What Justice Barrett's First Two Concurrences Tell Us About Her Approach to the Free Exercise Clause and Originalism

In both South Bay II and Fulton, she wrote separately on the Free Exercise Clause.

Thus far this term, Justice Barrett has written two concurrences. First, she wrote a concurrence in South Bay United Pentecostal Church v. Newsom II. Indeed, her South Bay concurrence was the first writing of any kind as a Justice. Second, she wrote a concurrence in Fulton v. City of Philadelphia. Both concurrences were joined in full by Justice Kavanaugh. These opinions provide some early clues about her approach to the Free Exercise Clause, and originalism.

Let's flash back to the beginning of her tenure. She was confirmed on October 27, 2020. At the time, Chief Justice Roberts's concurrence in South Bay was the law of the land. And the Second Circuit upheld Governor Cuomo's cluster initiative under the Chief's super-precedent. On November 12, 2020, the Diocese of Brooklyn filed an emergency application with the Supreme Court. And thirteen days later, the Court granted the injunction by a 5-4 vote. Of course, Justice Barrett, who replaced Justice Ginsburg, was the deciding vote.

Fast forward to February 5, 2021. The Supreme Court granted an injunction in South Bay II. A majority of the Court enjoined Governor Newsom's restrictions of indoor worship. However, the majority split about the prohibition on singing in churches. Justices Thomas and Gorsuch would have granted "the application in full." In other words, they would have enjoined the percentage caps, and the ban on singing and chanting indoors. Justice Alito would have given the state thirty days to prove that the percentage caps and ban on singing would absolutely essential to prevent community spread. If the state could not meet that burden, then in thirty days, the stay would lift. Critically, Justice Alito would have placed the burden on the state to justify its policy.

Justice Barrett wrote a concurrence, which was her first writing on the Court. She was joined by Justice Kavanaugh. Justice Barrett seemed to agree with the bulk of Justice Gorsuch's statement. But she wrote that the churches had "the burden of establishing their entitlement to relief from the singing ban." And the applicants had not yet met their burden. She speculated that California's law may not in fact be neutral and generally applicable. For example California may permit singing in Hollywood studios, but not in churches. That regime would then fail under strict scrutiny. Unlike Justices Thomas, Alito, and Gorsuch, Justices Barrett and Kavanaugh would have placed the burden on the people of faith to justify the policy.

At the time, I was surprised by the Barrett concurrence. I wrote, "This opinion left me wanting much, much more clarity." In an instance, I recognized that Justices Barrett and Kavanaugh were unwilling to use strict scrutiny to review burdens on the free exercise of religion that are neutral and generally applicable. Traditionally, with strict scrutiny, the state has the burden to justify their law. By contrast, under more relaxed forms of scrutiny, the challenger has the burden. I never thought there were five votes to overrule Smith. Justice Barrett signaled that position loud and clear during oral arguments. 

Fast-forward again to Tandon v. Newsom, which was decided on April 9, 2021. This case also enjoined Governor Newsom's restrictions on indoor worship. Much to my surprise, the Court basically adopted Justice Kavanaugh's Calvary Chapel dissent. (I maintain that dissent was the most important opinion that Justice Kavanaugh has written so far). And I firmly believed that Tandon was decided in the shadow of Fulton. This shadow docket case presaged where the Court was headed: heightened scrutiny for Free Exercise Claims based on a "most-favored nation" argument.

Yet, Tandon played no role in Fulton. Chief Justice Roberts's majority opinion did not even cite any of the recent Free Exercise Clause cases. It was decided on hyper-technical grounds. The case set no meaningful precedent. And it remains to be seen if Philadelphia will try to fight on by revoking the power to grant discretionary exemptions. I've already offered my rank speculation that Justice Alito lost the majority opinion. If he lost it, in my view, it happened at some point after Tandon. If Justice Alito did lose the majority opinion, then two votes would have had to shift: Justices Kavanaugh and Barrett. And, lo and behold, Justice Barrett wrote a concurrence joined in full by Justice Kavanaugh, and almost in full by Justice Breyer. And in that concurrence, Justice Barrett echoed her South Bay II dissent: strict scrutiny is not warranted for burdens on the free exercise of religion that are neutral and generally applicable. She wrote:

Yet what should replace Smith? The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith's categorical antidiscrimination approach for an equally categorical, strict scrutiny regime, particularly when this Court's resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced.

The Court's Free Speech jurisprudence is not "nuanced." It is a mess. There are many conflicting and overlapping tests. And the Court's Free Assembly (does she mean Freedom of Association?) jurisprudence borders on incoherent. But those doctrines are, with few exceptions, not categorical. For example, consider a law that regulates the time, place, or manner of speech, without regard to the content of that speech. Such "content-neutral" laws are reviewed with a heightened form of intermediate scrutiny–not strict scrutiny. Perhaps Justice Barrett would replace Smith with something akin to the time-place-manner framework. After all, Smith concerned religion-neutral laws. This standard would be less protective than something like RFRA, or even Sherbert v. Verner. There is no requirement to show a "least restrictive means." How would the Masterpiece Cakeshop Case come out on Free Exercise grounds with this revamped Free Exercise Clause argument? I suspect Jack Phillips would lose, though I am open to being persuaded otherwise.

In her first two writings, Justice Barrett has signaled her leanings on the Free Exercise Clause. And Justice Kavanaugh joined those leanings. Critically, those leanings are not informed by original meaning. She said, without any hesitation, that Michael McConnell's voluminous research did not persuade here:

While history looms large in this debate, I find the historical record more silent than supportive on the question whether the founding generation understood the First Amendment to require religious exemptions from generally applicable laws in at least some circumstances.

Rather, she is motivated by arguments based on "text and structure."

In my view, the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.

Based on the brief snippet, I'm not sure what role "text" plays in her analysis. Justice Alito has an exhaustive analysis of each word in the Free Exercise Clause, based on contemporary dictionaries. Yet Justice Barrett apparently found that historical analysis "silent." I'm also not sure what "structure" means here. The argument isn't that the First Amendment, as an original matter, played some important structural component in the relationship between the federal government and the states. Rather, Justice Barrett used the phrase "structure" in a different sense: how the First Amendment relates to the other amendments in the Bill of Rights, under the Court's modern doctrine.

Again, she doesn't discuss how those other provisions should be interpreted as an original matter. Indeed, much of the Court's First Amendment jurisprudence is indefensible on originalist grounds. Rather, her "structural" argument is based on modern doctrine. The word "structural" is just a placeholder for "precedential." The Court has interpreted other provisions of the Bill of Rights to protect more than mere discrimination. Therefore, she reasons, the Free Exercise Clause should be interpreted in a similar fashion. This argument is entirely modernistic. She takes decisions of the Warren and Burger Courts as the starting point, rather than beginning with original meaning.

If an originalist finds that a claim is not supported by originalism, then the inquiry should stop. The Court has no role to play in crafting new doctrine. Justices Thomas and Gorsuch articulated this premise in Garza v. Idaho: if there is "little available evidence suggest[ing] that" certain precedents are "correct as an original matter, the Court should tread carefully before extending our precedents in this area." For the same reason, I was so upset with Justice Kavanaugh's solo concurrence in Caniglia v. Strom. He made no effort to discern the original meaning of the Fourth Amendment. Rather, he was worried about how to expand a Burger Court doctrine that was made up out of whole cloth.

I'll admit, these two sentences, joined by the two newest members of the Court, made me feel like a failure. The entire enterprise to put originalist judges on the Court left us exactly where we started: justices who are content to expand doctrine without regard to original meaning. These two sentences made me angrier than California v. Texas. And my anger bled through to my posts.

What comes next? I'm sure the Court will eventually take another Free Exercise Clause case. I am not confident there are five votes to formally overrule Smith. Maybe, at best, the Court amps up the level of scrutiny. I'm not sure how to write that opinion without overruling Smith. But incrementalism. In the meantime, Jack Phillips's case is trickling up the pipeline.