The Volokh Conspiracy
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"The Court Shouldn't Bruen-ize the Free Exercise Clause"
Some thoughts from Michael McConnell, Douglas Laycock, Stephanie Barclay, and Mark Storslee.
I'm delighted to be able to pass along this analysis from Profs. Michael McConnell, Douglas Laycock, Stephanie Barclay, and Mark Storslee. (McConnell and Laycock are quite likely the two most prominent Religion Clauses scholars in the nation; they and Barclay were also cited repeatedly in Justice Alito's concurrence in Fulton v. City of Philadelphia (2021).) The Court is poised to overrule Employment Division v. Smith, and return to the Sherbert/Yoder regime, under which religious objectors have a presumptive constitutional right to exemptions from generally applicable laws. It's therefore tremendously important to figure out what the rules are for when that presumption is rebutted; their reasoning speaks directly to that question:
With opening briefs filed this week in Mahmoud v. Taylor, the Supreme Court will have another opportunity to consider the appropriate constitutional standard for evaluating free exercise claims under the First Amendment. In Mahmoud, the Court will decide whether public schools may compel students to participate in instruction on gender and sexuality that violates their parents' religious convictions.
Some scholars and several prominent appellate court judges have recently argued that the Supreme Court should abandon strict scrutiny and Bruen-ize the First Amendment—i.e., incorporate the Second Amendment constitutional doctrine from New York State Rifle & Pistol Ass'n v. Bruen into various parts of the First Amendment (though these arguments have largely related to the First Amendment's speech protections).
Although we differ in some ways with respect our approach to constitutional interpretation, we all broadly support looking to the history surrounding ratification as a primary method of developing constitutional doctrines. But we have serious concerns about the Court adopting a Bruen-type historical analogue approach in the free exercise context. In our view, doing so would create a test that would be unworkable, theoretically dubious, and—ironically—inconsistent with the best historical understanding of the meaning of the Free Exercise Clause.
Bruen's Basic Framework
Under Bruen's test, to regulate protected Second Amendment activity, the government must demonstrate that its modern regulation is consistent with the nation's historical tradition of firearm regulation. This involves a two-step inquiry. First, courts must assess whether the "plain text" of the Second Amendment applies to the conduct in question. Second, where the initial requirement is met, the government must identify historical restrictions on the right from the Founding era or the Reconstruction era (when the Fourteenth Amendment was ratified) that are "relevantly similar" to the challenged regulation in order to save the law.
Crucially, Bruen also insisted that at this second step, judges ought to eschew so called "means-ends scrutiny" and related doctrines such as strict scrutiny, compelling government interest analysis, and interest balancing. Instead, they ought to rely solely on historical analogues of regulations. Modern factual considerations, such as the government's need to implement the regulation or the fit between the regulation and the government's interest, are not part of the analysis (although we find it impossible to believe courts will ignore such concerns in practice).
In United States v. Rahimi, the Court clarified that Bruen's historical analogue approach is a search for "the principles that underpin our regulatory tradition," not an unguided hunt for whatever historic regulations happened to exist at the relevant period. We think Rahimi's attempt to rescue Bruen from a focus on brute historical facts alone was a positive development. After all, originalism is a search for meaning, not history for its own sake. Even so, we do not think that Bruen's approach easily translates to the free exercise context, for at least two reasons.
A Bruen Approach Is Incapable of Grappling with Some of Our Nation's Tradition that Does Not Live Up to the Meaning of Free Exercise Protections
First, Bruen instructs courts to focus primarily on "the Nation's historical tradition of … regulation"—defining the boundaries of a right in terms of laws that existed at the relevant historical period. But Bruen's approach has no good way — maybe no way at all internal to its premises — to distinguish times and events when historical government regulation was honoring constitutional rights from times and events when we were violating them, sometimes flagrantly.
Just consider a few examples from the free exercise context. One: almost every state had blasphemy laws at the Founding and well into the nineteenth century. Another is that teachers caned and expelled Catholic children in public schools for refusing to read the King James Bible—and courts upheld those actions. Our history and tradition includes the long-running persecution of the Mormons (members of the LDS Church). It includes attempts to impose Protestant forms of governance on Catholic Churches, to force all children to attend public schools, and to stamp out the Native American sun dance. We could go on, but we think the point is plain.
The fact that we can point to certain historical analogues of government regulation in support of such practices, either at the Founding or later, does not mean those regulations were living up to the constitutional promise of free exercise. Sometimes practices flying under the banner of "tradition" are nothing more than flagrant violations, made possible by bigotry or unreflective inertia.[1]
To be sure, historical regulations that existed contemporaneous with ratification might sometimes provide limited indirect evidence about the Constitution's meaning. But determining the value of that evidence requires a serious attempt to discern the positive meaning of a constitutional provision. And just as importantly, it sometimes requires recognizing that the full implications of a constitutional right—even from the moment of its ratification—may not have been immediately accepted or fully understood.
Constitutional rights are aimed at remedying historic abuses. And the defenders of those abuses do not instantly acquiesce or comply as soon as the new amendment is ratified. They often carry on as before, making history and tradition. The will to enforce the newly announced right, or even the ability to understand its implications, may be long delayed. After all, the longest lasting history and tradition of the Reconstruction Amendments is still Jim Crow.
Nor was any of this news to the Framers. Madison, for example, noted in introducing the Federal Bill of Rights that while many states already had their own bills of rights, there were "few particular states in which some of the most valuable articles have not, at one time or other, been violated."[2] Despite recognizing that enumeration alone could not guarantee rights, Madison nonetheless advocated for the inclusion of a federal Bill of Rights in the Constitution to lessen the chances of rights violations. He was candid, however, that the Founding era government, engaged in a new experiment of popular sovereignty, often acted in ways that fell short of the constitutional ideal.[3] Containing no obvious way of weeding out those shortfalls, a Bruen-style approach risks entrenching them.
Strict Scrutiny Is the More Historically Justified Judicial Doctrine
Some jurists and scholars have criticized strict scrutiny as a judge-made doctrine, and praised Bruen, in contrast, as being rooted in history. But the truth is, Bruen's two-part test is a judge-made doctrine too. Identifying a relevant analogue requires a theory about what matters and what is incidental, and a bare knowledge of historical facts and episodes cannot supply that History does not and cannot dictate answers to any of those questions.
The irony is that incorporating a Bruen approach into the Free Exercise Clause risks ignoring the ways that something like strict-scrutiny analysis is the best doctrinal tool for implementing the Free Exercise Clause's historic meaning.
It is true that, as Bruen noted, strict-scrutiny as a modern doctrine emerged in the twentieth century, not long after the First Amendment was incorporated against the states through the Fourteenth Amendment. But some of us have argued that the founding-era approach to free exercise bears a conceptual similarity to strict scrutiny. Most of the early state constitutional protections for free exercise contained "provisos" that limited the scope of the right to actions that did not invade the natural rights of others or endanger the "peace and safety of the State." In other words, the exercise of religious is protected unless it produces some kinds of harm.
And Founding-era courts likewise protected religious liberty in ways that resembled modern strict scrutiny analysis in other important respects, including asking evidentiary questions that looked like some version of means-ends scrutiny.[4] For example, an early New York case about the priest-penitent privilege noted that the practice of confession often resulted in voluntary remediation, while punishment of the priest would be futile.
In contrast, we are aware of no recorded court decisions that protected religious exercise by implementing something like the historical regulatory analogue approach. And when Madison debated with George Mason about the limits of religious liberty, he did not articulate a list of prior laws that provided analogies to limit such liberty. He focused on the types of reasons for which government could regulate religious exercise. And those reasons, he thought, should be exceedingly limited. The "happiness" of society was not sufficient. Regulation needed to be justified based on government interests like the need to preserve "equal liberty" of other citizens, or because the religious exercise could "endanger[]" the "existence of the state."[5]
To be clear, we do not deny that different doctrinal tools may sometimes be appropriate, even in the free exercise context. For example, identifying historical analogues can be a valuable way of identifying absolute constitutional rights, such as the ministerial exception. Under the ministerial exception doctrine, in certain contexts the government is flatly prohibited from forcing a religious organization to hire or maintain an employment relationship with an individual that the church does not wish to have as its leader. But note that in that context, the historical analogue does not look to a background of historic regulation. Instead, it involves identifying a zone of protected private activity in which the government cannot intrude.
The regulatory historical analogue approach in Bruen functions in the opposite manner. Rather than looking for historic analogues of protected activity, Bruen looked to the universe of historic regulation, then defined permissible modern regulation in those terms. At first glance, that kind of approach might seem attractive to those who believe in a robust version of the free exercise right. But the reality is something closer to the opposite.
The key insight involves understanding the flip-side of Bruen. By focusing on historic regulation rather than protected conduct, Bruen's approach creates a limited permission for regulation rather than a limited prohibition on governmental means and ends. In the Second Amendment context, this has meant a limited range of permissible government action, because there was so little gun regulation in the early years of the Republic. But for reasons we have already explained, in the free exercise context, the results will be a mixed bag, sometimes protective of the liberty, but often not.
In some areas the regulatory historical analogue approach might even open the door to religious persecution. The American history and tradition toward Native religion, Catholicism, and Mormonism was not a model of respect for the rights of others. An approach that would hold up blasphemy laws or laws discriminating against religious minorities as presumptively permissible is hardly an approach protective of religious freedom. Yet that is the approach Bruen's framework would seem to invite.
In other areas of modern regulation, there may be no relevant historic analogue that government can point to, at least at a low level of generality. That presents a different quandary under Bruen, one related to limits on judicial discretion. In such a context, construing historical analogues at a low level of generality might mean that any regulation limiting religious exercise would be categorically invalid. That approach would overprotect religion as applied to whole swathes of regulation unknown to the founding generation. For example, the legal category of "child abuse" did not exist until well after the Founding. That does not mean that religiously-motivated child abuse, however severe, should now get a free pass.
That leaves the second option. On this approach, courts can dial up the level of generality to make modern-day regulation more permissible even if it is more loosely analogous. We think this result the more likely one after Rahimi. In the free exercise context, however, that approach means far less protection for religious claimants, and a categorical affirmance of nearly all modern regulations limiting religious exercise.
Consider this level of generality dilemma in the context of parental rights, relevant to Mahmoud. There were no public schools in the United States before the 1830s, and in some parts of the country until after the Civil War, and the history of public school education in the late nineteenth and early twentieth centuries was infected by a Protestant hegemony that brooked little dissent. That history and tradition would not lead to a happy result in Mahmoud.
It is far more workable, and more consistent with constitutional text and history, for courts to force government to prove with a robust evidentiary showing that a regulation that limits religious activity is a narrowly tailored means of actually protecting an interest like the peace and safety of the state. That is what historical materials concerning the meaning of free exercise point towards. And that, more or less, is what strict scrutiny requires.
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[1] See, e.g., Mark Storslee, History and the School Prayer Cases, 110 Va. L. Rev. 1619, 1684–1691 (2024) (discussing the practice of compelled religious observance in nineteenth century public schools).
[2] See Stephanie H. Barclay, Constructing Constitutional Rights, Harv. L. Rev. F. (forthcoming 2025) (quoting 11 Documentary History of the First Federal Congress of the United States of America: 4 Mar.–3 Mar. 1791, at 825 (Charlene Bangs Bickford et al. eds., 1992) (emphasis added)).
[3] Id. (citing 11 Documentary History of the First Federal Congress 825 (emphasis added). Conversely, while Founding-era governments often exceeded their legitimate authority in infringing on rights, they also sometimes stopped short of the limits of their authority. Justice Barrett has recognized this point, noting that the Founding era government could have chosen not to enact a regulation because it believed the regulation unnecessary, rather than because it felt the regulation would be constitutionally prohibited. See United States v. Rahimi, 602 U.S. 680, 739–40 (2024) (Barrett, J., concurring).
[4] See Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1414–15, 1511–13 (1990); Douglas Laycock, The Supreme Court's Assault on Free Exercise, and the Amicus Brief That Was Never Filed, 8 J.L. & Religion 99, 102 (1990); Douglas Laycock, Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause, 81 Notre Dame L. Rev. 1793, 1795–96 (2006); Stephanie H. Barclay, Replacing Smith, Yale L.J. F. (2024) [hereinafter Barclay, Replacing Smith]; Stephanie H. Barclay, Constitutional Rights as Protected Reasons, 92 U. Chi. L. Rev. __ (forthcoming 2025).
[5] See Barclay, Replacing Smith (collecting sources).
