The Volokh Conspiracy

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The Progressive Free Exercise Clause

Progressives are pivoting to find arguments that will work with a conservative Court.


When Justice Kennedy reigned supreme, advocates on both sides had to frame arguments to appeal to the swing vote's proclivities. Mix a little federalism, sprinkle some dignity, balance everything out, and BAM! You got a narrow, incoherent 5-4 opinion in your favor. Thankfully, those days are long gone. But now, there is a new game in town: the way to win is religious liberty. And progressives have turned to the free exercise clause.

Exhibit A is abortion. Before Dobbs even dropped, members of progressive faiths argued that the Free Exercise Clause, and state RFRAs require exemptions to abortion restrictions. Indeed, Marci Hamilton, who has long assailed RFRA, has learned to stop worrying and love the substantial burden test. If there is hope to persuade a conservative Court to protect abortion, it must be based on religious liberty.

Exhibit B is affirmative action. Yesterday, a group of Catholic universities filed an amicus brief in the Harvard and UNC cases. The brief, authored in part by Kathleen Sullivan, argues that the Free Exercise Clause supports a religious liberty claim to consider race in admissions.

For Catholic colleges and universities like amici in particular, the Free Exercise Clause supplies an additional constitutional dimension to the compelling interest in racial diversity as one factor among many in admissions. Amici's foundational Catholic values and teachings inform their commitment to give value to the identity of the whole person in admissions and to compose a student body that will, after graduation, promote the Catholic mission of the common good and service to others, especially the poor and underserved.

Common good!? Did Vermeule ghostwrite this brief? That has to get five votes, right? Who knew that the Free Exercise Clause and RFRA support such progressive outcomes? Really Roe and Grutter should have been Free Exercise Clause cases–so much more elegant. The Due Process Clause and Equal Protection Clause can take a backseat to religious liberty.

I expect a third category to be environmentalism. Groups will argue they have a religious liberty interest in pristine nature, clean air, endangered species, etc. The APA is only the starting point. RFRA will be the backstop.

If you sense some sarcasm in my tone, you're very perceptive. I worry that these claims will irreparably set back the religious liberty movement. It took three decades of careful work to move the ball from Smith to Fulton. But less than two years after Justice Ginsburg's death, litigants are prepared to gerrymander the Free Exercise Clause and RFRA to fit every facet of the progressive agenda.