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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.]