In Light of Tandon and Fulton, Do Exemptions to Anti-Discrimination Laws Undermine The Government's Compelling Interest That Justifies Burdening The Free Exercise of Religion?

An unanswered question from Hobby Lobby and Masterpiece returns.

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In 2017, I began writing a paper titled Compelling Interests under the First Amendment. I argued that "if the state carves out exemptions from a policy, the case for a compelling interest is undermined." This issue arose in Hobby Lobby. The Court--to keep Justice Kennedy's 5th vote--would only "assume that the interest in guaranteeing cost-free access" to contraception was compelling for purposes of RFRA. However, this assumption was very precarious given the fact that HHS carved out so many non-religious exemptions to the mandate, such as grandfathered policies. Solicitor General Verrilli dodged Chief Justice Roberts's questions on grandfathering. Here is an excerpt from Chapter 16.4 of Unraveled, pp. 231-232:

But the biggest point of contention during oral arguments concerned the grandfather clause. Health insurance plans that were in existence before the mandate came into effect were grandfathered, and were not subject to the mandate unless they were changed. (Ironically, Hobby Lobby's plan lost its grandfather status after the Greens removed coverage of Plan B, which in turn made them subject to the mandate to cover Plan B). How could the government's interest be so compelling, Hobby Lobby argued, if thousands of grandfathered plans nationwide were exempted? One of the lawyers for Hobby Lobby told me that when the government has a compelling interest, you don't exempt over half of the people that it applies to. And if the interest is not compelling, under the RFRA analysis, Hobby Lobby would be entitled to a religious accommodation. The government took that argument very seriously. A senior DOJ attorney acknowledged that "we didn't have an iron-clad answer on grandfathering."

Chief Justice Roberts exploited this liability with a series of questions. Roberts asked the solicitor general, "Can you make a representation to us about how long the grandfathering is going to be in effect?" In other words, how long would the grandfathered plans – that are not subject to the mandate – stick around? Verrilli would not answer the question. "I can't give you a precise figure, [but] there's a clear downward trajectory." Ironically enough, the president's false promise that people can keep their plans provided the basis for the solicitor general's answer. Every year, more and more old, noncompliant plans would be cancelled. Invariably, as plans were changed, they would lose grandfather status and become subject to the Affordable Care Act's mandates. But Verrilli could not say that in Court. All he could say was that "[t]here's significant movement downward every year in the numbers." Paul Clement pounced on this concession, which he called "devastating." When the "government pursues compelling interest, it demands immediate compliance. It doesn't say, 'Get around to it whenever it's convenient.'"

But a senior DOJ attorney told me that the government had "a pretty good counter punch" to the grandfathering argument: Title VII of the Civil Rights Act of 1964, which prohibited workplace discrimination. Even five decades after its enactment, the solicitor general explained to the Court, "employers with 15 or fewer people are [still] not subject to that law, and that's 80 percent of the employers in the country." As a result, Verrilli continued, as many as "22 million people … are [still] not within the coverage" of the landmark discrimination law. He asked rhetorically, "No one would say that because the coverage is incomplete in that respect, that Title VII doesn't advance a compelling state interest."

Well, I made just that argument in my paper--years ahead of Tandon and Fulton.

Ultimately, after oral argument in Masterpiece Cakeshop, I put the paper on hold. I suspected--wrongly--that the Court would opine on the question of compelling interest. Alas, the Court didn't address the compelling interest question. The Court wrote a wafer-thin opinion based on animus, and dodged the difficult Free Exercise issues. Nearly four years have elapsed since I last touched the paper, but I recently dusted it off.

Two weeks ago, a federal district court in Texas decided Bear Creek Bible Church v. EEOC. This post-Bostock case considered the interaction between Title VII and religious exercise. Part of the opinion expressly considers the issues I flagged years ago: does the government have a compelling interest if it creates many exemptions to that policy? Fulton and Tandon suggest that the answer to this question is no. Here is an excerpt from the court's opinion:

Defendants' argument that they had an interest in eradicating all forms of discrimination is undercut by their willingness to grant exemptions for other purposes. By its express terms, Title VII does not apply to every employer. For example, for no apparent reason other than administrative convenience, Title VII exempts businesses with fewer than fifteen employees. See 42 U.S.C. § 2000e. Notably, Title VII overtly permits employers, with a specific statutory exclusion, to fire an employee if the employee is a member of the Communist Party of the United States or affiliated with a Communist-front organization. See id. § 2000e-2(f). Title VII also categorically permits employers on or near Indian reservations to discriminate on the basis of race or national origin in favor of Indians. See id. § 2000e-2(i). These exemptions are "secular" in nature. Since Defendants extend these exemptions to nonreligious decisions, they must treat requests for religious exemptions the same. See Tandon, 141 S. Ct. at 1296 (holding that a government regulation is not neutral and generally applicable whenever they treat any comparable secular activity more favorable than religious exercise).

In my draft paper, I identified very similar exemptions that would challenge the compellingness of non-discrimination laws. Here is an excerpt, with footnotes removed:

To this day, the primary federal employee discrimination statute—Title VII of the Civil Rights Act of 1964—only applies to firms with at least fifteen employees. As one scholar observed,  "there is little in the record to suggest a studied effort to arrive at precisely the right threshold, other than to find the threshold leaving enough small business owners outside the Act's coverage to make the new law palatable." Later efforts to drop the threshold from twenty-five to eight failed, the limit remains at fifteen to this day. According to one scholar, "[f]irms small enough to be exempt from Title VII employ more than 19 million employees-equal to the entire population of the State of New York or more than sixteen percent of the national workforce." Likewise, the majority of states have implemented minimum thresholds with respect to their employment discrimination laws. Further, all states—including the seventeen states that do not impose a size threshold—created other carve-outs for religious or other private organizations. [JB: These numbers were accurate in 2017, but I cannot account for updated statutes]

Likewise, the Fair Housing Act exempts from its provisions landlords with five or fewer rooms for rent. This exemption stems from the famous Mrs. Murphy exemption, whereby members of Congress sought to protect the hypothetical boarding-house owner, who did not wish to rent her small number of rooms to certain people—even if based on their race or gender. As one commentator observed, "implicit was an understanding that the First Amendment right at stake was specifically Mrs. Murphy's right not to associate with African Americans."Despite this obvious backdrop, Attorney General Nicholas Katzenbach supported this threshold, rather than an "exemption based upon dollar receipts or delivery volumes . . . since there is considerable opposition to this sort of exclusion." According to estimates at the time, the Mrs. Murphy exemption would exclude nearly two million housing units, and that total was predicted to rise to sixty million. This rule remains on the books to this day. As Professor Wilson observed, "exemptions for individuals who were posited to be mere racial bigots remain in the law fifty years later," even as "Americans have become increasingly intolerant of racial intolerance." At the state level, the courts have split about whether landlords can decline to rent an apartments based on religious liberty objections.

This survey presents an inconvenient truth: on the federal and state level, laws are pocked with a series of exemptions that openly tolerate limited exercises of discrimination in the employment and housing contexts. And far from incrementalism, these exemptions have existed for decades. This survey raises another difficult question: can an interest be deemed truly compelling if the federal government, and the majority of states, create so many exemptions?

At some point, I will return to this paper. If you think I write a lot, just imagine all of the things I start writing but never publish!

NEXT: Today in Supreme Court History: November 16, 1939

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  1. Well, maybe hold off just a little bit.

    As the oral arguments in Ramirez just showed us, the conservative jurists who were championing religious rights who have never, you know, had to deal with the actualities of these cases on the ground for very long ... are suddenly realizing that there was a reason that Scalia (who wasn't exactly anti-religious) wrote Empl. Div. v. Smith.

    You have a limited number of choices- either (1) you allow legislatures to pass laws of general applicability that people will have to follow, so long as they aren't targeting a religion, or (2) you allow every single person (and/or legal entity) to claim that they are an island, exempt from the laws that govern others, or (3) you allow courts to perform searching examinations of what beliefs are true and not true.

    It's not the (1) is the best option, it's that in a functioning society, (1) is the least bad.

    1. Q. Why not just recognize Freedom of Association and leave the bigots to mark themselves as bigots so that everyone else can shun them?
      A. Because the control freaks couldn't control society, and statists wouldn't have yet another excuse to grow government.

      1. Exactly. Freedom of association is an actual constitutional right, I don't think that the government ever has a compelling interest in violating constitutional rights.

        The 14th amendment barred GOVERNMENT discrimination, not private.

        1. "Freedom of association is an actual constitutional right"

          Fun fact, Brett, since you are always such a big fan of the Constitution.

          Go ahead and find the freedom of association in the text. Go on!

          You can't. Because it's not there. It was "found" or "discovered" or "invented" by the Supreme Court. Wait, which Supreme Court you ask?

          The Warren Court.

          ...you're welcome!

          (Sorry, couldn't resist ....)

          1. And, of course, the reason why we don't just recognize unlimited freedom of association is because libertarians are wrong that the only threat to civil rights comes from the state. Private action- especially concerted private action- can impinge on civil rights as well.

            1. the reason why we don't just recognize unlimited freedom of association is because libertarians are wrong that the only threat to civil rights comes from the state. Private action- especially concerted private action- can impinge on civil rights as well.

              Yes, of course, there are any number of way in which private action can impinge on my civil rights. If you bash me over the head and take my wallet, I'd say that impinges on my rights. I would very much like the government to protect me from you. But if you tell me to stay away from your store / restaurant, I don't think it's proper for the government to force you to let me in. I see a clear distinction.

              1. What's the distinction? NAP (see Brett Bellmore's comment below).

          2. "The Warren Court. ...you're welcome! (Sorry, couldn't resist ....)"

            True enough, but there it is.

            1. True enough, but there it is.

              Not so much. In fact the characterization as "invented by the Warren court" is more than a little moronic. The bill of rights was not meant as a complete enumeration of the rights of free men. It goes as far as to state this itself in the 9th amendment. The humorous part is that Hamilton's argument that having a bill of rights invited the dishonest to appear and claim that since a right wasn't mentioned it didn't exist. His predictions seems right on target.

              The Constitution was designed to be as much a limitation on federal power as it was a blueprint for the federal system. The 10th amendment states that powers not expressly granted to the federal government are reserved for the states. Noting Loki's observation that the natural right of freedom of association is found nowhere in the Constitution, go ahead and explain how the Federal Government acquired the power to regulate it.

    2. #4 - You read freedom of religion as freedom of organized religion and ditch the individual beliefs doctrines.

      1. Awesome! So what you're saying is that established religions get a pass, and ones that don't ... don't.

        So if you don't agree with the Pope, a court can say you're not Catholic enough. Sounds good to me!

        1. cult n A religion with no political power. Ambrose Bierce, The Devil's Dictionary

    3. Also you seem to be forgetting that tons of states have RFRA and don't seem to have the problems you are positing.

      1. Sure. But that's because this has just started.

        The ADA passed in 1990. Over time, and with increasing frequency, people realized that they could use the ADA to bring their pets with them wherever they want. Because people suck.

        Does everyone? No, not yet. But it's increasingly common. I wish people didn't abuse the law. But you know they will. After Hobby Lobby, we had Eden Foods in 2013. Remember that? Well, in that case, the CEO gave numerous interviews where he said he didn't want to give certain health care coverage because he was a libertarian.

        But the government dropped the case, because you can't get a court to label someone's beliefs incorrect, false, or say that they are lying liars.

        So yeah- if you believe that people are naturally good in America, and that they won't choose to start lying about their religion because they don't want to do things, then not only do I have a bridge in Brooklyn to sell you, I have a whole bunch of "I don't want to get vaccinated because the Bible said so" lawsuits.

        This is just beginning.

        1. Sure, it's just the beginning, but I think you've misidentified what it's the beginning of. Sure, people suck, but so does the ADA, and it was the ADA that gave sucky people a weapon to allow them to bring emotional support warthogs on airliners.

          And sure, you had Hobby Lobby, but only because you had the ACA dictating the features of health insurance.

          People will always suck, but you don't have to be perpetually creating new agencies and laws to amplify the suckage.

          1. Then elect people to repeal laws. Seriously.

            The way to fix it isn't to let every person choose their own exemptions. That's not how laws work.

            This is a point so obvious to the functioning of society that it has been well-know since we had societies.

            Moreover, it strains credulity that I have to explain that people suck to a supposed conservative- but, hey, it's not like "conservatism" is a feature anymore, is it?

            1. It's also interesting that Brett thinks the ADA sucks (presumably because it helps disabled people whom Brett would rather get screwed over) but thinks RFRA's are great (presumably because they help right wing Christians who want to screw over people whom Brett wants to screw over).

              That's hardly a principled defense of the principle of exemptions.

              1. I think ADA sucks because it regulates the private sector, and RFRA's are great because they regulate the government. And I think the private sector should be largely free to do as it likes so long as the NAP is respected, and I think the government should be tied up in chains, because the government is just one big systematic NAP violation.

                And, yeah, if the ADA could be read to require private companies to accommodate BS like "emotional support animals", it sucks.

          2. The ADA does not regulate and never has regulated travel on air carriers; the Air Carrier Access Act regulates air travel. The ADA has never required accommodating emotional support animals; the DoJ service animal regulations, limited to dogs and miniature horses, specifically exclude emotional support animals from treatment as service animals. DoT enforces the Air Carrier Access Act, and recently revised the ACAA regulations to exclude emotional support animals from required accommodations, paralleling the ADA service animal regulations. Only the Fair Housing Act requires accommodations for emotional support animals, including not just dogs but all common (and some uncommon) household pets.

            If there's a scam left for air travel or the vast array of public accommodations and government services in which accommodations extend only to service dogs and the very occasional miniature horse, it is the misrepresentation of pet dogs as service animals, aided by a host of websites that, for an advance payment, will "certify" that your dog is a psychiatric service animal.

            1. ADA rules were changed, or formally clarified, a few years ago to limit service animals to dogs and horses. Without that limitation a claim that your pet gerbil was a service animal would put a business in a bad position, because you face little or no consequence for lying and they face a large risk for saying no gerbils.

          3. They wouldn't allow a support warthog on a plane. Those things can be hundreds of pounds.

            That case from a few years ago where a guy arrived in the US just fine on a new zealand air flight with his support hedgehog (the size of a small to medium dog) couldn't board the return flight carrying his support hedgehog. The US wouldn't let him. He had to ship the hedgehog back as freight, and he claims the whole thing caused him to have a nervous breakdown.

            If the US isn't allowing hedgehogs on planes, there is no way they'd allow a warthog.

        2. " Because people suck. ... "
          You can say that again. But my inpressions is that at least some airlines will only grant boarding to certified service animals. No more ducks, snakes or alligators.

    4. In revisiting Employment Division v Smith, there's a key difference.

      There weren't exemptions in Smith. Of any sorts. There were no medical exemptions. There were no reclassifications, or "this type of religious behavior is most like this narrowly defined secular behavior, but not that secular behavior".

      The issue we've run across is really that Smith is being misapplied. If something is "generally applicable" but then has "exceptions" or "qualifications" or 'reclassifications"... Then it's not generally applicable. And Smith doesn't apply.

      1. Since almost all laws have exemptions, Smith is in effect overruled if we accept Blackman's viewpoint (and overruling Smith is what Blackman desires).

        1. If you give exceptions, enumerated rights stand at the front of the line.

          This assumes laws of general applicability is good doctrine.

          People of certain western religions should be able to smoke peyote.

          Taxes on churches affects ability to worship, especially if the church is seized.

          I don't know why people slobber and fall all over themselves to accept this idea. Well, yes I do. The historical problem with government all along: tribal hurting of one's enemies, as shoe-pounded by a thug, to get elected, so you can be corrupt.

          Like Relativity and Quantum Mechanics, this theory has tremendous predictive power, and passes all tests thrown at it.
          "General applicabilty" doesn't get around "Congress shall pass no law".

        2. But all laws don't have exemptions.

          There's no "rape exemption" for medical reasons (or any other reasons I can think of).
          There's no "human sacrifice exemption"
          And in Smith...there was no exemption for smoking Peyote for medical, religious, or any other reasons.

          Sure. Plenty of laws do have exemptions. Taxation laws have plenty of exemption for non-profit status, for example. And when you have those exemptions, you need to include religious exemptions in the list. But some don't have exemptions. And if there truly aren't any, for any reason, then it is generally applicable, and Smith may apply.

          1. It sounds like you're saying that in order for a law to be generally applicable it really needs to be universally applicable, or else religion gets to be the +1 to any other exemption. Any exemption is also a religious exemption.

            Laws are like swiss cheese with carve outs. Religion seems to be the perfect business. Let all of the other interest groups spend millions lobbying for their carve outs, and then religion just piggybacks on to all of them. That's way better than the most favored nation model, and much cheaper too.

            1. "Let all of the other interest groups spend millions lobbying for their carve outs, and then religion just piggybacks on to all of them. "

              It's actually precisely because of this, in part, why the first amendment exists. Religious organizations often don't have the power to spend "millions" for their carve outs. They don't have the power of the film lobby in California or the Casino lobby in Nevada. Many times, it's just a bunch of poor people who are considered "backwards" in their views, so it's easy to override their objections. They're "different". They aren't powerful. You don't really care about them, like you do about the Casino lobbyists. So, it's easy to discriminate against them. To ignore their objections, while granting the exceptions to the rich and powerful.

              In in order to stop this behavior, this way to discriminate against religion, that the first amendment exists. To protect minorities who aren't rich and powerful, with the ability to spend millions in lobbying for special favors.

        3. Josh R: It is possible that the majority had it wrong, isn't it? = Smith

          1. I think they got it right. Under Tandon only exempted comparable secular conduct renders a law not generally applicable. Fair enough. But, deciding whether the secular conduct is comparable requires courts to engage in normative and practical judgments that ought to be reserved to the elected branches.

      2. Yes, the ol’ “force exemptions into the law, then claim the exemptions prove the government has no real interest in the matter” flim flam. A classic.

        1. It's not that the government "has no real interest". It's that it's been made clear that exemptions can be made. And if they can be made for one reason, they can be made for a different reason.

          Let's pretend I have a religious belief that requires me to own a nuclear weapon. I worship at the altar of the Children of the Atom. Can I have a nuclear weapon?
          Well, there are no exemptions that allow people to have nuclear weapons. So the government can ban it. Under Smith, there's no problem there (among other reasons).

          Hypothetically however, let's pretend there's a rare medical condition which requires the patient to keep 60 kg of weapons grade plutonium in their home. The government makes an exception for that. Why can't the government make the same exception for my religious belief?

          That's the problem there.

    5. Personally I think (3) is least bad. But that's because I am quite cynical about religion and people's professions of belief, and because I think exemptions from generally applicable rules are serious business and people seeking them have the burden of proof.

      But I agree with your point. There isn't some magic formula where you can hand out exemptions like candy to Christian conservatives without arriving at a bunch of bad results. And (1) is better than (2) for sure.

    6. You're arguing a different point. If the government mandates everybody get Ivermectin shots to protect against COVID-19, that's a generally applicable law and the courts might well apply it to people whose religion believes nematodes deserve equal rights. If the government mandates everybody get Ivermectin shots except those who work night shifts, that opens the door to a religious exemption too. Josh is making the second point.

    7. loki13, when you say, "(1) you allow legislatures to pass laws of general applicability that people will have to follow, so long as they aren't targeting a religion", can you tell me what you mean specifically by targeting a religion?

      What exactly crosses the line, from your perspective?

    8. The phrase "general applicability" in your #1 is doing an awful lot of work.

      Can a law riddled with exceptions be "general applicable"? I think not.

  2. The "pretty good counter punch" is not actually all that good. There are a number of reasons why Title VII is not and still should not applied to small businesses. For example:

    1. Much evidence of workplace discrimination is statistical. However, when your total possible population is less than 16, the standard statistical "proofs" just don't work. Random noise in the data overwhelms any possible evidence.

    2. While 80% of employers looks like a big number, by Verrilli's own admission, that's only 22 million people - not a big number in a country our size. When you add in the fact that many (possibly even a majority) of those 80% are one-person operations, that number gets even smaller. (Yes, you have to exclude all the one-person operations. By definition, you can't discriminate against yourself.) Many more of those small employers hire only family - again, a scenario where the discrimination prohibited by Title VII just doesn't happen.

    Those are not exceptions that undermine the compelling state interest. Those are exceptions that acknowledge either the practical impossibility of enforcement or the fundamental inapplicability of the law to that situation.

    I'll concede that the choice of 15 (as opposed to 25 or 8) is arbitrary and still makes it a 'counter punch' but once you really dig into the statistics, it's not a very good one.

    1. Once I remembered the right keyword, I was able to confirm it. The self-employed make up approximately half of the Verrilli's 22 million and a large majority of the 80% statistic.

  3. Rather than look at this as exemptions from a compelling state interest, what happens if you frame this as the conflict between two compelling state interests?

    Society has an interest in both eliminating discrimination and providing an environment for the free exercise of religion? Or discrimination and free association? Or discrimination and promoting a healthy economy (one characterized by lots of small businesses)?

    1. In Heart of Atlanta Motel, the Supreme Court characterized civil rights laws as being morals legislation, similar to laws against prostitution, gambling, and other similar laws.

      Morals laws are classic examples of rational basis legislatuon. Congress has no more fundamental an interest in eradicating the “scourge” of same-race or same-sex preference from (or encouraging racial or gender-diverse environments in) interstate commerce, its sphere of regulation, than a state does in eradicating it from (or encouraging diverse environments in) domestic relations, its sphere.

      1. That's not what SCOTUS said. What SCOTUS said was that even though discrimination was deemed a moral wrong, that didn't mean that this wasn't commercial regulation.

        1. It is indeed what the Supreme Court said. The idea that morals legislation is somehow a bad thing to be excused, constitutional “even though” being morals legislation, is a reading you are placing on the opinion. It just isn’t there. The Court said it is constitutional BECAUSE it is morals legislation, not despite. It is just like other previously upheld legislation regulated morals in interstste commerce.

          Many states put discrimination laws in their morals codes, among the laws against fornication and the like. Massachussetts put its practically right next to its sodomy law. They were generally considered similar sorts of things.

          1. It is indeed what the Supreme Court said. The idea that morals legislation is somehow a bad thing to be excused, constitutional “even though” being morals legislation, is a reading you are placing on the opinion. It just isn’t there. The Court said it is constitutional BECAUSE it is morals legislation, not despite. It is just like other previously upheld legislation regulated morals in interstste commerce.

            No.

            "That Congress was legislating against moral wrongs in many of these areas rendered its enactments no less valid. In framing Title II of this Act Congress was also dealing with what it considered a moral problem. But that fact does not detract from the overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse. It was this burden which empowered Congress to enact appropriate legislation, and, given this basis for the exercise of its power, Congress was not restricted by the fact that the particular obstruction to interstate commerce with which it was dealing was also deemed a moral and social wrong."

  4. As I mentioned in a comment on an earlier post, the Framers divided government into dual sovereigns, each with limited powers, and each therefore often unable to address a problem in its entitety. The Constitution limits the Federal Government’s ability to act to an enumerated set of contexts, in this case “commerce among the several states.” Congress must put a jurisdictional element - an element identifying how the conduct it seeks to regulate falls within its enumerated powers - into every statute.

    For this reason, I don’t think that jurisdictional elements should count against the universality of laws for Free Excercise purposes under Smith. The federal government is constitutionally prevented from universal solutions, so of course its solutions are not going to be universal.

    And I think this is so wven when the jurisdictional element is stricter than the Constitution would strictly require. The jurisdictional limit on federal power promotes liberty, just as requirements like corroborating evidence and rights like attorneys do. The fact that a legislature may choose to require corroborating evidence or pay for people’s attorneys doesn’t, in my view, means that it doesn’t regard the interest involved as compelling. The constitution itself requires corroborating evidence for treason. In my view, requiring corroborating evidence is an established limit on governmental power that does not make statutes which have it, even when not constitutionally necessary, non-universal.

    I see the same with Congressional statutes with jurisdictional elements that are broader than strictly necessary. Jurisdictional elements are established limits on federal power inherent in our constitutional system of dusl sovereignty. They therefore do not render statutes that have them non-universal, even when narrower than strictly necessary.

    I have regularly disagreed with Smith. But it has to be interpreted fairly. Transmogrifying it from a safe harbor shielding most ordinary statutes from Free Exercise challenged into a sword by which any and all exceptions, even constitutionally based ones, render a statute non-universal may seem tempting to supporters of religious libeerty. But such a transmogrification is not soundly based. It creates a monster. Succumbing to such a temptation would be a Faustian bargain.

    1. "Congress must put a jurisdictional element - an element identifying how the conduct it seeks to regulate falls within its enumerated powers - into every statute."

      I agree with you, but unfortunately IIRC in 2006 the Supreme Court decided that "15 employees" was not a jurisdictional requirement (commerce clause), but rather it was an element of the claim.

      (Given that Sec. 2000(e) states, "The term 'employer' means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year ..." I would disagree, but I'm not the Supreme Court.)

      1. Well, it's not a jurisdictional element. Plenty of businesses with under 15 employees are clearly involved in interstate commerce, and no small number of businesses larger than 15 aren't really involved in interstate commerce by any definition not aimed at converting everything into interstate commerce.

        There might be some small statistical correlation here, but that's all.

        1. I don't think you understand the point, or, for that matter, why there was a circuit split prior to 2006, or why the Supreme Court choose to address it with an opinion.

          But that's okay, it's not like you want to understand. Pesky reasoning gets in the way of what you already know to be true.

      2. I would disagree, but I'm not the Supreme Court.

        I'm no fan of expansive federal jurisdiction, but I disagree with you and agree with SCOTUS: that's an element of the cause of action, not a jurisdictional requirement. Arbaugh was right.

        1. Thanks for that cite. I looked up Arbaugh. One takeaway I had was that Congress has to declare something as a jurisdictional requirement, otherwise it isn't. Silence is not so golden, I guess.

          My budding legal education continues. 🙂

      3. I think the Supreme Court could easily distinguish between the jurisdiction of the federal courts, which is what Arbaugh v. Y &H Corporation was about, and Congress’ assertion of its statutory powers.

        Congress’ assertion of statutory powers less than the constitutional limit it may not deprive the federal courts of jurisdiction over the substance. But I think they don’t render the law non-universal for Religion Clause purposes.

        If, among many other possible examples, Congress passes environmental legislation that applies only to waters navigable in a traditional sense, I wouldn’t think the exclusion of WOTUS in a more expansive sense would render the statute non-universal for Smith purposes. Same if it gives states more flexibility than it absolutely has to. And so on.

        If Congress is limiting its power based on a textual constitutional principle or a reading of the constitutional limits, even one narrower than the Supreme Court has held, its law still remains generally applicable for Smith purposes.

  5. Anybody else think this is a really interesting topic and wish somebody else besides Blackman was writing here about it?

    1. Well, I do wish it wasn't just Blackman writing about it here. Not the same thing, of course.

    2. Eugene weighed in his Fulton brief (see Section IV)

      there is a good reason why this Court did not conclude in Lukumi that laws with secular exemptions were outside the scope of Smith [...] when the law restricts a wide range of behavior, entirely apart from its religiosity, there is no principled way to administer a constitutional exemption system, even when the law also exempts some behavior.

      1. I disagree with Professor Volokh and believe there are many kinds of exceptions that indeed render laws not generally applicable. But Professor Blackman’s expansive reading of Police v. Newark is. Quite frankly, starting to make Professor Volokh’s argument look better.

        On reflection, maybe Police v. Newark was wrongly decided. I am inclined to think if you could have upheld a law under the pre-Smith compelling interest standard, it has to be upheld in the post-Smith regime as well. Readings of Smith that result in greater protection for religious liberty than pre-Smith strike me as implausible. So just as I argue above that limits that respect constitutional limited-powers principles don’t render Smith inapplicable, I am also inclined to think that anything that would have been considered a compelling interest pre-Smith doesn’t render Smith inapplicable.

        Medical exceptions, at least when the medical issues are serious, could have been upheld pre-Smith under compelling interest. Prior to Smith, the state could compel life-saving medical procedures against religious beliefs because the state was regarded as having a compelling interest. So it seems to me that where medical reasons would survive pre-Smith compelling interest, corresponding medical exceptions can’t render a rule non-applicable under Smith.

        This still means a great many potential exceptions can invalidate the general applicability of a law. But not all.

        1. My difficulty here is that the state’s interest in having police officers look the same isn’t a very strong one. Prior to Smith, the police officer would get to keep his beard.

          I would like to say the compelling interest exception to the not-generally-applicable exception to Smith would apply only where the state’s interest in the underlying rule, not just in the exception, is compelling.

          But I realize I see things this way because I think the pre-Smith regime makes sense and Professor Volokh’s inrerpretation of Smith renders the Free Exercise Clause all but a nullity. Justice Alito’s approach of interpreting Smith narrowly by scrutinizing exceptions closely makes sense, but I find myself wanting to apply that approach only where it “makes sense.” And my concept of what “makes sense” is based more or less on what would have been upheld and what would have been struck down pre-Smith.

          1. Eugene's interpretation of Smith requires non-discrimination towards religious conduct which does not make the Free Exercise Clause a nullity.

  6. Another reason for the exemptions for small firms is the danger of coercing small firms under the threat of crushing litigation expenses.

    While these are likely infrequent we have seen similar situations in other contexts. There is a cottage industry of ADA lawsuits aimed at landlords usually settled by some superficial corrections and payment of some of the plaintiff's legal fees, at an amount calibrated to be below the cost of defending the suit. We have seem anti-discrimination claims used in other cases (wasn't the Paula Dean suit dismissed with prejudice after costing her millions in future income).

  7. If you think I write a lot, just imagine all of the things I start writing but never publish!

    Thank heaven for small mercies.

  8. Lawyer brain at it's finest, smooth as glass: "This law is too restrictive . . . but we can invalidate it because it's not restrictive enough!"

  9. Increasingly the edges of what constitutes "Religion" is blurry.
    "A sincerely held religious belief" can be almost anything and need not conform to the doctrine of any denomination or group.

    I have struggled to try to understand the current distinction (if any) between moral, religious and religious beliefs. Clearly Catholicism is a religion as are Baptists, Judaism and Islam among hundred of others. But how are those belief systems differentiated from Marxism, Atheism, Social Justice or other similar belief systems. I haven't found a satisfying answer. It has always seems to me that some Atheists carry their anti-religion to extremes usually reserved for religious fanatics.

    When I was a youngster growing up in West Virginia it was fairly common to see occasional stories of people using snakes in their religious services. Mostly is was viewed as a fringe practice by a few eccentrics in the up in the "hollers".

    There were periodic attempts to limit the practice or restrict it, which some states have done, but West Virginia never did, due to the state constitution prohibiting impeding or promoting religion. I wondered about it even then.

    1. "But how are those belief systems differentiated from Marxism, Atheism, Social Justice or other similar belief systems. "
      Atheism is not a system of beliefs, However, the others that you name are. They have structures as mass movements that are quite analogous to the ancient Gnostic systems of belief. So you are justified in calling them ersatz religions justifying protection under RFRA.
      Of course, if you wanted to be unpopular you could have pointed out that DAESH has a similarly organized system of beliefs that should be protected under RFRA, instead of being persecuted under the Patriot Act.

      1. Agnosticism is not a system of belief. Atheism absolutely is.

  10. Maybe it's time to go back to the distinction between beliefs and actions, as expressed in the originalist opinion of the Court in Reynolds v. US(1878)

    "This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices."

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