[1.] Say that you have a religious objection to a generally applicable rule: For instance, say you want to — for religious reasons, and contrary to state or local rules — use peyote, or refuse to rent space to a same-sex wedding, or refuse to testify against a family member in court, or wear your hair long in school. Are you entitled, under the Free Exercise Clause, to get an exemption from such a law or other government rule? There have been three main answers to this question in American history:
[a.] Before 1963, the answer was generally “no”: Courts wouldn’t grant such exemptions. Legislatures would sometimes carve out those exemptions statute by statute — draft laws and alcohol bans, for instance, have long included legislatively defined religious exemptions. But the Free Exercise Clause was generally read as barring laws that discriminate against religious practice, and not as requiring exemptions from generally applicable laws.
[b.] From 1963 to 1990, the “Sherbert/Yoder rule” answered the question “yes, at least in many cases.” Religious exemptions were a presumptive constitutional entitlement, though the government could still deny them if denying them was necessary to serve a compelling government interest.
In practice, courts often denied such exemptions, applying this “compelling interest” test in a relatively weak form, especially compared to how the test was applied in other fields, such as free speech or racial classifications. But sometimes they did grant the exemptions, for instance exempting Amish families from requirements that their children go to school from age 14 to 16, or exempting Sabbatarians from requirements that one be available for Saturday work if one is to get unemployment compensation. (This is still the rule in about a dozen states that have interpreted their state constitutional religious exemption provisions as following the Sherbert/Yoder model.)
[c.] In 1990, in Employment Division v. Smith, the Supreme Court generally returned to the pre-1963 rule, and essentially overruled Sherbert and Yoder (with narrow exceptions that I’ll bypass in this post). Congress and state legislatures in a substantial minority of states have created a general statutory exemption regime, using statutes that are you usually called Religious Freedom Restoration Acts. But the Free Exercise Clause isn’t read as mandating such exemptions, so the exemptions aren’t available in those states that lack RFRAs; and but because RFRAs are statutes, legislatures can exclude certain government rules (such as anti-discrimination laws) from the scope of RFRAs.
[2.] Historically, the broad reading of the Free Exercise Clause has been championed by liberals, and opposed by conservatives. The 1963 Sherbert v. Verner decision, which first adopted it, was written by arch-liberal Justice Brennan; 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).
Likewise, the 1990 Smith decision, which rejected it, was written by arch-conservative Justice Scalia, and joined by the solidly conservative Chief Justice Rehnquist, by Justice Kennedy, who was then seen as quite conservative (but whose later opinions have led him to be viewed as a moderate conservative), by centrist Justice White, and by Justice Stevens, who was then seen as moderate (but whose later opinions have led him to be viewed as a liberal). The dissenters were the arch-liberal Justices Brennan and Marshall, Justice Blackmun, who by then was seen as a liberal, and Justice O’Connor, who was a moderate conservative.
After Smith, religious exemptions began to be seen as a bipartisan matter: 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 RFRA in 1993; RFRA, which passed nearly unanimously, was spearheaded in the Senate by Republican Senator Orrin Hatch and Democratic Senator Ted Kennedy. Likewise, two of the Court’s three cases under RFRA (and a similar federal statute called RLUIPA) were unanimous; one held in favor of a small religious group of Brazilian origin that sought to use hoasca, a federally forbidden hallucinogen, and the other in favor of a Muslim prison inmate who sought to wear a short beard.
In recent years, though, religious exemptions have become generallly more broadly endorsed by conservatives, and criticized by liberals. We see that in public debate; and we also saw that in the application of RFRA in the Hobby Lobby case, which involved religious business owners who wanted an exemption from regulations that required them to pay for what they saw as abortifacients for their employees.
[3.] Just today, Justices Alito, Thomas, Gorsuch, and Kavanaugh suggested that they would be open to revisiting this question, and to reversing Employment Division v. Smith. This came in their opinion respecting the Court’s refusal to review Kennedy v. Bremerton School District, a Ninth Circuit decision upholding the dismissal of a public high school football coach for visibly praying at, among other places, the 50-yard-line after football games. The main arguments in Kennedy had to do with the Free Speech Clause, and most of the opinion dealt with that, though it ultimately concluded that there were procedural reasons why the Court was right to refuse to review the case.
But the four conservative Justices also added this:
In Employment Div. v. Smith, 494 U.S. 872 (1990), the Court drastically cut back on the protection provided by the Free Exercise Clause …. In this case, however, we have not been asked to revisit [this decision].
That’s not a statement that Smith is wrong, or that those Justices would vote to overrule it — but it certainly is a suggestion that they well might do that, and an invitation to litigants to ask for such overruling.
What’s more, Justice Breyer had earlier (in City of Boerne v. Flores (1997)) made clear that he thought Employment Division v. Smith was indeed wrongly decided and should be overruled. To be sure, Breyer didn’t join the four conservative Justices in Kennedy; but that might be because he disagreed with other parts of their opinion, and saw no need to write a separate opinion expressing his own views. (Many Justices don’t write or join opinions related to the refusal to hear a case.) So it looks like there might be five Justices, and not just four, that are at the least open to overruling Smith.
[4.] My personal view is that Smith was correct, largely for the reasons Justice Scalia gave in his Smith majority and his concurrence in Boerne (which dealt with the original meaning question). I also discuss this in more detail in my A Common-Law Model for Religious Exemptions article, where I also explain why I support jurisdiction-by-jurisdiction RFRAs (though written somewhat differently than the current RFRAs) — I think that having courts decide whether to grant exemptions is good but only if legislatures can then revisit the question (as they can under the RFRA model but not under the Sherbert/Yoder model).
Let me also particularly note one argument in favor of Smith, which may be especially apt today.
In Smith, Justice Scalia argued that having courts decide, as a constitutional matter, when denying an exemption is “narrowly tailored” to a “compelling government interest,” would involve recurring and impermissible personal value judgments — under the rubric of “balancing” — by judges:
[Such attempts to balance religious liberty and competing state interests would mean] that courts would constantly be in the business of determining whether the “severe impact” of various laws on religious practice (to use Justice Blackmun’s terminology) or the “constitutiona[l] significan[ce]” of the “burden on the specific plaintiffs” (to use Justice O’Connor’s terminology) suffices to permit us to confer an exemption. It is a parade of horribles because it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice.
This sort of case-by-case “balancing” would have to be done not just as to a narrow range of relatively aberrational cases (e.g., ones involving race classifications or content-based restrictions on generally protected speech), but as to a vast range of laws to which some people have religious objections. It in practice wouldn’t involve a very strong presumption in favor of a constitutional right, as it does for free speech or religious equality, because religious exemptions often would need to be denied. And it would be a matter of constitutional law, not just statutory interpretation subject to legislative override, as with RFRAs.
Now this sort of balancing might look fine if you really trust judges to balance such matters impartially. But in my experience, very many observers suggest that the modern debate about religious exemptions is largely a matter of whose ox is being gored: Religious exemptions used to be supported mostly by liberals (on the theory that they promoted multiculturalism and small minority religions’ rights) and opposed by conservatives (on the theory that they interfered with government efficiency). But now that the highest-profile religious exemption requests seem to come from religious conservatives (see, e.g., Hobby Lobby, or the Free Exercise Clause arguments in Masterpiece Cakeshop), they are supported more by conservatives and less by liberals.
Indeed, the very shift in the apparent attitudes on the Court, from Smith to today, seems to fit that story. That is not to criticize either the liberal or conservative Justices, either then or now, but just to reflect that human nature often disposes people to subconsciously view contested legal questions in a way that favors those people and causes they sympathize with.
And if that’s right, then that further supports Justice Scalia’s point: If Justices’ ideological sympathies or antipathies to particular classes of religious exemption claims influences their judgment about something as general as how the Free Exercise Clause should be interpreted — does it usually require religious exemptions or not? — then think how much it would influence the judgment about how to apply the compelling interest test in particular cases (if the compelling interest test would be revived).
Many decisions under a neo-Sherbert/Yoder exemption regimes would likely break down on conservative/liberal lines, just as Hobby Lobby did. But now they wouldn’t be decisions about interpreting the legislative will in applying a RFRA, but rather decisions about overriding the legislative will (and with no opportunity for legislative reconsideration, the way there is under RFRA). The losing side will understandably worry that they lost just because the Court’s majority is on the other side of the culture war from them. And while that of course happens as to various laws, such as laws that bear with marriage, or free speech, or sexual autonomy, religious exemption cases can arise as to virtually any law: health insurance laws, employment laws, public accommodation laws, and much more.
In any event, that’s why I’m still with Justice Scalia. But it looks like five Justices on the Court might well not be.