A Brief Ideological History of Religious Exemptions

How (many but not all) conservative Justices came to embrace Justice Brennan's position and reject Justice Scalia's, and vice versa for the liberals.

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In recent years—especially with the debates about Hobby Lobby and Fulton v. City of Philadelphia—I've seen lots of people on the left assert that religious exemption regimes are a conservative invention. Increasingly, I'm seeing some on the right being surprised that some conservatives (such as Chief Justice Roberts and Justices Kavanaugh and Barrett) aren't fully committed to broad religious exemptions.

But from the 1960s to the early 1990s, a broad reading of the Free Exercise Clause was actually a liberal position. Some conservative Justices were skeptical of that position, and indeed led the charge against that broad reading.

At the same time, conservatives have themselves long been split on such matters, and for understandable reasons. While many conservatives tend to strongly respect religious practice, many also strongly support democratic decisionmaking (and are thus reluctant to mandate exemptions from democratically enacted laws). And many conservatives oppose discretionary judicial decisionmaking of the sort that a broad Free Exercise Clause exemption regime would require; consider Justice Scalia's insistence on "the rule of law as a law of rules." As a result, there have long been conservative Justices in both camps of these Free Exercise Clause debates.

1. The Sherbert/Yoder era (1963 to 1990)—a broad reading of the Free Exercise Clause, mostly promoted by liberals: Throughout American history, legislatures often created religious exemptions from generally applicable laws (such as from alcohol prohibition or the military draft). But until the early 1960s, this was generally seen as a matter for legislative judgment, and not a constitutional command under the Free Exercise Clause.

In the early 1960s, though, the arch-liberal Justice Brennan began to forcefully advocate for a broad reading of the Free Exercise Clause, and in 1963 he succeeded, in Sherbert v. Verner. 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).

As a result, the Court adopted what later came to be called the Sherbert/Yoder test: Religious objectors are presumptively constitutionally entitled to exemptions from federal, state, or local laws that substantially burden their religious practice—e.g., by requiring them to do something they view as religiously forbidden, by forbidding them from doing something they view as religiously required, or by imposing a financial penalty on religiously motivated action or inaction. That presumption can be rebutted (and it often was), but only when denying an exemption was seen as necessary to serve a compelling government interest.

Now of course any such rule would naturally be applied differently by judges with different ideological views, simply because one way we determine a person's "ideology" is by looking to see what he counts as sufficiently "compelling" government interests. But that was understood, I think, as an inherent part of any sort of constitutional "balancing test" such as the one crafted by Justice Brennan in this field. Different judges balance differently; we can debate who is right and who is wrong, and regret that there can't be more consensus on such matters; but better, the argument went, to let judges balance such claims than to reject all such claims outright.

Through the 1970s and 1980s, this rule that religious exemptions are presumptively constitutionally mandated was broadly endorsed by liberal Justices (and many moderates), and was embraced by liberal groups, including the ACLU. Its only foes on the Court were the arch-conservative Justice Rehnquist, and Justice Stevens; even Justice White, who dissented in Sherbert, was willing to apply the constitutional religious exemption rule during those decades.

2. The rejection of the constitutional exemption regime, 1990 to about 2020, mostly promoted by conservatives: Then came Employment Division v. Smith (1990), which held that the Free Exercise Clause generally did not require religious exemptions from generally applicable laws (though it left room for many legislatively provided statute-by-statute exemptions).

That rejection of religious exemptions was famously led by Justice Scalia, joined by conservative Chief Justice Rehnquist and Justice Kennedy (who at the time was seen as a solid conservative), moderate Justice White, and Justice Stevens, who I think was still viewed as moderate at the time, though he had begun to be viewed as more liberal. As I suggested above, this stemmed—at least on the conservative flank of the Court—in part from Justice Rehnquist's majoritarianism, and in part from Justice Scalia's skepticism about discretionary balancing tests, which is what the Sherbert/Yoder test in practice amounted to.

The dissenters were moderate conservative Justice O'Connor (again, conservatives tend to be split on such matters), liberal Justices Brennan and Marshall, and Justice Blackmun, who by then was seen as a liberal. The ACLU weighed in on the dissenters' side. Religious exemptions were thus still seen as a predominantly liberal cause; indeed, Justice Breyer, who joined the Court shortly after Smith, endorsed the old Brennan position in City of Boerne v. Flores (1997), though Justice Ginsburg followed Stevens (who by 1997 was seen as a liberal) in rejecting it.

3. The bipartisan Religious Freedom Restoration Act: Smith was denounced from both sides of the aisle, and providing a broad umbrella of religious exemptions became a clearly bipartisan position. 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 Religious Freedom Restoration Act of 1993. RFRA was spearheaded in the Senate by Republican Senator Orrin Hatch and Democratic Senator Ted Kennedy.

RFRA passed the Senate by a 97-3 vote, and passed the House unanimously. After RFRA was struck down as to state and local governments in 1997 (on federalism grounds), the narrower Religious Land Use and Institutionalized Persons Act of 2000 was enacted. (Because it was focused mainly on federally funded programs and activities that affected interstate and foreign commerce, it has generally been seen as immune from the federalism challenge that cut back on RFRA.) RLUIPA likewise passed unanimously in Congress.

RFRA and RLUIPA have been applied by the Supreme Court three times, once allowing a religious exemption along conservative-liberal lines (Hobby Lobby), and twice allowing it unanimously (Gonzales v. O Centro, which involved a small religious group's use of the hallucinogenic drug hoasca, and Holt v. Hobbs, which involved a Muslim prisoner's wearing a beard). In the Supreme Court as well as in Congress and among advocacy groups, religious exemptions have become bipartisan causes—I think likely because conservative Justices who thought the Court shouldn't use the Free Exercise Clause as a broad mandate to trump legislative judgment have no problem with applying RFRA and RLUIPA, which after all enforce legislative judgment.

Again, it was obvious that conservatives would dislike some liberal judges' application of a presumptive religious exemption regime, just as it's inevitable that liberals would dislike some conservative judges' application of such a regime. But the premise of the broad bipartisan coalition behind RFRA or RLUIPA (whether or not that premise is normatively correct) is that the benefit of presumptively protecting religious objectors is worth the cost.

4. State law protections for religious exemptions, increasingly coming mostly in conservative states: Between Smith and RFRA, and then after RFRA was struck down as to state and local governments, state RFRAs began to be enacted at the state level. At the same time, some state supreme courts have interpreted their state constitutions as securing protection similar to that offered under the old Sherbert/Yoder test. At this point, about 2/3 of the states have one or the other sort of religious exemption scheme in place.

Here, I think that, as time has gone on, state RFRAs have become more likely to be enacted in more conservative states. (I can't speak to the ideological affiliations of the state supreme court Justices who have adopted state constitutional exemption regimes.) And there certainly have been more objections raised by liberals to state RFRAs, in part because of a concern that state RFRAs would be used to carve out exemptions from antidiscrimination laws.

5. Many conservative Justices embrace Justice Brennan and reject Justice Scalia: Likewise, starting with the late 2010s, many conservative Justices began to endorse the Brennan Sherbert position (that the Free Exercise Clause presumptively requires religious exemptions) and reject the contrary Scalia Smith position.

Justice Alito had, even when he was a circuit judge in 1999, read Smith narrowly, and concluded that religious exemptions were constitutionally required when a law had secular exceptions. In Roman Catholic Diocese v. Cuomo (2020) and Tandon v. Newsom (2021), this position was endorsed by a conservative majority of the Court (Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett), though not fully by Chief Justice Roberts.

And Justices Thomas, Alito, Gorsuch, and Kavanaugh had also argued in some late 2010s cases in favor of an outright rejection of Smith and return to Sherbert. Just a few days ago, in Fulton Justices Thomas, Alito, and Gorsuch made that especially clear, and indeed expressly disagreed with Justice Scalia's views in Smith.

But Justices Kavanaugh and Barrett, joined largely by liberal Justice Breyer, took an intermediate position, seemingly calling for a reading of the Free Exercise Clause that was somewhere between Smith and Sherbert (though their position wasn't entirely clear). And Chief Justice Roberts, joined by liberal Justices Sotomayor and Kagan, seemed open to retaining Justice Scalia's position in Smith.

6. So the ideological pattern is roughly this:

  • From the 1960s to the 1990s, a broad pro-religious-objector reading of the Free Exercise Clause was mostly a liberal cause, and it was mostly conservative Justices who pushed back against it.
  • Starting with the late 2010s, the ideological sides largely flipped, with conservatives advocating for what used to be the Justice Brennan position, and rejecting the Justice Scalia position.
  • At the same time, there had long been divides within each camp on the Court. In the 1990s, for instance, moderate conservative Justice O'Connor supported the then-liberal religious exemption view, while liberal Justice Ginsburg and moderate-moving-to-liberal Justice Stevens supported the then-conservative no-religious-exemption view.
  • Likewise, today liberal Justice Breyer seems to endorse religious exemptions, joining the conservatives, and conservative Chief Justice Roberts appears to be skeptical of them, together with liberal Justices Sotomayor and Kagan. And conservative Justices Kavanaugh and Barrett seem to support a narrower view of religious exemptions than the conservative Justices Thomas, Alito, and Gorsuch.

In any event, that's the history of the debate, whatever you might think of what the right rule ought to be. Why the switches happened on both sides is up to you folks to speculate about. (It may have to do, again on both sides, with the surge of what may seem like "conservative" culture war religious exemption claims, but those were anticipated even when Smith was decided, and certainly when City of Boerne v. Flores was decided in 1997.) But there has indeed been both a broad switch, and internal tension within both the liberal and conservative sides of the Court both before and after the switch.

[UPDATE: I revised the title to say "ideological history" rather than "political history," since this post is mostly about the Court, though with some discussion of the political enactment of RFRA and RLUIPA; a 2015 post of mine, on which this one was based, spent more time talking about legislative actions.]

NEXT: Today in Supreme Court History: June 20, 1837

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    1. Ed: andru → andrew. Just joking; many thanks for the correction!

  1. George Orwell, the atheist socialist, concluded that it was primarily England’s Christian character, Christian values deeply embedded in its culture even after dogmatic belief had started to fade, that kept its conservatives from becoming Fascist and its socialists from becoming Stalinists.

    This was a view widely shared in the generation coming out of WWII. It made religion respectable among liberals, even those who didn’t believe in it themselves, for generations afterwards.

    1. An appeal to authority followed by an appeal to tradition.

      If you believe that to be true, could you go into why you think that reasoning is so valid?

      1. I find myself curious to hear your alternative explanation why people on the left, who had generally been rather hostile to religion in the 1920s and 1930s, became much more comfortable with it in the years after WWII. What’s your explanation for that.

        And I find myself even more curious – much more curious – to find out how you are going to give your explanation without making any appeal to either authority or tradition.

        Stanley Milgram had a number of narratives in Obediance to Authority. One of his narratives was the preacher who refused to accept the “doctor’s” authority because, Milgram said, he believed in a higher one, and that made not taking social authority at unquestioning face value easier.

        I don’t think someone like Stanley Milgram would have been so receptive to this way of thinking if it hadn’t been prevalent in the intellectual culture of the time.

  2. This seems like the legal analogue of “We, Republicans, are the good guys when it comes to race and politics, because we’re the ones who abolished slavery”. Conservative republicans made an alliance with Southern racist religious nuts, and here we are. Nothing more than a rearranging of alliances.

    (In the same way over here in Europe it used to be conservatives who looked out for religious rights – in 1905 laïcité was supposed to be the definitive victory of the left over the right in France – but now it’s conservatives adopting laws against headscarves and the left relying on the courts to resist them. Plus ça change…)

    1. In the 1800’s the Democrats were the biggest racists 9see slavery)

      In the 1900s the Democrats were the biggest racists (the Progressives were entirely racist)

      In the 2000 the Democrats are the biggest racists. CRT is pure racism. Schools discriminating based on skin color (the current lie is to call it “affirmative action”) is a Democrat cause celeb.

      So the Reason when we identify the Republicans as teh ones who abolished slavery, and the Democrats as the ones who fought to keep it, is because the Democrats are still the ones fighting to define “blacks” as inferior, and the Republicans are still the ones fighting for everyone to be under the same rules

      1. Weird how the Klan and Nazi types are all super GOP boosters these days, then. Also weird is how when anyone brings up The Bell Curve on here, which side thinks it brings up some great points about inherent mental ability among the races.

        Good job speaking for blacks about which party views them as inferior.

        1. All 12 of them? and half of them are working for the FBI? But libs are outwardly racist these days, in the name of not being racist.

          1. #1 with white supremacists but the other side is black supremacists is not the branding I’d go with, but you do you.

        2. “Weird how the Klan and Nazi types are all super GOP boosters these days”

          Does it give you sexual gratification to beat up that straw man?

          Because the people who talk like the KKK and like Nazis and their “racial science” are all on the Left.

        3. “Good job speaking for blacks about which party views them as inferior.”

          1: There are no meaningful groups, there are only individuals
          2: No one can “speak for blacks” any more than someone can “speak for whites”
          3: If we’re looking for who has the least respect for people with darker skin color, the Left wins hands down:

          The Smithsonian National Museum of African American History and Culture has removed a “whiteness” graphic that ascribed traits such as “hard work,” “self-reliance,” “delayed gratification,” being on time, and politeness to “white culture.”

          The KKK would have no problem agreeing with that. Neither would the Nazis

        4. Just in case your internet search skills aren’t up to the task, here’s a link:

          https://pbs.twimg.com/media/Ec90PqvXgAc2z16?format=png&name=large

          Now, please tell me what part of that the KKK would disagree with. I’ll wait

  3. As Americans become less religious laws have begun to impact Christian values more and so now Christian justices want a stronger FEC.

    1. Exactly.

      And on the other side, when it was Jehovah’s Witnesses and peyote smokers, the left cared because it was a stick in the eye of the dominant religion. Regular Christians didn’t need legal protection, now they do. So the left says no.

      1. As always, you assume bad faith. Yes, the left has shifted its views. No, it’s not “because it was a stick in the eye of” regular Christians.

        1. Are you sure? Imagine them defending the NEA paying for a Muslim religious symbol to be upended in a jar of urine, using the argument they need to be shaken in their beliefs.

          And since the drumbeat Trump was synonymous with neo Nazis, “stick it to ’em” has shifted from defending their marching in the 1970s to desires for government censorship of Nazi speech because it is dangerous today.

          Proof? The liberal arguing for expanding exemptions to the First Amendment in this week’s Radiolab on NPR. Actually there was an old school ACLU type arguing for continued protection, though I don’t recall if he literally worked for the org.

          1. Proof? The liberal arguing for expanding exemptions to the First Amendment in this week’s Radiolab on NPR. Actually there was an old school ACLU type arguing for continued protection, though I don’t recall if he literally worked for the org.

            That is not proof, primarily because you do what is all too fashionable these days. (But also because you’ve misrepresented the conversation.) You find one person (liberal/Democract/conservative/Republican) saying something you can characterize as anti-free speech and then say all liberals, except maybe some “old school ACLU type[s]”, hate free speech. But, then what of Trump promising to “tighten” libel laws and saying all manner of other things that were anathema to the version of free speech which you purport in this particular comment to support and which I do support?

            Basically, if you actually support free speech, then you shouldn’t dishonestly make it about liberals versus conservatives. You should criticize people on the left wanting the government to shut down speech they don’t like (like the “liberal” in this week’s Radiolab) and we should also hear your voice when the leader of the Republican Party is urging a private company to fire, say, Kaepernick for saying something the President doesn’t like or, even more ominously, saying this:

            “To me free speech is not when you see something good and then you purposely write bad,” [Trump] insisted. “To me that’s very dangerous speech, and you become angry at it. But that’s not free speech.” (from Intelligencer, July 2019)

            This, I think, is precisely the idea you felt was expressed in Radiolab that you don’t like. He’s representative of today’s Republican Party in a way that the person who’s name neither of us remembers and who was one of several people on Radiolab is not representative of “liberals”. But my point is not that Republicans are the horrible free speech people. Yes, Trump and his ilk are, but there are also the anti free speech people on the left. I can identify them both and disagree with them both.

            Can you publicly criticize Trump’s authoritarian stance on free speech?

            1. Well said, NOVA.

            2. “Can you publicly criticize Trump’s authoritarian stance on free speech?”

              Hmm, I don’t know.

              Will you publicly criticize every single company that fired someone for saying or doing something racist? No?

              They you’re at least as authoritarian as Trump.

              Do you publicly attack the social media companies for censoring Americans whose beliefs they don’t like? Do you support DeSantis and the FL GOP fighting their fascist censorship?

              No?

              Then you are FAR more authoritarian than Trump.

              Clean up the plank in your own eye before whinging about the mote in other’s eyes

              1. Your definition of free speech is…quite a partisan looking thing.

                1. Kapernick decided to, on his employer’s time, tell every single patriotic American football fan to FOAD. The end result of that has been a downward spiral in NFL watching, and fandom

                  If you find it “Authoritarian” for Trump to say “I would have fired his ass for doing that, and am surprised his team owner didn’t”, when the employee deliberately set out to piss of the majority of his boss’s customers, but have no problem with companies firing people for offending the social justice mob, or for that matter have no problem with the social justice mobs, then YOU are the one with a quite partisan approach to freedom of speech

              2. Will you publicly criticize every single company that fired someone for saying or doing something racist? No?

                The first hypothetical “bad thing” that springs to your mind is a private company firing an employee for saying OR DOING something racist? Wow. You sure know how to enhance your credibility as a rational, reasonable, non-racist commenter.

                Just to be clear, if the employee is doing something racist, particularly on company time, the company, then, unless you are openly, proudly racist, we and the rest of civilized humanity agree that the company can and, in most cases, should fire that employee. Ditto if it is on-the-clock speech. Now, if it is not on company time, I guess there might be some purists who don’t think a racist act (but that would depend on the act) should prompt a firing and maybe more who think racist speech off company time shouldn’t prompt a firing. But saying what a private person or company should do says nothing about free speech and, in particular, whether the government should dictate to the private person/company what speech warrants firing an employee. “Free speech” is about government regulation. What a private person chooses to do in regard to hiring, patronizing, associating with others is the exercise of free speech rights, not the squelching of it. You seem to miss this basic aspect of the free speech argument. You seem to have a childish view wherein you should be able to say whatever you want, no matter how racist, and you should be protected, BUT when someone else says or does something that offends you (like Facebook’s policy regarding permissible posts), then daddy-government should come in and protect you in that case too.

                I believe in robust free speech rights whereby I get to say what I want without government retribution and Eugene Volokh gets to delete my comment, also without government retribution, if he deems it inappropriate for the website he runs or just because he doesn’t like me. (Which is not to say that I always agree with his exercise of his right to regulate the comment section (see Arthur Kirkland), but I am not going crying to the government to make him exercise his own free speech rights the way I want him to.)

                Your confusion might also be due to your failure to understand the difference between government and private companies. What I think about speech the government should regulate says next to nothing about what sorts of hiring and firing decisions private companies should (or should be allowed to) make. If I hear my lawn guy or house builder or attorney yelling racial epithets at someone, they aren’t going to be my lawn guy, house builder, or attorney any longer than it takes for me to notify them of their change in status. And that’s what freedom is. They get to say what they want, I get to hire/associate with whom I want.

                Unless you are one of the conservatives who loves Title VII and anti-discrimination laws generally, then, maybe you think the government should tell private companies who they can hire/fire and for what reasons. You want the government to force bakers to bake a gay wedding cake (albeit none of us are quite sure what makes a wedding cake gay). You don’t strike me as that guy. If you aren’t, then feel free to apologize and retract your comment.

                I could go on, but the same line of logic extends to the rest of your comment. You want the government to tell private companies what speech they may distribute and, presumably, which speech they can’t distribute. Well, that’s the opposite of free speech. That’s forced speech. You create your private social media company and you set the rules for who can post and what they can post. That’s how free speech, the free press works. Maybe you want President Trump and Governor DeSantis to regulate private companies and the speech they promote, distribute, etc., but, again, that is the authoritarian, anti-free speech stance. If you are fool enough to have been fooled by them into thinking that’s the “pro free speech” side of this equation, then you’re too much a fool for me to reach.

                In short, you are pretending to be free speech, but you are really against it. You just want the government to dictate who gets to say what and, for bonus kicks, who has to say what (forcing social media companies to display your message, even if it is antithetical to the company’s principles and purpose in creating the forum in the first place). Or, you don’t understand difference between the government and private companies. In which case, you are the fascist (or socialist). Quite literally.

                1. “Just to be clear, if the employee is doing something racist, particularly on company time, the company, then, unless you are openly, proudly racist, we and the rest of civilized humanity agree that the company can and, in most cases, should fire that employee.”

                  Colin Kaepernick did something anti-America, on National TV, while at work, at a business whose customers are strongly pro America.

                  He deserved to be fired. he should have been fired. i’ve stopped having anything to do with the NFL because he wasn’t fired, and because they established that they hate America, too.

                  And I’m far from the only fan who’s left.

                  So if “companies should fire all employees who do something wrong that offends me” is your metric, then stop bitching about Trump

                2. “Just to be clear, if the employee is doing something racist, particularly on company time, the company, then, unless you are openly, proudly racist, we and the rest of civilized humanity agree that the company can and, in most cases, should fire that employee.”

                  Cool!

                  So anyone who pushes CRT should be fired? The people at the Smithsonian National Museum of African American History and Culture who posted their “whiteness” graphic must be fired?

                  Right?

                  Or are some forms of racism “more equal” than others?

                  I’ll explain this with small words, because you appear to be really stupid:

                  Free speech is for everyone, or it’s for no one.

                  Right now, with cancel culture and SJW mobs runnign rampant, it’s for no one.

                  The reason WHY it’s for no one is because you left wing fascist scum are doing everything you can to drive everyone who disagrees with you out of the public square, because your ideas are such utter sh!t that you know they can’t survive honest debate.

                  It really must scum to be such a completely garbage human being that you keep on pushing ideas that you know are utter crap. but you do you

                3. “Just to be clear, if the employee is doing something racist, particularly on company time, the company, then, unless you are openly, proudly racist, we and the rest of civilized humanity agree that the company can and, in most cases, should fire that employee.”

                  Senator Sheldon Whitehouse, D-RI, is a member of a exclusive whites-only “beach club” in Rhode Island. His wife is one of the owners of the club. He was called out on this four years ago, and he said he’d stop being a member. So he dropped his individual membership and went in under his wife.

                  Is this a “racist act”?

                  Have you been out there calling for his resignation?

                  Or is ALL racist perfectly fine to you, when done by Democrats?

                4. In any event, let’s sum up NOVA Lawyer’s position:

                  Kaep deliberately pissed off the customers of the business he worked for. But because he did it by pissing on America, anyone wanting to fire his is an evil “authoritarian”

                  Someone who offends NOVA Lawyer while at work should be fired, and only an evil company would NOT do that.

                  While NFL teams are under a moral obligation to keep on paying people who use their speech on company time to drive away customers, it is right and proper for “social media” companies to censor and drive out of the public square anyone who says anything that NOVA Lawyer doesn’t like.

                  Because principles are for suckers

                  1. let’s sum up NOVA Lawyer’s position:

                    The government should neither prohibit nor require speech except in very limited circumstances. Private citizens and corporations should generally be permitted to say what they want AND to not say anything they choose not to say without fear of government reprisal (but also not immune from private criticism from those who disagree). The RadioLab participant appeared to suggest government should take a role in punishing/prohibiting “bad” speech and Trump definitely suggested the same on numerous occasions. I disagree with them both.

                    Now, let’s summarize Greg J’s position:

                    principles are for suckers.

                    Among the principles he apparently believes are for suckers:

                    1. Honesty. He falsely claims that it is established that Kaepernick “deiberately pissed off the customers of the business he worked for” (more likely, he was trying to gain the sympathy and support of people who heard his message). Greg then doubles down with the egregiously, demonstrably false suggestion that I believe “anyone wanting to fire his [sic] is an evil ‘authoritarian.'” I have expressly made the point that private employers should generally be free to fire employees for on-the-job speech they don’t like, with attendant consequences with their buying public. (Which doesn’t mean I haven’t disagreed with any sports league’s decisions in this regard, only that the government has no business telling them what speech they should allow and what speech they shouldn’t allow.) The issue was when the head of government brings the weight of his office to bear on the issue and publicly advocates that people engaging in political speech that he doesn’t like should suffer consequences. That is authoritarian. There is some line, Presidents certainly may counter speech they don’t like with speech they do like, but I believe a high government official publicly advocating for a private company to fire someone for their political speech violates the spirit, if not the letter, of the First Amendment. Private citizen Greg is free to advocate for K’s firing all he likes because: free speech. (With some potential tort consequences not germane here.) Greg is not the government, Trump was the head of it. The bounds of acceptable behavior turns on that difference. Greg refuses to engage that point, assuming he has even grasped it.

                    2. Honesty part 2. Greg falsely claims I believe any company is evil that does not fire someone who offends me while at work. I only said, because Greg decided to turn this free speech debate into a racism debate, that generally employees saying and doing racist things at work should get fired. I gave an example of my broader point: “If I hear my lawn guy or house builder or attorney yelling racial epithets at someone, they aren’t going to be my lawn guy, house builder, or attorney any longer than it takes for me to notify them of their change in status.” This was in response to Greg’s “Will you publicly criticize every single company that fired someone for saying or doing something racist?” Which strongly implies Greg J is fine with both racist speech and racist actions on the job and thinks companies should not be permitted to fire them. And if anyone thinks this is unfair, I made this point earlier and invited Greg J to repudiate it. He did not. It seems pretty clear to me, he thinks racist speech and acts on company time should not be grounds for firing.

                    3. Intellectual honesty. Rather than engage any rebuttal of his points, he just asks new questions which are rhetorical and non sequiturs.

                    4. Free speech for all.

                    He wanted Kaepernick to be fired for his on the job speech, but he is incensed that someone who says OR DOES something racist on the job might be fired. Seriously, Greg? Even you can see your double standard, right? I mean, you can extend free speech principles to all private employers, but then it’s gotta be free speech for everyone, including not only your preferred racists, but also Kaepernick. And if the NFL need not suffer Kaepernick, then surely Nike can fire employees who say OR DO racist things on the job. But you won’t acknowledge this because you believe intellectual honesty is for suckers.

                    (And I acknowledge that the NFL had the legal right, assuming player contracts did not provide additional protections, to punish players for political protests during games, just as they have the right not to hire and to fire people who say or do racist things in the course of their employment as coaches, referees, players, etc. None of which is to say I agree with any particular decision they made or might make in the future. You see, I am mature enough to understand that the way I want others to act, is not the way they should be forced by government to act.)

                    Greg J, it’s clear you like to imagine what the people who disagree with you think, and to imagine it is as wild as possible, which makes it easy to win the argument in your own head. The problem is, you look the fool and fail to convince anyone.

                    I think there should be robust enforcement of the First Amendment as I do not trust government to regulate the content of our speech. You seem to disagree with that.

                    I think private people should be able to hire who they want which may be based, in part, on their expressed views. If I have a choice between a painter who expresses racist views and one who does not, I’m going to go with the painter who doesn’t. You can choose differently or place no weight on that issue at all. Your choice.

                    Where we differ is on that latter hypo. You apparently want to force private entities to allow employees to say whatever they want to say on the job without consequence (except when you want the opposite) and also require publishers to publish anything from anyone even if doing so violates their principles and they deem it counter to their business interests, moral interests, or political interests (except when you want the opposite). That’s not free speech. That’s forced speech.

                    1. 1. Honesty. He falsely claims that it is established that Kaepernick “deiberately pissed off the customers of the business he worked for” (more likely, he was trying to gain the sympathy and support of people who heard his message).

                      Bzzt

                      You don’t try to “get people’s sympathy” by spitting on that which they respect and value (the National Anthem). I’ve been to many football games in my time. And before every one of them, the announcer said words to the effect of “please rise as a sign of respect for the National Anthem”.

                      Kaep sat, then kneeled, because he was refusing that respect

                      Then he wore his cops as pigs socks.

                      We know who thinks principles are for suckers, and has no honesty: That would be you, NoVa Lawyer

                    2. What NoVa said:
                      Just to be clear, if the employee is doing something racist, particularly on company time, the company, then, unless you are openly, proudly racist, we and the rest of civilized humanity agree that the company can and, in most cases, should fire that employee.

                      What he’s claiming now: “Greg falsely claims I believe any company is evil that does not fire someone who offends me while at work. I only said, because Greg decided to turn this free speech debate into a racism debate, that generally employees saying and doing racist things at work should get fired.”

                      “All civilized humanity agrees” that you should do X (“can and, in most cases, should”). That’s a moral assessment. He’s saying that any company that does NOT fire the person must be “openly, proudly racist” and not part of “civilized humanity”.

                      Which is to say: “evil”

                      Way to go, NoVa, lying while accusing me of dishonesty

                    3. “The issue was when the head of government brings the weight of his office to bear on the issue and publicly advocates that people engaging in political speech that he doesn’t like should suffer consequences.”

                      “brings the weight of his office to bear”? really? So the President contacted the NFL in his official capacity and ordered them to fire Kaep?

                      Do we score that claim as delusional, or just flat out dishonest?

                      “I watched Colin Kaepernick, and I thought it was terrible, and then it got bigger and bigger and started mushrooming, and frankly the NFL should have suspended him for one game, and he would have never done it again,” Trump told Fox News’s Sean Hannity in an interview Wednesday night before an audience in Harrisburg, Pa

                    4. NoVa demonstrates that projection is a core left wing value:

                      3. Intellectual honesty. Rather than engage any rebuttal of his points, he just asks new questions which are rhetorical and non sequiturs.

                      4. Free speech for all.
                      He wanted Kaepernick to be fired for his on the job speech, but he is incensed that someone who says OR DOES something racist on the job might be fired.

                      Really? Where did I complain about that, at all?

                      I pointed out that YOU are a flaming hypocrite for attacking Trump, for doing what you yourself do. And given that none of the NFL players were fired from driving away the fans, but many people have been fired for pissing of the cancel culture Left, it’s rather clear that any “power imbalance” here favors the Left, not Trump.

                      Talk about not “engaging any of my points”!

                    5. “You apparently want to force private entities to allow employees to say whatever they want to say on the job without consequence (except when you want the opposite) and also require publishers to publish anything from anyone even if doing so violates their principles”

                      Talk about your complete failure to engage with anything I argued. Is it stupidity, or dishonesty?

                      1: Publishers are liable for everything their publish. If Twitter is a publisher, then that’s fine, they can restrict anyone from publishing anything on their site.

                      But that means that if they allow anyone to publish libel, or Copyright infringement, or any other crime / tort that a publisher can be nailed for, THEY are on the hook. Because they chose to publish it.

                      What NoVa wants is for Twitter et al to have all the benefits of being publishers, with none of the costs that all normal publishers have to bear

                      2: I believe that any person who tries to hijack his employer’s resources in order to advance his own personal agenda should be fired. I believe that an employee who harms his employer with his on the job actions should be fired.

                      I also believe that those on the Left are too often getting a pass on this, while the rest of us are not. And since I agree with the Constitutional ban on patents of nobility, I think this is wrong and shoudl be stopped.

                      Because the rules must be the same for everyone.

                      And no one who defends Kaep from being fired, or attacks people calling for him to be fired (looking at you, NoVa), will ever have the slightest moral leg to stand on when calling for anyone else to be fired

                    6. Greg J,

                      You intentionally or unintentionally misunderstand my point.

                      My first statement: Just to be clear, if the employee is doing something racist, particularly on company time, the company, then, unless you are openly, proudly racist, we and the rest of civilized humanity agree that the company can and, in most cases, should fire that employee.

                      Perfectly consistent with my second statement:

                      Greg falsely claims I believe any company is evil that does not fire someone who offends me while at work. I only said, because Greg decided to turn this free speech debate into a racism debate, that generally employees saying and doing racist things at work should get fired.

                      1. Just because a company doesn’t follow the course I think they should (whether allowing players to respectfully kneel during the National Anthem or firing employees who yell racial epithets at potential customers), does not mean they are evil. That might be one of your recurring problems. People who disagree with you aren’t necessarily evil. By instantly ratcheting up my comment from “should” to necessarily “evil”, you make an intentional or unintentional misrepresentation. You should apologize or, at least, clarify what is objectionable about what I actually said.

                      2. You move the goalposts. I said a company generally should fire someone who says OR DOES something evil while on company time. That was in response to you being offended that I don’t criticize them when they do. But the point here is that, while racism does offend me, it is hardly the universe of things that offend me. Claiming that I think companies generally should fire employee who engage in racism on the job is a far cry from saying that I think corporations are evil if they offend me in any way. Sometimes they offend me with inanity, or sappy, inauthentic shows of patriotism or diversity or environmentalism or what-have-you. Sometimes they offend me by being too greedy, too polluting, too socially active, too socially inactive, too political, too any number of things. Mostly, that doesn’t make them evil in my opinion.

                      So, again, you construct straw men, burn them down, and are very proud of yourself. But it is all intellectually weak or intellectually dishonest. If you care to disagree (which you very visibly don’t), that employees who yell racial epithets on the job should be fired (or at least disciplined), then please do. If you think such behavior is perfectly fine, have the cajones to say so. Otherwise, quit pretending we disagree about that.

                      But you wanted me to criticize companies for firing people who say OR DO racist things. This implies that you are offended by companies that fire racists who act out their racism on the job. If that is not your intent, I have asked you to clarify. You so far refuse.

                      Once more: Do you think it is wrong for companies to fire people who make racist statements on the job when the company believes (whether for moral, ethical, political, marketing, other business reasons, or any other reason) that it is in their best interest for the employees not to say or do racist things on the job?

                      I expect crickets. Surprise me with sense.

                    7. “1. Just because a company doesn’t follow the course I think they should (whether allowing players to respectfully kneel during the National Anthem or firing employees who yell racial epithets at potential customers), does not mean they are evil.”

                      Bullshit.

                      1: There’s no way to “respectfully kneel for the National Anthem”. Which was Kaepernick’s entire point. To show respect for America you rise for the National Anthem. Oh, and you don’t wear socks with pigs in police uniforms, either

                      2: Trump calling for Kaep to be fired was “authoritarian”. That’s evil

                      3: Those who don’t fire racists are not members of “civilized humanity”, and / or they’re “openly, proudly racist”

                      Again: evil

                      You didn’t say “I disagree with President Trump calling for Kaep to be fired, but he has every right to do that”, you said “Can you publicly criticize Trump’s authoritarian stance on free speech?”

                      When are you going to stop lying?

                    8. NoVa Lawyer

                      1: i note you don’t condemn Northam’s racism, or the Democrat’s racism for supporting him, or the voter’s racism for supporting those racist Democrats. Because concerns about being part of “civilized humanity” go away when they run into your partisan advantage.

                      2: I’ve trying to figure out if you’re really stupid, or just so lacking in principle that you can’t understand an argument based on it.

                      You called Trump “authoritarian” for criticizing Kaep’s anti-Americanism, and for Trump thinking that the NFL should have suspended / fired Kaep for puling his “I hate America” hate fest on national TV while on the NFL’s time.

                      So I brought up racism. Because I was pretty sure you’d jump up and say “of course someone should be fired for doing a racist act on company time”, being too stupid to understand the parallels with Kaep pissing off NFL customers with his flaunting his hatred of America on company time.

                      And you came right along, and did exactly what I expected.

                      Because for you it’s only “authoritarian” when the other side does it.

                      A principle is a rule you follow when you don’t like the outcome. When it comes to free speech, you have no principles

                    9. Greg J,

                      You say: You didn’t say “I disagree with President Trump calling for Kaep to be fired, but he has every right to do that”, you said “Can you publicly criticize Trump’s authoritarian stance on free speech?”

                      When are you going to stop lying?

                      But I said:

                      “To me free speech is not when you see something good and then you purposely write bad,” [Trump] insisted. “To me that’s very dangerous speech, and you become angry at it. But that’s not free speech.” (from Intelligencer, July 2019)

                      This, I think, is precisely the idea you felt was expressed in Radiolab that you don’t like. He’s representative of today’s Republican Party in a way that the person who’s name neither of us remembers and who was one of several people on Radiolab is not representative of “liberals”. But my point is not that Republicans are the horrible free speech people. Yes, Trump and his ilk are, but there are also the anti free speech people on the left. I can identify them both and disagree with them both.

                      Can you publicly criticize Trump’s authoritarian stance on free speech?

                      You want to make it about Kaepernick instead of Trump. Tell us your stance on that Trump quote. Stop lying about what I said.

                      Also, you give us this gem:

                      So I brought up racism. Because I was pretty sure you’d jump up and say “of course someone should be fired for doing a racist act on company time”, being too stupid to understand the parallels with Kaep pissing off NFL customers with his flaunting his hatred of America on company time.

                      As I have repeatedly made clear, the issue with Trump is that he was the President of the United States. That makes him different from a private company making a decision about whether to fire someone for on the job racist speech and acts, something you still won’t say you think is okay.

                      What a trap you set for me!

                      I pointed out the idiocy and partisanship of your position, because you fail to realize that the whole point of the First Amendment’s free speech protections is to give private actors freedom of speech and to limit government officials use of their position and power to punish or stifle speech they don’t like.

                      But you yammer on about Kaepernick as if it’s some sort of gotcha. (By the way, kneeling is almost universally seen as a humble and respectful thing to do: kneeling during prayer, kings and queens demanded people kneel, it’s traditional to kneel before your would-be bride to ask her hand in marriage, people kneel to beg. The symbolism is powerful precisely because it is humble and respectful, but also echoes back to “kneel-ins” in the 1960s at segregated churches (again, showing humility and respect while calling attention to injustice)).

                      There are any number of disrespectful protests. If a person wants to be disrespectful during the anthem, they could turn their back on the flag while standing tall, use obscene gestures, or any of a number of other examples. You are just wrong. Again. Or explain what would be a more respectful way to protest than kneeling? (And “don’t protest” just reveals that your real concern is the subject of the protest, not the way they were protesting.)

                      But, back to the main point, you won’t acknowledge the Trump quote I used because then you’d have exactly nothing. His quote did reveal an authoritarian, anti-free speech bent. He only believes in free speech if he deems the speech “good.” Can’t you condemn that? Why not?

                    10. “As I have repeatedly made clear, the issue with Trump is that he was the President of the United States. That makes him different from a private company making a decision about whether to fire someone for on the job racist speech and acts, something you still won’t say you think is okay”

                      Bullshit

                      Trump did not get Kaep fired.

                      Leftists routinely get people they don’t like fired, for political disagreements (see: Brendan Eich, James Damore, for some obvious examples).

                      When it comes to “actual power to destroy lives” the Left is far ahead of President Trump.

                      So, you can wank all you want about “it’s wrong when the President I hate does it, but it’s perfectly fine when someone I like does it”, but it’s garbage, and always will be garbage.

                      What matters is actions, and results. If it’s wrong to try to get people fired for political disagreements, then it’s wrong to fire people for doing something racist.

                      If it’s right to fire people for political disagreements, then it’s entirely right to fire Kaep, and to call for firing Kaep, for his attacks on America (and the same goes for any other athlete doing the same).

                      It doesn’t matter who you are

                    11. “To me free speech is not when you see something good and then you purposely write bad,” [Trump] insisted. “To me that’s very dangerous speech, and you become angry at it. But that’s not free speech.” (from Intelligencer, July 2019)

                      There’s two ways one can take this

                      1: At worst: Trump opposes “hate speech”. So, do you fight against anyone who claims there’s a “hate speech exception” to the First Amendment? Do you attack college administrators / social media tycoons who work to censor “hate speech”?

                      No?

                      Then I guess you’re in Trumps camp on that one.

                      2: At best: Trump is pointing out that lying isn’t necessarily protected by the 1st Amendment. See libel.

                      Which is correct.

                      If Trump’s an authoritarian, then so are 90%+ of college / University administrators, “reporters” at any left wing publisher, and all of the tech barons.

                      So, when you stop giving them a free pass, come ask me about Trump.

                5. “Just to be clear, if the employee is doing something racist, particularly on company time, the company, then, unless you are openly, proudly racist, we and the rest of civilized humanity agree that the company can and, in most cases, should fire that employee”

                  So, NoVa, let’s talk about Ralph “Maybe I was in blackface, or maybe I was in the Klan outfit” Northam, Democrat Governor of VA because of the voters of NoVa. You know, the guy who didn’t get “fired” after his racist acts came out, because he is a Democrat, and it would have hurt Democrats for him to go.

                  That means Democrats aren’t part of “civilized humanity”, right? And neither is anyone in VA who voted Democrat in the 2019 elections, forcing to give more political power to racist Northam, right?

                  Then there’s Sheldon “yeah, I;m part of an elite whites only club, where my wife3 is a part owner. It’s ‘traditions!’ Whitehouse, Democrat Senator from Rhode Island.

                  IIRC he’s up for re-election in 2022. Will you be pushing for him to lose the D primary? If he wins that primary, will you be pushing for his Republican opponent to win?

                  Or are you not part of “civilized humanity”?

                  1. Greg J,

                    You said this:

                    Will you publicly criticize every single company that fired someone for saying or doing something racist? No?

                    They you’re at least as authoritarian as Trump.

                    Which strongly implies you think companies are wrong to fire someone “for saying or doing something racist.” My initial response included a request to clarify whether you thought private companies should not be able to fire employees for any number of reasons, not least because the employee is saying or DOING racist things on the job. I got crickets. Asked again, crickets. So stop yelling squirrel and have the guts to answer that initial question before you ask a bunch of rhetorical questions.

                    For the record, I didn’t vote for Northam or Whitehouse, so no “gotcha” there. I won’t go further until you address this initial point that you brought into the conversation. Don’t be a coward, tell us whether you think private companies should be allowed to fire employees “for saying or doing something racist” on the job. Or tell us you are offended when they do. Or even both are possible, but answer that: 1. Should they be allowed to fire such employees; 2. Even if they should be permitted to do so, do you think they should generally fire employees saying or doing racist things on the job?

                    Explain yourself.

                    1. Which strongly implies you think companies are wrong to fire someone “for saying or doing something racist.”

                      Nope.

                      YOU condemned Trump, and expected the rest of us to condemn him too, for calling for Kaep to be fired when he pissed off the NFL’s customers by making an anti-American display on company time.

                      If this were a principled stand, rather than a “you like people who hate America” stand, then YOU would be opposed to companies firing people for pissing off their customers by being racists.

                      But it wasn’t a principled stand. Because there’s no possible principle under which you can arguing that firing Kaep is wrong, but firing the racist is right.

                      Which was my full and entire point

                  2. “To me free speech is not when you see something good and then you purposely write bad,” [Trump] insisted. “To me that’s very dangerous speech, and you become angry at it. But that’s not free speech.” (from Intelligencer, July 2019)

                    This is the Trump quote I said was particularly troubling. Is it consistent with your views of free speech or not?

                    Because there’s no possible principle under which you can arguing that firing Kaep is wrong, but firing the racist is right.

                    Of course, there is. You are confused as to what the discussion is even about.

                    But first things first. I didn’t say firing Kaepernick was wrong. I said that the President of the United States calling for a private person to be fired from a private job because that person said something the President of the United States doesn’t like is inconsistent with the principles of free speech which includes not having the government use its power to punish (or use their power to coerce or encourage punishment of) speech government officials don’t like.

                    Further, a person can have a principle that anti-racist speech should not be grounds for firing (even if it pisses off customers) and racist speech should be grounds for firing (even if it does piss of customers), because the primary concern of the person making the hiring/firing decisions is anti-racism. That’s just one example of a principle that refutes your “no possible principle”.

                    And there are an infinite number of variations whereby a person could value Kaepernick’s message but not the racist’s message, such that firing Kaepernick would violate the principle, but firing a racist for racist on-the-job speech would not.

                    But, the important one of those principles in the context of this discussion is the first one I mentioned. One can adhere to the principle that government officials should not advocate for private companies to fire private employees for speech the government officials don’t like (and private companies should not buckle to those authoritarian requests), but also that private companies should be able to hire and fire people without government interference based on the content of employees’ on-the-job speech.

                    Do you reject that principle or are you just pretending to because you are desperate to avoid admitting your initial point was, charitably, misguided?

                    If you stop viewing everything through a partisan lens, you’ll make fewer of these embarrassing errors.

          2. Are you sure?

            I’m quite sure. If for no other reason than the fact that people using peyote isn’t a stick in the eye of “regular” Christians.

            Look, it’s quite simple: there are certain values that liberals prioritize (primarily, in this case, government-enforced egalitarianism). A member of a small religious minority asking for exemptions from laws of general applicability does not pose a threat to those values. But a member of a mainstream religious movement who asks for exemptions from such laws does.

            Or to put it more concretely, the Native American Church at issue in Smith had about 250,000 members, and no political power. The Catholic Church has about 70 million members. Giving the former exemptions from general laws just couldn’t affect many other people. Giving the latter exemptions from general laws could.

            I don’t agree with liberals on this point because I have different values and prioritize them in different ways, but it’s not hard to understand where they’re coming from.

            1. And also, liberals aren’t nearly as committed to consistent enforcement of the drug laws as they are to consistent enforcement of anti-discrimination laws and COVID mandates.

              Liberals tend to feel that the fact that laws against race discrimination not only stopped the practices but basically changed a bunch of hearts and minds was a huge accomplishment. That occurred in part because there weren’t religious exemptions available (which, in a different world, Southern Baptists, Mormons, etc., might have availed themselves of).

              So if there are big religious exemptions to LGBT discrimination laws, the basic fear is that everyone (including even large corporations, after the Hobby Lobby case) who wishes to discriminate against LGBT people will simply claim them, and you will end up with ineffective anti-discrimination laws.

            2. I am very amused at the way you disprove your on thesis

              “Using peyote” was “good” because it was something abnormal, which is to say it was done by very few people, and opposed by normal people.

              Which is to say: they supported it solely because the Christians weren’t doing it, and it gave them a chance to say to Christians “this dinky little religion is just as important as you are!”

              Which is to say, it was entirely about “shoving a stick in the eye” of Christians.

              Philly’s “you must endorse SSM if you want to be part of foster care / adoption” was just another attempt to “shove a stick in the eye” of Christians. No same sex couple had ever applied to CSS. Any one that wanted to adopt had 20 other agencies to go to.

              The policy was not in any way, shape, or form about helping same sex couples get to foster and / or adopt children. It was solely about attacking the Catholics, and trying to force them to accept the Left’s beliefs as superior to their own.

              In short, it was the same as it always was: the Left’s only principle is “all power to the Left”

              1. What were the things Christians wanted to do but couldn’t in 1983?

                You’re also defining Christian both broadly and narrowly – as a benighted majority, and as a specific group of political Christians. And then you narrow further to the subset of Catholics that are at issue in this particular case.

                And then there is your telepathy. Can you think of any reasons why a policymaker might think a secular society is the proper goal other than persecuting people? I sure can – some of it due to Supreme Court precedent!

                Your principle is ‘I’m always a victim.’ That’s not the left, who has very little power.

                1. “Can you think of any reasons why a policymaker might think a secular society is the proper goal other than persecuting people?”

                  1: Not when they think that “Native Americans” whose religion requires them to take peyote should be free from drug laws.

                  Not when they think that Trump’s “Muslim ban” was unconstitutional.

                  When you’re entirely in favor of “religious freedom”, except when it’s being done by believing Christians, then it’s about your hatred of Christianity.

                  2: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” So to the extent your “secular society” requires “prohibiting the free exercise thereof” your desire is unconstitutional

                2. “What were the things Christians wanted to do but couldn’t in 1983?”

                  Ban abortion

                  Have prayer at public schools.

                  Have nativity plays at public schools, or have nativity displays on public land.

                  Those just off the top of my head

                  1. “What were the things Christians wanted to do but couldn’t in 1983?”

                    Ban abortion

                    This is a bad example because, just for starters, this is to stop people doing something, not permitting Christians to do it. You are really bad at understanding the difference between using government to force other to do what you want them to do (carry a pregnancy to term, print your speech) and putting limits on what the government can do (allow people to choose what they do with their own body, choose what to say or who to let use their megaphone).

                    Have prayer at public schools.

                    A right wing fever dream. No one stopped prayer at public schools. What is not allowed is using government power to force people to pray when they don’t want to pray. It is unconstitutional to stop anyone from praying at a public school in their own private, capacity. It is similarly unconstitutional for school administrators, etc. to force people to pray.

                    Have nativity plays at public schools, or have nativity displays on public land.

                    There are many of those, so Christians got what they want in that regard. But what you can’t do is get government to favor your Christian speech over that of other religions or the non-religious. So, if they can have a nativity display, then other religions should have equal opportunity to put up displays with their message. What Christians can’t do is have the government subsidize only their nativity display, but not the Isis and Osiris display.

                    Those just off the top of my head

                    Let’s please don’t go deeper inside. What I’ve seen of the top is dark enough.

                3. “That’s not the left, who has very little power.”

                  Really?

                  Then why are abortion, gay sex, and gay marriages “Constitutional Rights”?

                  Because none of them are actually anywhere in the US Constitution

              2. Jimmy the Dane argues that black people are just a niche who aren’t “real Americans.” Greg J argues that American Indians aren’t “normal people.”

                I’m beginning to sense a trend.

                1. “I’m beginning to sense a trend.”

                  That would be your inability to understand math / statistics / numbers in general?

                  To quote you:
                  the Native American Church at issue in Smith had about 250,000 members

                  That would make them, at the time, roughly 1 person in 1000.

                  It matters not whether their actions are right, wrong, good, bad, stupid, or smart. They’re 1 in 1,000, that makes their actions “not normal”.

            3. This was basically why I pointed out that the “freedom from religion” symposium taking the position “America is not a Christian nation” is essentially an argument that these sorts of exemptions are OK. If you have a handful of peyote smokers, Amish high school drop outs, whatnot, who cares? It’a not going to have a lot of effecton very many other people. The only possible reason to care is when the people getting the exemptions dominate, or are at least a big influence on, the culture.

              So to argue they don’t and aren’t is, really, to argue nobody should care.

        2. Yes, EXACTLY because it was and is a “stick in the eye” to normal Americans.

          Because one thing has never changed: the Left hates normal Americans

  4. Beside the culture-war aspects that Volokh discusses, how much might the end of the Vietnam war have contributed to the shift in rightist and leftist positions on religious exemptions?

    During the war, religious reasons were often offered to support various anti-war activities, e.g. draft evasion, refusal to pay taxes to support the war, civil disobedience both destructive and non-destructive, etc. To the hawkish right, religious exemptions from laws might’ve been seen largely as a device whereby random pinkos could escape their patriotic chore; to the dovish left, they were a means of resisting a set of deeply immoral government policies.

    The end of the war and the draft might well have eliminated much of the incentive for leftists to support religious exemptions, and much of the incentive for rightists to oppose them.

  5. This happens a lot. For instance, liberals used to defend the constitutionality of gerrymandering, most likely because Democrats used to have a hammerlock on the House and gerrymandering solidified it, and because it could be used to create majority-minority districts.

    Now liberals not only dislike gerrymandering, but accuse anyone who is skeptical that it is unconstitutional of being inalterably opposed to voting rights.

    People aren’t nearly as attached to their constitutional theories as they claim they are. When the alignment of interests change, they change.

    1. People aren’t nearly as attached to their constitutional theories as they claim they are.

      Of course not. This is something that everyone except Constitutional Law professors seems to understand.

    2. No, Leftists aren’t attached to their Constitutional theories, or any other theories, because they are people utterly without principle, who only have a lust for power

      What you see the Right do is argue against something, lose, and then make the Left pay for their “victory” by having it shoved down their throats repeatedly, going the other way.

      IOW, GOP said “all qualified SC nominees get confirmed”. Dems said: No, you can’t have Bork

      So GOP said “fine, no Democrat nominee deserves a vote, if we can actually stop him.” Because the way you teach people “principles are valuable” is that you make them hurt any time they nuke principles.

      1. You’ve described being unprincipled as being principled, so long as it owns the libs.

  6. When I consider it, I believe that the judicial liberals made useful contributions as far as incorporating much of the Bill of Rights and helping develop the pre-Smith idea of freedom of religion.

    (It might be useful to point out that Justice Douglas can’t be fairly credited with the Sherbert/Yoder doctrine because he dissented in the Yoder case)

    Now, by the standards of other continents, both “progressives/liberals” and “conservatives” are liberals. But in the American context, as in other contexts, I think we can sum up the great debate with Ambrose Bierce’s cynical formulation:

    “CONSERVATIVE, n. A statesman who is enamored of existing evils, as distinguished from the Liberal, who wishes to replace them with others.”

    http://www.thedevilsdictionary.com/c.html

    The progressive/liberal in America is generally going forward with his/her plans of national redemption, sometimes identifying actual abuses to correct, but ultimately replacing old abuses with new ones. As used in practice, the “conservatives” are the ones who dedicate any serious effort to opposing one or more of current progressives’ urgent projects.

    (So, to take a Father’s day Example, someone who in an earlier era would have been called a New Deal liberal or radical for wanting the government to support fathers of large families and protect them from the vicissitudes of the market, would today be considered an ultra-conservative misogynist trying to enact the Handmaid’s Tale. His (or her!) position hasn’t changed, and that’s just the point – if you don’t change to fit the latest bright progressive idea, you will be cast into the outer conservative darkness.)

    In the freedom of religion context, I would speculate that justices like Brennan were on guard against a mainstream-religion-dominated government trampling on minority or small religions, like the 7th Day Adventists or Amish (in the era before the Warren Court, the Jehovah’s Witnesses were the minority in question). Justice Douglas didn’t want to protect the Amish, because he thought their kids should be taken from them to be subjected to institutionalized schooling, instead of puttering around learning useless skills like farming and building barns, etc.

    I suppose the future of progressivism was with Justice Douglas, even though at the time he was setting himself against many of his fellow-liberals.

  7. A useless analysis. It sounds like a commercial outline for a law student who has no idea what the “free exercise” clause means or what the “establishment clause” means. He’ll probably get an “A” unless the exam requires discussion of actual cases. In which case he’ll get a “D”.

    You have to discuss the facts of each of the cases you cite. Perhaps they fit the doctrinal lines you set up, perhaps they don’t.

    1. Interesting that you should find it useless. I tend to think otherwise. Quite a few comments brought additional arguments. Also, one can never repeat often enough that people tend to aggrandize their arguments by referring to “sacred principles” only to dump those when those principles become inconvenient.
      Volokh alludes to John Paul Stevens’ trajectory from conservative to liberal. (I sometimes wonder if he didn’t stay put while US society shifted.) But to this day I’d like to see a monograph on why he wrote against his self-professed political inclination in Kelo. That could elucidate the difference between the law and politics that too often is lost in today’s political AND judicial battles.

  8. I think I need a primer or explanation on what people mean by “liberal” or “conservative” justice.

    Does it mean a justice who is working toward L/C policy goals? Or one whose judicial attitude tends to result in L/C policy goals (regardless of intent)? Or does it mean something broader about the judicial philosophy generally? Or a justice who was appointed by a L/C official?

    People use the labels like they’re obvious statements of fact, which seems crazy to me.

    I get the feeling different people use the labels to mean different things. I don’t know what Volokh means. I’d be grateful for a whole post explaining this. Maybe one exists already?

  9. “The bipartisan Religious Freedom Restoration Act: Smith was denounced from both sides of the aisle, and providing a broad umbrella of religious exemptions became a clearly bipartisan position”

    Not really. Smith was in 1990. RFRA didn’t happen until 1993, when the Republican President (Bush 1) was replaced with a Democrat one (Clinton).

    Yes, lots of Republicans voted for it once the Democrats made sure it was going to be passed and signed. But it was a Democrat project.

    Because it was a way to attack “normal people” laws in support of teh “not normal”

    When it became a way to protect normal people from attack by left wing extremists, THEN it became a “bad thing”.

    Because the Left doesn’t have principles, it just has a lust for power

    1. It was sponsored by a Catholic.

  10. Prof. Volokh, I have a nagging recollection that we may have met at a symposium in NYC shortly after Smith. Do you recall any such occasion?

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