The Court after Scalia: Neither left nor right – The enduring principle of Free Exercise

Eric Baxter is Senior Counsel at The Becket Fund for Religious Liberty in Washington, D.C.

The Supreme Court has a long record of generously construing the Free Exercise Clause to accommodate religious practices regardless of their public popularity. While new tension points are always arising, the Justices are likely to continue that trend within the framework of existing laws and jurisprudence. Thus, regardless of who is appointed to fill the seat vacated by the late Justice Antonin Scalia, Americans may reasonably anticipate that their religious beliefs and practices will continue to be protected by the Court, free from “the vicissitudes of political controversy.”

This prediction contradicts the canonical academic view of the law of religious liberty. In that account, the Court’s 1990 decision in Employment Division v. Smith changed forever the way the federal courts would consider claims under the Free Exercise Clause. But in practice, post-Smith jurisprudence has proven less dramatic and more nuanced.

Smith did modify – without overruling – the Warren Court’s Sherbert v. Verner decision by holding that “neutral and generally applicable” laws need not be subjected to strict scrutiny. But that has not stopped the Court from applying the Free Exercise Clause to require religious accommodations. In Church of the Lukumi Babalu Aye v. City of Hialeah, for example, the Supreme Court struck down an animal-cruelty ordinance that would have prevented members of the Santeria religion from performing animal sacrifices. Although the law arguably was neutral on its face, the Court unanimously applied strict scrutiny, holding that the Smith standard is not met when a law is motivated by religious animus, when it is gerrymandered to apply disproportionately to religious conduct, or when it potentially discriminates among religions.

The same dynamic prevailed in Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, the first case in which the Supreme Court considered the ministerial exception to employment nondiscrimination laws. Many observers predicted the Court would apply Smith to rule against the Lutheran school, and then were shocked when a unanimous Court – including Justice Scalia! – disregarded Smith to hold that the Free Exercise Clause required a ministerial exception.

Other courts have similarly made exceptions to Smith and imposed strict scrutiny when challenged laws are not truly generally applicable, either because they include categorical exemptions that undermine the law in the same way religious exemptions would, because they provide for individualized or discretionary exemptions as in the Sherbert line of cases, or because they are enforced inconsistently. Smith itself made clear that strict scrutiny will also still apply whenever religious exercise is connected to other protected activity such as sharing religious beliefs or raising children. Applying these broad exceptions to Smith, judges across the political spectrum consistently grant generous accommodations for religious exercise. 

Smith also served to reveal overwhelming, bipartisan support for generous religious accommodations among the public generally. Fearing a narrow reading of the ruling, an extraordinarily diverse coalition of politicians, scholars, religious organizations, and civil rights groups from both sides of the aisle united to promote broad protection for religious exercise. The Religious Freedom Restoration Act of 1993, or “RFRA,” resulted. Introduced in the House by Congressman Chuck Schumer and in the Senate by Senators Ted Kennedy and Orrin Hatch, the bill reinstated and expanded the pre-Smith strict-scrutiny analysis to protect all religious exercise absent a compelling government interest carried out by the least restrictive means. The bill passed both houses of Congress almost unanimously, with only three (also bipartisan) opposing votes in the Senate, including from Republican Senator Jesse Helms and Democratic Senator Robert Byrd. The bill was signed into law by President Bill Clinton.

Twenty-three years under RFRA have taught much. First, its broadly accommodating approach has not ushered in the “law unto himself” anarchy Justice Scalia feared. More importantly, the RFRA standard – as also found in RFRA’s later-enacted companion statute, the Religious Land Use and Institutionalized Persons Act, or “RLUIPA” – has provided broad religious protection, particularly for members of minority faiths and for religious organizations that serve vulnerable populations, such as the homeless, prisoners, and underprivileged youth.

In Gonzales v. O Centro, for example, the Supreme Court unanimously upheld the sacramental use of hoasca, a restricted narcotic, by a New Mexico branch of the Brazil-based União do Vegetal church. In Holt v. Hobbs, the Court unanimously protected a Muslim inmate’s right to maintain his religious beard while in prison. And in lower courts, RFRA and RLUIPA have opened the door for observant Sikhs to serve in the military with their religious beards and turbans, protected Native Americans’ use of eagle feathers in their religious powwows, and helped a small group of Rinzai Zen Buddhists overcome a zoning challenge to their residential gatherings for silent meditation.

The RFRA standard has also protected a ninety-year old veteran’s twenty-year ministry of feeding the homeless in a Florida city park. It has protected Christian ministries that provide housing and reintegration services to newly released prison inmates. And it helped Congregation Kol Ami, a Reform Jewish community in Pennsylvania, overcome zoning restrictions that permitted country clubs but barred their synagogue. In short, RFRA’s broadly accommodating standards have protected many individuals and organizations of all political stripes, but particularly those of minority faiths and faiths serving vulnerable populations whose religious exercise under a narrow reading of Smith might otherwise have been stifled. If anything, RFRA and RLUIPA remain under-enforced in such vital matters. Parties across the political spectrum thus have a continuing interest in seeing strong protection for religious exercise. And based on RFRA’s broad-based usage thus far, any new Supreme Court appointee can reasonably be expected to uphold that principle, regardless of political trends.

Some dissent from RFRA’s broad bipartisan support for religious accommodations has recently arisen, partially in response to the Supreme Court’s decision in Burwell v. Hobby Lobby. There, members of the Green family of Oklahoma, who own and operate a closely-held chain of craft stores, challenged a regulatory mandate to cover certain contraceptives in their employee healthcare plans. Although the Greens already provided extensive coverage for contraception, they objected on religious grounds to including certain forms that can potentially cause abortions. Ultimately, the Court ruled five to two (with Justices Stephen Breyer and Elena Kagan declining to decide the issue) that people organized in the corporate form can exercise religion and five to four that the Greens’ religious exercise was protected, concluding that the government had failed to prove there were no less restrictive ways of affording women free access to contraceptives.

Partially in response to that ruling, the American Civil Liberties Union – an early and ardent supporter of RFRA – announced that it would “no longer support the federal ‘religious freedom law’” for fear that it may be used “to discriminate against women, gay and transgender people and others.” Others have expressed similar concerns. Such serious charges warrant careful consideration, but for several reasons they are unlikely to persuade a thoughtful Justice to abandon the Court’s longstanding principle of generous religious accommodations under either RFRA or the Free Exercise Clause.

First, all should agree that freedom of religion should not deprive others of their own constitutional rights. Strict-scrutiny review itself applies a balancing test, recognizing that free exercise sometimes must give way to compelling government interests such as preserving national security, protecting life, and balancing the constitutional rights of others. In the Jim Crow era, for example, courts properly rejected attempts to use religion to preserve laws and social structures that broadly excluded African Americans from government, commerce, and other aspects of public life.

But the vast majority of free-exercise claims do not implicate such serious concerns, and seeking to cast every conflict between religious and secular rights as equally consequential threatens the ability both to prevent true harm and to preserve religious liberty against each potentially conflicting political movement that garners widespread acceptance. Political winds blow in both directions, and the principles applied in one case will apply in the next. Judges are thus likely to exercise caution in identifying when government interests are sufficient to justify suppressing sincere religious exercise.

In recent politically charged cases implicating religious liberty, the Supreme Court has proven remarkably sensitive to these issues. Although it was divided in Hobby Lobby, for example, in Zubik v. Burwell, a later related case, the Court unanimously accepted that there are ways to accommodate religious exercise while still ensuring access to contraception and remanded for the parties to find a mutually acceptable remedy. In Town of Greece v. Galloway, the Court unanimously upheld legislative prayer, although it divided five to four on the extent to which the town had to work to ensure participation by a diversity of faiths. In Obergefell v. Hodges, in which the Court divided five to four to recognize same-sex marriages, all of the Justices agreed, as stated by Justice Anthony Kennedy, that religious opposition was “based on decent and honorable . . . premises” and that First Amendment rights ensure “proper protection” to teach those beliefs and engage others in “open and searching debate.”

These rulings demonstrate broad and continuing commitment to religious liberty, despite politically contentious developments in an often rapidly changing world. But, after all, a major purpose of both the Bill of Rights and an independent judiciary was to protect certain inalienable rights against the potential excesses of democracy. Because all Americans benefit from that protection, it is reasonable to assume that – regardless of who appoints them – Justice Scalia’s replacement and other future Justices will look neither left nor right, but to the basic principle of the Free Exercise Clause – namely, keeping people free to exercise their religion to the broadest extent possible.

[Disclosure: The Becket Fund was among counsel for the petitioner in Hosanna-Tabor Evangelic Lutheran Church and School v. EEOC, for the respondents in Burwell v. Hobby Lobby Stores, and for the petitioners in Holt v. Hobbs and Zubik v. Burwell.]