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Is RFRA limited to pre-Smith jurisprudence, or does RFRA run through it?

For reasons that have adequately covered on this blog and elsewhere, I thought that most of the legal conclusions in the Court’s opinion in Hobby Lobby were not much of a surprise. But there was one legal conclusion that I did find somewhat surprising, and that I think may prove important. I should emphasize that I’m not yet convinced that it’s wrong, however.

That conclusion is the extent to which RFRA codifies all of the Court’s free exercise cases before Employment Division v. Smith. I think it is fair to say that a lot of people thought that was all the statute did. But the Court in Hobby Lobby does not agree. It notes several times that RFRA’s text is more demanding than some of the Court’s pre-RFRA cases. And when confronted with US v. Lee, a pre-RFRA case in which the Court rejected a Free Exercise challenge to social security taxes, it writes that:

HHS highlights certain statements in the opinion in Lee that it regards as supporting its position in these cases. In particular, HHS notes the statement that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” 455 U.S., at 261. Lee was a free exercise, not a RFRA, case, and the statement to which HHS points, if taken at face value, is squarely inconsistent with the plain meaning of RFRA. Under RFRA, when followers of a particular religion choose to enter into commercial activity, the Government does not have a free hand in imposing obligations that substantially burden their exercise of religion. Rather, the Government can impose such a burden only if the strict RFRA test is met.

If this holding is extended to RFRA more generally, that’s potentially quite important. Some of the most important moves litigants might make to limit the scope of RFRA will be harder if they are stuck without the prior cases. Marty Lederman has a long post on Balkinization criticizing this portion of Hobby Lobby (which he calls “the one (potentially) momentous aspect of Hobby Lobby.” Micah Schwartzman, Rich Schragger, and Nelson Tebbe also have a post on Slate making a similar criticism.

I am not sure this part of Hobby Lobby is right, but I am not sure it is wrong either. Back in 1995, two years after RFRA was passed and two years before it was partly invalidated in Boerne, Michael Stokes Paulsen published an excellent essay called A RFRA Runs Through It. In the essay he anticipated this general problem and argued that as a matter of statutory interpretation, RFRA does indeed impose a more protective standard than some of the Court’s prior cases. Here is Paulsen:

The late pre-Smith cases reflected broad judicial deference to governmental assertions of compelling interest, carving out huge areas of quasi-exemption from the (then) constitutional protections of the Free Exercise Clause. RFRA, I submit, does change all that. RFRA does not “codify” the late pre-Smith approach and is, in legal effect, far more than a mere restoration of pre-Smith case law. It is a restoration of the high-water mark of free exercise accommodation, established by the cases of Sherbert v. Verner and Wisconsin v. Yoder–cases specifically embraced in RFRA’s “purposes” section.

Later in the essay, Paulsen goes on to anticipate and respond to arguments based on RFRA’s legislative history, but I’ll let those who are interested in following this debate more closely read the essay. (Paulsen’s essay largely focuses on the compelling interest test, but I think most of his arguments carry over to the rest of the statute.)

Again, I put forth Paulsen’s argument not because I am sure it is right, but because it may help shed light on the Court’s theory, and I am not sure it is wrong. It is also a reminder that the Court’s view of RFRA is not exactly unprecedented.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).

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