When Liberals Demanded Religious Exemptions

When Liberals Demanded Religious Exemptions January 23, 2015

Eugene Volokh, one of the top First Amendment scholars in the country, has an essay detailing the long history of laws and court rulings giving religious exemptions from laws that apply to everyone else, and it’s quite interesting. Many outlets have noted that Justice Scalia rejected the idea that the Free Exercise Clause demanded such exemptions, but in fact the sides have completely flipped positions on the issue.

Volokh details two types of exemptions, those based on a statute giving a specific exemption from a specific law (for instance, in the early days of the country some states specifically exempted Jews from laws that forbid uncles and nieces marrying, for some reason), and the idea, found mostly in court rulings, that the constitution requires religious exemptions in general (within limits, of course). The latter notion dates back to a Supreme Court ruling 52 years ago:

But starting in the 1940s, when the Court began to forcefully apply the Free Speech Clause to protect free speech, some opinions began to suggest that the Free Exercise Clause might likewise protect at least some religiously motivated conduct (a view that had been rejected by the Court in the Mormon polygamy case, Reynolds v. United States (1879).

This took a while to gain traction, but in the early 1960s, the arch-liberal Justice Brennan began to forcefully advocate this position, 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…

Through the 1960s, 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, who at the time was seen as a moderate.

Fast forward to 1990, when the court rejected that reasoning in Employment Division v Smith, led by the conservative members of the court in a ruling written by Justice Scalia and the three most liberal members of the court in dissent.

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 statute-by-statute exemptions). That rejection of religious exemptions was famously led by Justice Scalia, joined by conservative Justices Rehnquist and Kennedy, 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. (Whether this was because he had changed or because the Court has changed is a matter of debate.)

The dissenters were moderate conservative Justice O’Connor, 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.

That decision led Congress to pass the Religious Freedom Restoration Act in 1993, effectively reversing that decision by providing a statutory right to religious exemptions rather than a constitutional one. Ted Kennedy was one of the two co-authors of that bill (Orrin Hatch was the other) and it passed the Senate by a staggering 97-3 vote and unanimously in the House. Support for religious exemptions was clearly bipartisan. And two decades later, it’s the conservative members of the court who argue for the broadest possible interpretation of RFRA, while the liberals want it interpreted more narrowly.

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