm “often libertarian” libertarianism.

    Fidelity to footnote four can hardly be harmonized with even tepid libertarianism. There is no room for judicial adherence to progressivism, in general, and progressive legislation, in particular, for libertarians, even those who describe themselves as “often libertarian.”

    1. I don’t think it’s a principle of libertarianism that religious people get special privileges to break the laws that the rest of us have to follow.

      1. Non-sequitur.

      2. But there is this thing called “the rule of law”, that libertarians ordinarily value. And sometimes the law actually, expressly, hands out special privileges.

        In those cases, the libertarian looks at the privilege, and asks whether it’s a bad privilege, (You get to steal from other people, say.) or a good privilege. (The government stays out of your face in a case where libertarianism says it SHOULD stay out of your face.)

        And in the latter case, when the government says, “Well, we’ve got this law against using Peyote, but we’ll make an exception for religious uses.”, the libertarian reaction isn’t to demand that the exception be removed, and the religious uses persecuted.

        It’s to extend the exception to everyone, and let everyone be free.

        This is the peculiar thing in Ilya’s religious liberty writing, from a libertarian perspective. He never seems to take the “well, maybe the special privilege should just be extended to everybody.” fork.

        1. If the issue is how “good” the privilege is, discrimination against gays and lesbians because of some vague words in a religious text is pretty bad.

          1. No, from a libertarian standpoint, that’s just bog ordinary freedom of association.

            1. Only if you accept that libertarianism is defined by opposition to civil rights laws.

              Plenty of libertarians don’t accept that.

              1. No, only if you accept that libertarianism is defined by support for liberty. Some civil rights laws advance liberty, some reduce it.

                And, yes, some people who call themselves libertarians have made an exception to libertarian principles for laws that claim to be enforcing civil rights.

                1. It isn’t an exception to libertarian principles, anymore than antitrust laws are an exception to libertarian principles.

                  The Jim Crow South wasn’t libertarian- it was anti-libertarian. If the KKK runs your town, or the Jaybird Democrats run your presidential primaries (see Terry v. Adams), you aren’t libertarian.

                  The reason lots of libertarians recognize what you call an “exception” for civil rights laws is that societies that consolidate power to dump on unpopular minorities are not libertarian.

                  1. The Jim Crow South wasn’t libertarian, it compelled discrimination.

                    1. Not everywhere, Brett. Surely you know de facto as well as de jure discrimination was rampant.

          2. Called out on the non sequitur, you immediately begin building straw men. Do you ever argue in good faith?

            1. Weird, should have been a response to Dilan Esper.

              1. No, it shouldn’t be a response to Esper. Esper and I disagree all the time. Doesn’t mean he argues in bad faith. On that axis, he is very comfortably above the VC median.

      3. Even worse, from my IANAL point of view, is that throwing in all these case-by-case exemptions make it much harder for ordinary people to know what the law means, and when laws are vague, how can they by followed? For the same reason, I despise split appeals decisions; if learned judges disagree on what a law means, how can ordinary people be expected to understand and obey them?

        I don’t agree with government-mandated religious exemptions, but if they are going to exist, they at least ought to be clear and knowable without having to spend zillions on lawyers and wait years for a court case to conclude.

      4. “I don’t think it’s a principle of libertarianism that religious people get special privileges to break the laws that the rest of us have to follow.”

        Nor that one is able to impose his religious values on another — and that is exactly what the gay couples are attempting to do.

        Yes, Gay is a religion too…

        1. Yes, Gay is a religion too…

          Hehe.

          1. Now that I know that gay is a religion, I’m applying for tax exempt status. Back in the days when they said it was a sickness I tried applying for disability benefits; maybe I’ll have better luck this time around.

            1. If being gay were a religion (not that I think the analogy makes much sense), you wouldn’t have tax-exempt status any more than you would for being Catholic — but groups that spread pro-gay-rights ideas would have tax-exempt status, pretty much as they do now. (The rules governing religious organizations as nonprofits and other nonprofits are slightly different, and tend to be slightly better for religious groups, but not by much.)

              1. If being gay were a religion, the churches would be FABULOUS.

              2. However, there are a number of religious groups that have been given status as a church although they are not churches which means no filing requirement. Focus on the Family, Liberty Counsel, Samaritan’s Purse and a number of others.

              3. Eugene, this may be splitting hairs, but Dr. Ed’s original comment was not that “being” gay is a religion. It’s that “gay” is a religion. That’s enough of a difference that I think it gets me tax exempt status. And if not, a bit of creative filing would fill in the gap.

    2. I’m inclined to oppose many laws on libertarian grounds: minimum wage laws, prostitution laws, marijuana laws, etc. But I don’t think that the Constitution forbids those laws (except for a few specifically identified zones of protection), even I think the laws are foolish or immoral. What is right, and what is constitutional, are usually quite different questions.

      1. Isn’t there already an exemption to the minimum wage laws?
        I’m thinking of nuns and how much more expensive it is for the Catholic schools to hire lay teachers, QED….

        1. Dr. Ed: What do you mean, QED? What does it supposedly demonstrate?

        2. No, Mr. Ed, I don’t believe so. In the case of nuns, they do not receive the money to their own accounts, but their order receives payment — calculated at minimum wage or in some cases more — and importantly, social security is withheld. When the sisters reach retirement age, they or their order collect social security.

          1. Plus retired nuns are housed by their order and provided medical care until death.

      2. I think the Constitution forbids quite a few of them at the federal level.

  2. Weird. Your arguments in section 1 all seem like compelling reasons to overturn. Maybe a full rewrite is in order.

  3. I’m kind of puzzled: What exactly does the free exercise clause mean, then? Just that government can’t specifically target religion?

    It strikes me that, effectively, you’ve read the free exercise clause out of the 1st amendment, or at least seem determined to minimize its impact on what government can do.

    1. 1. Government can’t intentionally burden religion.

      2. Government lacks the police power to ban specifically religious activities (so, for instance, a regulation that effectively closes only Kosher and Hallal slaughterhouses is unconstitutional).

      That, to me, seems entirely reasonable.

      1. But that’s not what it says. There’s nothing there about whether the burden is intentional, or selective. It just prohibits the burdening itself.

        1. Read Scalia’s opinion. That is all free exercise CAN mean without severe consequences.

          1. Yeah, if the Constitution says one thing, and a judge says another thing, I go with the Constitution. If “severe consequences” are mandated by the Constitution, so be it.

            1. The text does not proscribe prohibitions on the exercise of religion, but rather the free exercise of religion. Similarly, the text does not proscribe the abridgment of speech, but rather the freedom of speech. This latter distinction permits regulations on libel, perjury and other speech. Perhaps the former distinction permits prohibitions on exercises of religion that violate generally-applicable laws.

              1. Absent some proof that “free exercise of religion” was a term of art at the time the 1st amendment was written, I don’t see how this gets you anywhere.

                1. Assuming for the sake of argument that you are correct and “free exercise” was not a term of art, wouldn’t the same also apply to “freedom of speech” not being a term of art. And yet, we have no problems limiting certain speech.

                  Thus, the counter argument is “free exercise” and “freedom speech” do not have to be literally terms of art to be construed as limiting what the right is. Instead, you look to contemporary evidence for what limits existed <a href="https://reason.com/2020/05/26/the-debate-about-the-original-meaning-of-the-free-exercise-clause/"as Scalia did.

                  1. I really don’t see how one phrase not being a term of art implies that another also isn’t. Wouldn’t that have to be individually determined? As contingent historical facts, after all.

                    1. You implied the burden of proof goes to those who argue a phrase was a term of art. Is there any evidence that “freedom of speech” was a term of art?

            2. If “severe consequences” are mandated by the Constitution, so be it.

              This is why you need to go to law school, Brett. It sums it up in one sentence.

              We construe statutes and constitutional provisions reasonably, on the premise that their authors were not idiots and did not intend bad results. That isn’t “rewriting” the statutes- it’s bog standard interpretation, the same way your contracts are given a reasonable construction.

              So if two constructions are possible, and one makes the clause ridiculous and leads to tons of bad results, and the other makes the clause make sense and not lead to bad results, only a sociopath would choose the former and congratulate himself for “upholding the law”.

              1. “We construe statutes and constitutional provisions reasonably, on the premise that their authors were not idiots and did not intend bad results.”

                Yeah, the problem with doing that is that people actually disagree about what results are bad. Even where we may agree that a particular consequence of an interpretation is “bad”, interpretations seldom only have “bad” implications, and we may disagree about how the “good” and “bad” consequences should be weighted.

                You’re privileging lawyers’ idea of “good” and “bad”, which may systematically differ from the general population. This is not a shocking thing to find lawyers doing, but I see no reason why non-lawyers should be expected to agree that it’s legitimate to be doing it.

                1. One could come to the same conclusion with the Mass Equal Rights Amendment — except that Margaret Marshall took the meaning that made it ridiculous and gave us gay marriage.

                2. One bog difference — Smith was a private entity, while Philadelphia is the state.

            3. In that case, you’ll acknowledge that the First Church of Murdering People Named “Brett” has certain religious rituals that must be performed, and that it’d be wrong for the state to interfere.

              1. You’d lose Justice Kavanaugh on that one, I think ….

                1. It may be 20 years, but I doubt Kavanaugh will forget what happened to him.

                  https://www.youtube.com/watch?v=VRJecfRxbr8

                  1. Either I’m missing your joke, or you’re missing mine (admittedly, a very small joke).

        2. In fact there is nothing in there about “burden” at all. The only textual limit is that Congress may not prohibit the free exercise of religion. It prohibits prohibitions, not mere burdens.

    2. Brett, here’s the practical problem: There are probably very few laws that someone, somewhere, doesn’t have a conscience objection to. If the free exercise clause is given the expansive meaning you would give it, then the entire system basically collapses because any time someone doesn’t want to obey any given law, they simply claim it’s against their religion, and challenge the government to prove they’re lying. The religious nuts who raised me took the position that the government has only those powers specifically granted to it by the Bible, so under their reading not even traffic laws are safe. Ever hear of the Phineas Priesthood? They found an interpretation of the Bible that allowed them to rob banks.

      So if any and all religious exercise really is protected, then I’d like to hear how you draw a line so that we don’t devolve into total anarchy.

      1. “hen the entire system basically collapses because any time someone doesn’t want to obey any given law, they simply claim it’s against their religion, ”

        And yet, we managed a few hundred years without it seeming to be a problem

        1. Really, Armchair?

          Okay then! Why don’t you cite the few hundred years of precedent of religious exemptions to generally applicable laws obtained via court decision?

          We can wait.

          1. See Quakers, conscription, religious exemption to…

            1. Is that your best example? And exactly what draft law and what exemption are you referring to? If you mean the Civil War draft (AFAIK, this was the first national draft in the USA), Quakers enjoyed the same right as everyone else with enough money, to buy an exemption by hiring a substitute to serve in their place. I suppose Quakers would be willing to part with a larger percentage of their wealth, and to raise subscriptions to buy exemptions for impoverished members of their congregations, but they received no special treatment from the government.

              In the 20th century, Quakers and other members of recognized pacifist religions were exempt from military service, but were required to serve in other ways, e.g. as combat medics – a job often more difficult and dangerous than rifleman. (Not that this was always the case – as a Jehovah’s Witness my Dad was trained as a veterinarian’s assistant during the Korean War and was assigned as a meat inspector for packing plants supplying the Army, and a Mennonite we knew served as an orderly at a state hospital during the Vietnam War. But there were plenty of regular draftees filling equally safe, and far less disgusting, stateside slots.)

              By the Vietnam era, you could get the same exemption with a deep and sincere non-religious belief in pacifism.

              A more significant example would be the exception to Prohibition for wine served at Mass. But this was a quite limited exemption, and I think it was authorized by Congress rather than invented by a court. No one was getting even slightly tipsy from wine served in accordance with this. (If the priest showed up drunk, either his dipping into the sacramental wine went far beyond the legal limits, or he got his booze from a speak-easy or bootlegger like many of the parishioners.)

              What we do _not_ have is anything like a universal exemption to laws that allegedly conflict with some religion. You can’t claim to be a Branch Davidian, required to follow David Koresh and “marry” and impregnate as many 14-year-old girls as possible, and therefore be exempt from statutory rape laws. But that’s a tiny, very unpopular sect, so next I’ll pick on something more mainstream: Nor can you claim that Jesus wanted the rich to share their wealth, so you are entitled to break into your neighbors’ houses and take your share. (And never mind that there are Congressional Districts that will elect someone who agrees with this…)

      2. Look, my perspective on this is that if it would make any sense, any sense at all, to provide for a religious exemption to a law, you didn’t have enough justification for the law to begin with.

        I start from that presumption of liberty that the courts rejected.

        It makes no sense to start handing out exemptions from laws against murder, regardless of motivation, so the Reformed Cult of Kali doesn’t get a religious exemption.

        It does make sense to have religious exemptions from Prohibition, so you shouldn’t be enforcing Prohibition against anybody.

        I wouldn’t elevate religious motives above others, I’d give everybody the liberty the Constitution gives to religion.

        But, here’s the thing: The Constitution actually DOES single out religion for special treatment. It’s NOT neutral on the subject. We’ve got free exercise of religion, but not free exercise of stamp collecting or model building.

        And, shouldn’t that legally make a difference?

        1. But whether something makes any sense at all is largely in the eye of the beholder.

          If you believe that a blood transfusion will send you straight to hell, even if it will also save your child’s life, then it makes sense *to you* to refuse the blood transfusion. (It might even make sense to me if I accepted the premise that you’re going to hell if you get a blood transfusion.) So whose sensibilities are the standard?

          1. The point is, I’m not evaluating motives. Rights mean motives don’t matter, if somebody is entitled to make a choice, they’re entitled to make it even if I don’t respect the basis they made it on.

            1. If that’s the case, why do we need a free exercise clause at all? Why not just grant exemptions to anyone with a plausible conscience argument against it?

              1. We need a free exercise clause because we are governed.

                And because religion is one of the few things in society that a significant number of people take seriously enough to chose over compliance with the government’s orders. Governments respect religious liberty because, unless they’re going full totalitarian, they have to, or be fighting rebellions all the time.

                1. “respect” isn’t the right word there, Brett.

          2. If you are an adult and sane, no one is denying you the right to refuse a blood transfusion, or any other medical treatment. You can refuse antibiotics and die of an infected hangnail, if that’s your choice – and whether it’s motivated by religion or by pure cussedness does not matter.

            It’s when parents refuse treatment for their children that the issue gets into court. Our legal system gives parents the power to decide most things for minor children, but not everything, and the boundaries are unavoidably fuzzy. So when religious fanatics decide they would prefer their child to die untainted by a transfusion than be saved (in the non-religious sense) by it, a doctor or hospital can go to court to override the parents’ decision.

            This is an imperfect system, and errors can occur both ways. On one hand, knowing that their choice for their children may be overruled will make fanatics reluctant to bring their kid to a doctor at all. If a doctor never examined the kid, there’s no basis to go to court. Given sufficient fanaticism and distrust, this might cause more deaths than court-ordered treatments save. OTOH, I recall cases where doctors – or even just bureaucrats – disagreed over the diagnosis and treatment, and one went to court because the parents chose the other. In England, the NHS gave up on treating a kid, and sued to prevent the parents from seeking treatment in another country. In Boston, IIRC, a hospital staff got a brief look at a sick kid, and somehow thought they knew better how to treat him than the doctors who had been working on his case for years – and won merely because the hospital had better connections in court.

        2. “Look, my perspective on this is that if it would make any sense, any sense at all, to provide for a religious exemption to a law, you didn’t have enough justification for the law to begin with.”

          Really? So because it makes some sense to exempt conscientious objectors from the WW2 draft, that proves we shouldn’t have had a draft and should have lost WW2?

          1. At no point during WW2 did the military lack for volunteers. They went with conscription so they could pick and chose.

            1. They couldn’t pick and choose from among the volunteers?

              1. They could have, they didn’t want to.

            2. The draft started in 1940 — the first PEACETIME draft in US history.

              1. The arms build-up (in the USA) also started in peace time. There were hopes that we could avoid involvement in the mess in Europe and also avoid spending American lives to cut back on Japanese ambitions, but only fools were counting on it. So the Army began replacing the bolt-action 1903 Springfield rifles with the semi-auto M1 Garand in 1936. In 1937, the Japanese refused to extend parts of the post-WWI naval limitations treaties, and a naval arms race began as fast as new ships could be designed; the US ordered 4 new battleships in 1938 (the South Dakota class), and 6 more in 1939-1940 (the Iowa class, larger and faster than any previous American battleship). When Japan sank the US Pacific fleet battle line at Pearl Harbor, the replacements for those old ships were already being built – but all but two of the old battleships were repaired and returned to service. Large numbers of cruisers and destroyers were also on order or delivered by 1940. Both the army and navy air forces had many new models of aircraft in development or starting delivery – e.g., the Brewster Buffalo fighter had just been delivered to the carriers when the Grumman F4F Wildcat began replacing it in 1941, and Vought was ready to start building the much superior F4U Corsair – except poor visibility and bouncy landing gear would restrict it to land bases.

        3. Religion was much more important in 1789 so the Framers found it useful as a preexisting power structure that would provide a Montesquieuian power divider. So just check out how Henry VIII coopted the church to further tyranny or how the French created the Cult of Reason during their revolution or how Stalin replaced religion with his cult of personality. So our robust religious society with strong churches was something the Framers wanted to perpetuate because it divided power and made tyranny less likely.

      3. This can be addressed with sincerity and similar rules to prevent people from simply inventing religions with the features they want. This somewhat favors established religions. But any test that depends on evidence is going to favor people who’ve been around long enough to develop more.

        In addition, Yoder established some basic ground rules for when a religion qualifies: people have to be generally law-abiding and economically self-sufficient, as the Amish were. This means religions with rules that completely prevent people from functioning in society are out.

    3. “It strikes me that, effectively, you’ve read the free exercise clause out of the 1st amendment, or at least seem determined to minimize its impact on what government can do.”

      Yup. It’s not like they send you to a better hell for being forced to comply with laws based on indifference to religion as opposed to animus. Allowing people to practice their religion shouldn’t be a matter of political grace. “You want to wear Yarmulkes in city hall? Let’s talk about it at my fundraiser next week.”

  4. Dear Professor,

    I don’t think I can help with the brief if only because I don’t like the bottom line. But I’ll briefly comment on why I think Smith is wrong – one of Justice Scalia’s worst legacies, in fact.

    “Indeed, overruling Smith would revive all the flaws of a broad substantive due process regime…”

    Dare I ask if you oppose substantive due process all along the line? If not, then why not add robust religious freedom protections to those things protected by substantive due process?

    “It would require courts to routinely second-guess legislative judgments about the normative foundations for a wide range of laws, and about the laws’ practical necessity.”

    I can’t say this bothers me too much. The usual scare scenarios – terrorism, human sacrifice – seem to be paradigmatic examples of compelling govt interest/least restrictive means, so those things are off the table. (And speaking of human sacrifice, I’d classify suicide in that category)

    In cases where the government has less compelling arguments – eg, locking up Rastafarians, breaching the seal of the confessional, etc. – I would *hope* the courts would in many cases come up with a way to side with the religious objector.

    And the unicorn of a generally applicable law seems fairly elusive. Lots of laws have a lot of *secular* exceptions, to the extent that it’s hard to call them generally applicable.

    Now as far as your solution of having the legislature passing RFRAs with some version of the pre-Smith standard, that would allow the legislature to make exceptions to religious freedom once it turns out that some unpopular religion is getting the benefit of the law.

    1. What about consensual human sacrifice? You said you include suicide in the category of clear compelling interest/least restrictive means, but it seems hardly self-explanatory. It seems, to me, that this involves value judgments either way. What if we go more practical. Rather than immediate death, the concern is the spread of deadly infectious disease? This isn’t intended to say there’s a right answer, but that this is more complicated than you seem to think.

      1. On another thread, about the original intent of free exercise, I said the RFRA standard was a close-enough-for-government work substitute for simply letting the government “accidentally” stepping all over minority and unpopular religions.

        I don’t think the exact RFRA formula is in the original understanding, just something like it.

        In 1791 (Bill of Rights) and 1868 (14th Amendment), suicide was not considered a right, in fact it was deemed something the govt ought to discourage.

        In a modern context, if suicide is allowed under various medical protocols, then the case for banning some religious variant of suicide might get weaker – or not, if the courts decide that they should go as far as possible to discourage suicide within the bounds of the positive law.

        1. The context is where suicide isn’t allowed under medical protocols but someone is requesting a religious accommodation – just like someone is requesting a religious accommodation so they don’t have to bake a cake for a marriage they don’t approve of. You suggested one was an easy case for religious accommodation and one was an easy case against religious accommodation and I suggested that both create difficult line-drawing situations.

          Personally, I’d be open to going back to a pre-Smith framework with the understanding that the actual standard is “reasonable accommodation” and not really strict scrutiny (it was strict in theory, not in practice). But I don’t think this is an easy decision either way and there are lots of good arguments on both sides.

          1. “The context is where suicide isn’t allowed under medical protocols but someone is requesting a religious accommodation – just like someone is requesting a religious accommodation so they don’t have to bake a cake for a marriage they don’t approve of.”

            You get plenty of results when you Google “RFRA” and “human sacrifice” – always as an example of what the First Amendment *shouldn’t* protect.

            As for a business only catering man/woman weddings – opponents and supporters of RFRA both cite that scenario in support of their position – opponents because these businesses should be forced to do the catering, supporters because they shouldn’t.

  5. Let’s hear a principled argument for why every enumerated right shouldn’t be subject to strict scrutiny. After all, it’s not like the Constitution itself separates rights into differing categories of importance.

    It simply says, “Don’t do this”, and then the courts add an invisible, “unless you have a good reason”. And then the courts discriminate between rights, requiring better or worse reasons depending on their own opinion of the importance of the right.

    But it seems to me that all the rights are expressed at the same level of priority: Don’t violate, and no exceptions are given.

    Why shouldn’t the layman look at the Constitution, and at what the courts are doing, and simply conclude that the courts don’t really like these rights, and so don’t require the government to actually respect them?

    1. Eugene worships at the altar of footnote 4. He forgets that the founding generation did not defenestrate a king to enable a majority to do what the king would never dare.

    2. The usual reason (not mine!) is that freedom of speech DOES have limits: slander, libel, trade secrets, military secrets, user names and passwords, etc. The right to keep and bear arms DOES have limits: no prisoners, no felons, no infants, no mental cases.

      Read somewhere that these do not abridge freedom of speech, for instance, because “freedom of speech” is not three separate independent words, but a complete phrase, which was always understood to have those explicit exemptions. Presumably ditto for the right to keep and bear arms.

      Another excuse is that punishing slander, libel, etc after the fact is for the harm they do, as opposed to pre-emptive bans. This doesn’t apply to the right to keep and bear arms, but there it is. Seems to me just another excuse to not be an absolutist, and some people think that is fine.

      1. There’s a whole boatload of caselaw from 100 years ago saying that the First Amendment does nothing more than prevent pre-emptive bans, but you can be punished after the fact. That probably was how the framers understood it too. That’s no longer the law, and has not been for decades, but it was the law until the middle of the 20th century.

    3. “Let’s hear a principled argument for why every enumerated right shouldn’t be subject to strict scrutiny. After all, it’s not like the Constitution itself separates rights into differing categories of importance.”

      I argue that instead we should look at this as a conflict between two enumerated rights — the right to be Catholic and the right to be Gay.

      And hence the question should be is this policy infringing on the right to be Gay — and it isn’t because gay couples can register with a competing organization. And they can form their own organization that only places children with “LBGTQ-friendly” couples.

      Would the latter be unconstitutional?

    4. Why are you singling out enumerated rights. The ninth amendment makes clear the list is intended as non-exhaustive. If you’re going to be consistent, you should advocate for all rights – enumerated or otherwise – receiving strict scrutiny.

      1. I’m singling out enumerated rights, because while it’s possible to argue in good faith whether any given unenumerated right actually IS a right, enumeration of a right forecloses that option. Once enumerated, a right IS, unarguably, a right, at least for legal purposes.

  6. In 2020 with respect to the 1A the word “press” should be ignored and so should the word “religion”. So by virtue of being bloggers do the conspirators get special press protections?? Do Scientologists get special religion protections?? So free speech and free association should cover everything.

    1. “In 2020 with respect to the 1A the word “press” should be ignored and so should the word “religion”. So by virtue of being bloggers do the conspirators get special press protections??”

      LOL.

      You really don’t know the author you are responding to, do you.

      Tell me more about this “press” thing you speak of.

      1. As an originalist I believe only people with an actual printing press should get 1A “press” protections.

        1. I see you can google, but you still don’t get it.

          It’s almost cute, except far too typical. I’d be more sympathetic to Prof. Volokh, but these are his readers.

          Lie down with dogs, etc.

          1. Religion seems like a fulfilling hobby just like yoga or fantasy football…but that’s all it is is a hobby. In 2020 religion is fairly innocuous in America but in 1789 religion was very important because there weren’t a whole heck of lot of things for people to do. If the Constitution were written today slavery wouldn’t be referenced in the Constitution and neither would religion or press.

            1. Even if you think it’s a hobby, then it’s a hobby the Constitution singles out for special treatment.

              1. He hasn’t got to Article V yet. Give him a chance!

                1. Yes, the same people that thought up the 3/5ths Compromise protected free exercise of religion…WALK TALL!

                  1. The 3/5ths Compromise WAS ABOUT TAXATION!!!!!

                    Not slavery…..

                    1. Representation in Congress, actually, and apportionment. Only indirectly for taxes.

                    2. What group of people does the Fugitives from Labor Clause concern?? Enquiring minds want to know! 😉

                    3. Remember that it took the 16th Amendment to give Congress [the] power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.

                      Hence, I’d argue that it was very much about taxes…

                      And endentured servants were common in the North, as were those endentured to an apprenticeship (e.g. Ben Franklin — who was a fugitive from Boston).

                    4. So it was just about indentured servants??? Looks like someone is trying to do their own “1619 Project”. 😉

                    5. The 3/5ths Compromise WAS ABOUT TAXATION!!!!!

                      Not slavery…..

                      Taxation of what, Dr. Ed?

              2. Correct, religious people are free to think they are special just like members of the press because their hobby is mentioned in the 1A. That said, if religious people get special protections then I will make up my own religion or worship a cool deity like Thor just to get those sweet sweet 1A protections! And if members of the press get special protections then I will start a media company so I can get a paycheck for being a member of the press and get those 1A protections! 😉

                1. By the same token, LBGTQ people are equally free to think they are special because their hobby is somehow mentioned in the 14 A.

                  And while I joked about being a “male lesbian”, maybe I should get formal recognition as such so I can get those “sweet sweet 14 A protections.”

                  1. With respect to transgender “rights” the coronavirus has revealed our public bathrooms are set up suboptimally. So we shouldn’t have gender based bathrooms we should have one big bathroom with much more privacy at each stall and then urinals in the back. So that would also solve the modern problem of daddy/daughter day with fathers having an easier time with the bathroom situation.

                    1. Having traveled extensively (nearly 80 countries, most recent being Madagascar) I can tell you that there are places where that’s exactly how the bathrooms are set up. I still remember being taken aback the first time I stepped out of a stall in China to find a woman and her daughter stepping out of the stall next to me.

                    2. At an outdoor festival the port a potties aren’t generally gender based. So males and females could be using port a potties next to each other. The key for public health is much more privacy AND lids on public toilets that automatically go down before flushing. I often point out that at sporting events in the past men would often pee in troughs but now in newer urinals we have stalls with dividers—Americans demand more privacy each year and not less. So the logical endgame is stalls so private that it doesn’t matter who is next to you.

                    3. “I often point out that at sporting events in the past men would often pee in troughs but now in newer urinals we have stalls with dividers”

                      My company’s plant in Germany has that sort of urinal, at least in the older building. I haven’t had occasion to use a bathroom in the more recent plant, so I don’t know about that.

  7. Re proofreading: in footnote 6, is it “Roommates.com” instead of “Roommate.com”? I remember there being some quirk where the business name is different from the website, but I don’t remember which way it goes.

    1. Oddly, the caption for that particular decision does indeed say Roommate.com.

  8. Great piece. Whenever I think that Scalia had no great or memorable majority opinions, I am reminded of Empl. Div. v. Smith, his finest hour.

    It’s a pity that those who revere him most did not seem to understand what he wrote.

  9. I’m curious as to whether you would be willing to apply the Smith rule to free speech cases. Or gun possession cases. Or free association cases. If not, why are those rights subject to strict scrutiny and not free exercise?

    1. I think Professor Volokh typically starts with figuring out what is included in the right and then, if it’s protected within the right, applying strict scrutiny. In the First Amendment context, defamation and obscenity are unprotected and he thinks this is right as a matter of Constitutional law (even if he doesn’t think those laws are always good policy). He certainly does not think laws against obscenity are subject to strict scrutiny because, frankly, I think they would fail pretty easily.

      The same can be true for the Free Exercise clause. If the right doesn’t protect against generally applicable laws, then those laws aren’t subject to strict scrutiny even if violations of the right to free exercise of religion does get that standard.

  10. “For instance, should people have a right to assisted suicide? This Court in Washington v. Glucksberg, 521 U.S. 702 (1997), refused to recognize such a right under substantive due process, and upheld an assisted suicide ban under the rational basis test. But if Smith were overruled, any person who claims a religious obligation to assist in suicide would trigger the very sort of strict scrutiny inquiry that Glucksberg forecloses.”

    This of course, could easily go the other way. There are several laws which allow or could allow assisted suicide. And if a doctor was a firm Catholic, and didn’t believe in assisted suicide, but the law demanded that he assist the suicide of a patient, or lose his license, what should the law do in such a case?

    Cases like these are why the RFRA exists, both on a state and a national level.

    1. “Cases like these are why the RFRA exists, both on a state and a national level.”

      Except …

      1. There was no case like that; and

      2. That’s not why the RFRA was created.

      Other than that, batting 1.000.

      Man, the political commentary on this site is terrible, but even the legal analysis is miserable too.

    2. “And if a doctor was a firm Catholic, and didn’t believe in assisted suicide, but the law demanded that he assist the suicide of a patient, or lose his license, what should the law do in such a case?”

      The issue has arisen with nurses forced to participate in abortions.

  11. The problem here is that there are two competing religions with views in direct conflict with each others.

    Yes, I consider the LBGTQ movement to be a religion. It relies on faith, and it holds beliefs that are directly in opposition to existing science (the “T” comes to immediate mind, DNA is either X or Y).

    So you have the one religious group that wants to practice its religion and have same sex couples adopting children, and you have another religion that doesn’t want to participate in that — in both case because of faith-based religious views.

    The purpose of the Establishment Clause was to prevent the state from picking one religion over another. That was the concern back in 1787 — the Congregationalists, the Baptists, the Quakers, the Catholics, the Anglicans (etc.) were all afraid of having a different religion imposed upon them. So too here.

    Let the Gays be Gay and the Catholics be Catholics….

    Nowhere does it say that Catholic Social Services is the *only* adoptive agency in the City of Philadelphia, nor is there any evidence that Philadelphia wouldn’t (doesn’t?) also contract with LBGTQ-owned/run adoptive agencies — that would be a different story.

  12. My basic argument begins and ends with the text. The Free Exercise Clause protects the “exercise” of religion. Exercise is conduct. If the Framers had wanted to limit things to identification or belief, or to religious exercise only when it aligns with other enumerated rights like speech, they could have said so.

    The difference between a textual right and a “broad substantive due process” regime is precisely that a textual right is textual, while broad sunstanrive due process rights are not.

    The constitution requires judges to make numerous tough calls with no obvious boundaries. What is a “reasonable” search or seizure? What is an “excessive” fine or “cruel and unusual” punishment? When the text requires judges to make calls, I accept that calls have to be made and people will inevitably disagree. I don’t object to that.

    Justice Scalia wanted certainty. He preferred bright lines over standards. He wanted to avoid judgment calls. But the text constitution calls for an uncertain world. It is full of standards and judgment calls.

    When the text of the constitution calls for it, we have to accept its burden. It is not for us to prefer our own easier and more sure way of doing things to what it requires of us.

    As Justice Scalia put it, a judge has no warrant to eviscerate a textual constitutional right or to substitute judge-made law for it because he prefers the judge-made law.

    1. Paraphrasing from an earlier post of mine:

      The text does not protect the exercise of religion, but rather the free exercise of religion. Similarly, the text does not protect speech, but rather the freedom of speech. This latter distinction permits regulations on libel, perjury and other speech. Perhaps the former distinction permits prohibitions on exercises of religion that violate generally-applicable laws.

      1. And, as I stated in response to that, this gets you nowhere unless you can demonstrate that the free exercise of religion was a term of art at the time, with a distinct meaning different from the normal meaning of the term.

      2. While the court’s “freedom of speech” jurisprudence has exceptions, I think those exceptions can be characterized as fitting into one of two categories. Either they fall comfortably within the “compelling interest” framework (e.g. navy sailing schedules), or they are part of a small set of traditional exceptions that the Court has held the Framers could not have intended the First Amendment to cover (e.g. obscenity laws) .

        It seems to me that if we are arguing the word “free” qualifies the Religion Clauses in the same way “freedom” qualifies the Speech Clause, it would similarly justify a compelling interest standard plus a limited set of specific history-based exceptions (e.g. Marsh v. Chambers).

        But Smith goes way beyond any of that. It makes the Religion Clauses nothing like the Speech Clause at all.

        1. Scalia thinks the rule in Smith is supported by specific history.

  13. Possibly not a typo, but “decisionmaking” without a hyphen looks strange to me. Firefox spell check doesn’t like it either. But it shows up four times, and never with a hyphen or space, so I guess it is intentional.

    1. I did a quick check, and “decisionmaking” seems to be the more common usage in Supreme Court opinions, though it’s a rough tie in federal Court of Appeals opinions, and a distinct minority usage in the Google Books corpus.

  14. “Much of the common law of tort, contract, and property reflects such judgments. But such decisions are only tentative, because they can be overruled by legislatures.”

    Is that in fact true? In many jurisdictions – Florida most notably comes to mind – the state Supreme Court has struck down laws that provide “tort reform.”

    1. A few state courts have struck down some tort reform rules, generally on state constitutional grounds; but I’m speaking here of the broad pattern of the law, and the lack of federal constitutional constraints on it — and there is indeed virtually no federal substantive due process limit on legislatures’ ability to revise common-law tort doctrines. (State courts can read state constitutions as providing more rights against the state government than does the federal constitution, and some state courts continue to recognize fairly significant substantive-due-process-based economic liberty protections, as well as [in some states] protections for common-law tort claims.)

  15. Really it boils down to the question of “do we want the federal courts to be the religious liberty control board?” meaning do we want very single government action to potentially have to be reviewed by the federal judiciary any time it might impact religious liberty. I think the ultimate answer is “no” as that is not the role of the judiciary in a constitutional sense. Just like it is not the role of the federal judiciary to function as a de facto abortion control board in that it “approves” or “rejects” any measure that touch upon regulation of abortion.

    1. Do we want federal courts to be the speech liberty or press liberty control board, as they are now?

      What’s the difference?

      1. The obvious difference between religious liberty and abortion is that religious liberty is mentioned in the constitution, while abortion isn’t.

        1. That’s why abortion gets more protection from the courts than religious liberty. The courts are much more concerned about protecting rights they invented themselves, than rights that are merely enumerated in the Constitution.

      2. Speech and the press can be more broadly defined with understandable constitutional limitations. Freedom of religion is extremely fact sensitive and can invade even facially neutral laws. I’m definitely not opposed to some sort of control process to insure religious liberty, just I don’t think making every single government action a potential federal case is the way to do it.

        1. “Freedom of religion is extremely fact sensitive and can invade even facially neutral laws.”

          I think you got that backwards.

  16. Overall, I think the brief is strong. However, while you make a good case for why exemptions should not categorically trigger strict scrutiny, I would like to see some guidance on how courts should decide when exemptions go too far. The recent decision by the Sixth Circuit on Kentucky keeping in-person church services closed might make a good case study.

  17. I am wondering if the brief needs a reference to COVID-19 or is that too controversial. States are trying to keep people safe but churches insist that they should be able to hold services (there have been an inordinate number of deaths of pastors in the Bible Belt).

    It is not just the religious set that is affected. Participants have the potential to spread the contagion. Eventually the Court is going to have a case come before it. IIRC there is a circuit split. Nevertheless, overturning Smith means that people have a right – on religious grounds – to get sick, to die, to make others sick and to cause others to die.

    1. Even apart from the Free Exercise Clause, generally applicable limits on gatherings presumptively violate the Assembly Clause, which the Court has held protects religious gatherings as much as political ones. I think they are constitutional in time of epidemics because they pass strict scrutiny (which is why they’ve generally been upheld under state RFRAs); rejecting Employment Division v. Smith wouldn’t change that.

      1. I thought you had blogged that limits on gatherings during an epidemic might be constitutional because they don’t violate the Assembly Clause

        “The right of the people peaceably to assemble, and to petition the Government for a redress of grievances” is just one particular express elaboration of this liberty. But the premise behind the liberty is that people assembling together can choose to be “peaceable,” and thus physically safe for each other and for bystanders, and we should punish only those who deliberately abuse the right (by acting non-peaceably).

        If that theory is correct, then wouldn’t strict scrutiny only apply to those with religious objections if Smith is rejected?

        1. I think they presumptively violate the Assembly Clause, but can be (and have been) upheld in times of epidemics under strict scrutiny — and thus would be upheld under strict scrutiny even if Smith is rejected.

  18. Footnote 2 does not advance your argument and does not assist the Court. I would remove it.

    1. I had included it in case one of the clerks (or, less likely, one of the Justices) is annoyed at my making all these functional arguments, and thinks that the important point is to figure out the original meaning. I wanted to acknowledge that this could indeed be an important matter, but that I just didn’t have anything to add on it. Is that reasoning unsound?

  19. It is in the nature of RFRA cases that they produce demands for strict scrutiny. Strict scrutiny, in turn, demands laws severely tailored to meet religious requirements of the claimants, while leaving broad latitude for the claimants to pick and choose what they require.

    Individual religious claimants are held to no generally applicable menu of choices. It is all open ended. The result is that no readily applicable general standard for state response to RFRA claims seems practical. Each case is argued to demand individual tailoring of the state’s response, to suit the individualized needs of the claimants.

    Sometimes cases arise—emergency pandemic response is one such time—where a general and broadly applicable state need, which ought to be applicable to every religious instance, can be opposed under RFRA laws by demands for myriad individual tailoring challenges, which the state cannot hope to cope with individually.

    That seems to be a notable flaw in the way RFRA laws work at present.

    NOTE: I am not a lawyer. I wrote the above on the basis of no other information about RFRAs than what I got reading this blog. That means, I think, that every factual-sounding assertion could be mistaken. And my conclusions are guided by no relevant expertise. Corrections welcomed, but simple shunning will equally suffice.

    1. lathrop, I’ll assume you made the comment in good faith. Let me ask you a couple of straight-up questions. Not trick ones.

      If free exercise is an enumerated right, is the standard to evaluate always strict scrutiny? (why or why not)

      Is there a bright line you draw to determine when in-person religious services can be held? (at what point do prohibiting in-person religious services become wrong)

  20. I’m with you in your analysis of the First Amendment and agree Smith was rightly decided. I’m less persuaded by your arguments about what constitutes a generally applicable law or rule. The rules of evidence really do not strike me as an apt place to start or end the analysis. Especially not when we have more relevant real world examples — such as the Swiss cheese re opening rules that single out religious conduct as a distinct class — that seriously need to be grappled with. Reliance on a Kennedy-esque Religious Animus test to find discriminatory, non generally applicable rules has it’s draw backs. First, it requires a a judge to analyze the intent of the lawmakers that is somewhat subjective. And second, eventually bureaucrats will develop such sparse or sanitized records to defeat the inquiry and cover for their biases. A more rigorous needs to be considered for the generally applicable prong than you’re proposed here, in my opinion.

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