Justice William Brennan, author of Sherbert v. Verner (1963). (Official Supreme Court photograph)

“Religious freedom restoration acts” (usually called RFRAs), once broadly supported, are now controversial. Many people, chiefly on the left, have criticized such laws, in large part on the grounds that RFRAs might let religious objectors claim exemptions from antidiscrimination law — especially with regard to state and local laws that ban discrimination based on sexual orientation.

That’s a plausible criticism, it seems to me, though I suspect a somewhat overstated one (and of course its merits turn on one’s views about just how important broad sexual orientation discrimination bans really are). And I agree that many backers of such RFRAs today support them in part because they sympathize with such religious objections, especially with regard to participation in same-sex weddings and commitment ceremonies.

But it’s helpful to note, I think, that, whatever the motivation of some backers of RFRA today, RFRAs largely implement the religious exemption rules that Justice Brennan and the ACLU had long argued for — and that Justice Brennan and the ACLU had sharply criticized Justice Scalia and others for overruling.

Maybe the ACLU and many in that movement have changed its mind on the subject. They are certainly entitled to do so. But it’s worth noting that there is something of a change of mind going on, and that perhaps some of the old criticisms of Justice Scalia — who wrote Employment Division v. Smith (1990), which largely overruled the religious exemption rules that Justice Brennan had advocated — should be retracted.

1. Justice Brennan: Let’s begin with some history. In Sherbert v. Verner (1963), the Supreme Court for the first time held that religious objectors are usually entitled to religious exemptions from generally applicable laws. Justice Brennan in that case wrote that even “incidental burden[s] on the free exercise of appellant’s religion” (so long as those incidental burdens are “substantial”) may only be justified by a “compelling state interest” — “[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.” Moreover, the government must show that “no alternative forms of regulation would combat such abuses.” And while there were some qualifiers on this in Sherbert, later cases generally articulated the test as (to quote an opinion that Justice Brennan joined):

requiring the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.

2. “Courts have been quite capable … [of striking] sensible balances between religious liberty and competing state interests”: But what if a demanded religious exemption would unduly hurt society, or particular people? That, Justice Brennan and others argued, was not a reason to reject the exemption regime altogether — rather, the regime already took that into account by providing the “compelling state interest” exception. Here’s an opinion on the subject by Justice O’Connor in Smith, joined by Justices Brennan, Marshall, and Blackmun:

To say that a person’s right to free exercise has been burdened, of course, does not mean that he has an absolute right to engage in the conduct…. The compelling interest test effectuates the First Amendment’s command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests “of the highest order.” …

The State fears that, if it grants an exemption for [one religious claim], a flood of other claims to religious exemptions will follow. It would then be placed in a dilemma, it says, between allowing a patchwork of exemptions that would hinder its law enforcement efforts, and risking a violation of the Establishment Clause by arbitrarily limiting its religious exemptions. This argument, however, could be made in almost any free exercise case. See Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harv. L. Rev. 933, 947 (1989) (“Behind every free exercise claim is a spectral march; grant this one, a voice whispers to each judge, and you will be confronted with an endless chain of exemption demands from religious deviants of every stripe”). This Court, however, consistently has rejected similar arguments in past free exercise cases, and it should do so here as well….

[And a]llowing an exemption for [some objectors] would not necessarily oblige the State to grant a similar exemption to other religious groups…. Though the State must treat all religions equally, and not favor one over another, this obligation is fulfilled by the uniform application of the “compelling interest” test to all free exercise claims, not by reaching uniform results.

Thus, for instance, in Bob Jones University v. United States (1983), the Supreme Court rejected a university’s claim for a religious exemption from a federal rule that barred race discrimination by tax-exempt organizations. The Court didn’t doubt that such religious objections to discrimination law could form the basis of a Free Exercise Clause claim. But it concluded, on the facts of the case, that “the Government has a fundamental, overriding interest in eradicating racial discrimination in education,” that the university’s religious objections “cannot be accommodated with that compelling governmental interest,” and that “no ‘less restrictive means’ are available to achieve the governmental interest.” Antidiscrimination interests were to be considered using the compelling interest test — they weren’t a justification for rejecting the compelling interest test.

Indeed, when Justice Scalia argued that the Sherbert religious exemption rule put courts in the untenable “prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind,” including antidiscrimination law, the backers of the Sherbert regime (including Justice Brennan) responded,

The Court’s parade of horribles [including the antidiscrimination law example] not only fails as a reason for discarding the compelling interest test, it instead demonstrates just the opposite: that courts have been quite capable of applying our free exercise jurisprudence to strike sensible balances between religious liberty and competing state interests.

Trust the courts, said the mostly liberal backers of the Sherbert regime — they’ll rightly figure out when religious exemptions should be granted.

3. Justice Scalia and the conservative rejection of a broad constitutional exemption rule: So that was what one can fairly call the “liberal” view on the Free Exercise Clause, prominently championed by Justices Brennan, Marshall, and Blackmun, joined in part by the moderate conservative Justice O’Connor, and often joined by others as well. But in Employment Division v. Smith (1990), this view was rejected by the Supreme Court, in an opinion by the famously conservative Justice Scalia. Justice Scalia was joined on this by the even more conservative Chief Justice Rehnquist, who had been championing a retreat from the “liberal” Free Exercise Clause view for years; by the moderate conservative Justice Kennedy; and by the centrist Justice White and the liberal moderate Justice Stevens (who, like Chief Justice Rehnquist, had argued before against the religious exemptions view).

The Free Exercise Clause, this 5-to-4 mostly conservative majority held, generally only bars intentional discrimination against religions and religious practices (with a few exceptions not relevant here). It does not entitle religious observers to exemptions from generally applicable laws. Justice O’Connor and Justices Brennan, Marshall, and Blackmun sharply disagreed with the Court on this point — the block quotes above are from the opinion subscribed to by those Justices. And the ACLU, which had long supported the Brennan view, sharply condemned Justice Scalia’s majority opinion. Here’s what the ACLU has to say about this to this day:

Religious freedom … encompasses not only the right to believe (or not to believe), but also the right to express and to manifest religious beliefs. These rights are fundamental and should not be subject to political process and majority votes. Thus the ACLU, along with almost every religious and civil rights group in America that has taken a position on the subject, rejects the Supreme Court’s notorious decision of Employment Division v. Smith….

(The ACLU filed an amicus brief before the Court arguing that the free-exercise right should prevail.) The national opposition to the Smith case and its reasoning was overwhelming. The ACLU joined with a broad coalition of religious and civil liberties groups, including People for the American Way, the National Association of Evangelicals, the Southern Baptists’ Ethics Religious Liberty Commission, and by many other groups to urge Congress to reinstitute the rule that religious freedom could be constrained solely if the government had a “compelling interest” in doing so. The Congress agreed overwhelmingly with the ACLU’s position (that was rejected by Justices Scalia, Rehnquist, White, Stevens and Kennedy), and adopted the Religious Freedom Restoration Act of 1993 unanimously in the House and by a vote of 97-3 in the Senate.

4. RFRAs as a statutory attempt to return to Justice Brennan’s Sherbert approach: This federal RFRA sought to set up a statutory right to religious exemptions that mirrored the pre-Smith constitutional exemption regime. That’s generally fine — legislatures may provide rights by statute even if the courts have refused to read the Constitution as mandating such rights. But in City of Boerne v. Flores (1997), the Supreme Court concluded that Congress lacked the enumerated power to impose such a restriction on state and local government. So as a result the federal RFRA implements a Sherbert-like exemption regime as to federal law. And many state legislatures have enacted state RFRAs that likewise implement similar exemption regimes as to state and local law.

Such RFRAs are thus, in general, statutory implementations of the very same test that Justice Brennan and many other leading liberal lights, as well as the ACLU and many other leading liberal organizations, have said is constitutionally required. Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed.

Perhaps those objectors should have lost under the compelling interest test during the Sherbert era (and they almost always did, when antidiscrimination laws were involved, except as to discrimination in choice of clergy and other religious officials) and they can still lose under the compelling interest test under state RFRAs. But to Justice Brennan and the ACLU, that has historically been a reason to apply the compelling interest test in the way they saw as correct — not to reject the compelling interest test altogether.

At the same time, note that the RFRAs aren’t as court-empowering as the old regime, because they are just statutes, enacted by the legislature and modifiable by the legislature. If a legislature dislikes a court decision allowing an exemption from some government rule (an antidiscrimination law, a drug law, a prison policy, or anything else), it can amend RFRA to expressly exclude that law.

This helps explain why even the conservative Justices, including Justice Scalia, have been willing to enforce RFRA brooadly, not just in Hobby Lobby but in the unanimous decisions in Gonzales v. O Centro (which used RFRA to carve out a religious exemption from a drug law) and Holt v. Hobbs (which used a RFRA-like statute to carve out a religious exemption from a prison no-beards rule). In applying RFRA, as opposed to the old Sherbert test, a court is implementing the legislative decision to carve out exemptions from some rules, not trumping a legislative decision. To quote Chief Justice Roberts in O Centro,

We have no cause to pretend that the task assigned by Congress to the courts under RFRA is an easy one. Indeed, the very sort of difficulties highlighted by the Government here were cited by this Court in deciding that the approach later mandated by Congress under RFRA was not required as a matter of constitutional law under the Free Exercise Clause. See Smith. But Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue.

5. RFRAs, corporations, civil litigation, and burden tweaks: Now some of the objections to certain state RFRAs have been that they are broader than earlier versions. But this breadth is likewise consistent with Justice Brennan’s old religious exemption model.

A. Some new RFRAs, such as the Indiana RFRA, would have made clear that the Indiana RFRA applies not just to prosecutions or lawsuits brought by the government, but also in civil cases brought by private parties under state law. (Courts are split on whether the federal RFRA and other RFRAs modeled on it should apply in such situations.)

But the old Sherbert-era Free Exercise Clause would surely have applied to such private lawsuits as well. After all, the year after Sherbert, Justice Brennan’s opinion in New York Times Co. v. Sullivan (1964) made clear that the First Amendment applied to civil lawsuits; that case involved libel law, but its logic extended beyond that, and the Court has routinely applied the First Amendment to a wide range of other civil litigation brought by private individuals. What’s true for the Free Speech and Free Press Clauses of the First Amendment would surely have been true, on this point, for the Free Exercise Clause.

While the Supreme Court didn’t consider such cases (lawsuits brought by private parties seeking to apply state or federal law) under the Free Exercise Clause during the Sherbert era, the logic of New York Times and similar cases strongly pointed to applying it. To quote New York Times v. Sullivan,

Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute. The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised.

The same would be true of civil lawsuits between private parties when the issue involved free exercise rather than free speech or free press. And indeed lower courts sometimes did apply the Free Exercise Clause during that era to private litigation.

Of course, under the Sherbert-era Free Exercise Clause regime, such religious objections to civil lawsuits by private parties — like religious objections more broadly — could still be rejected under the compelling interest test. Indeed, religious objections to employment discrimination law (outside hiring of clergy and other religious officials) were so rejected, including when brought by private parties. And they could likewise be rejected under a RFRA that applies to such civil litigation.

B. Some of the newer RFRAs, including the Indiana law, also apply to corporations and other such organizations, and not just to individuals or religious institutions, so long as the law burdens religious practice (which, in practice, would likely limit this provision to closely held corporations, rather than large, publicly traded ones). But that too would likely have been the rule under the Free Exercise Clause during the Sherbert era (though the Supreme Court never squarely faced this). Certainly Justice Brennan took the view that religious objections could be raised with regard to business organizations — he voted in favor of the Free Exercise Clause claim in Gallagher v. Crown Kosher Super Market of Mass., Inc. (1961), in which one of the claimants was a corporation.

C. Some laws also seem to slightly loosen the burden requirement; the Indiana law, for instance, applies whenever an objector’s practice is “substantially burdened, or is likely to be substantially burdened.” But while in theory this difference could be significant in some cases, I suspect that in practice it would rarely matter; indeed, it would probably largely restate the rule for preliminary injunctions, which are often used to seek religious exemptions, and which generally require just a likelihood of success on the merits.

And in any event this “likely to be substantially burdened” addition wouldn’t matter in most cases that involve religious objections to antidiscrimination law, since such objectors usually claim that the law requires them to do something they sincerely believe is religiously forbidden (for instance, participating in same-sex marriage ceremonies). The government’s requiring people to do something they sincerely believe is religiously forbidden, or even financially pressuring them to do so, is a classic example of what the Justice Brennan / ACLU view thought was presumptively unconstitutional.

6. Trust the courts? Why then the opposition to the RFRAs, or at least the demand that they expressly exempt antidiscrimination laws? There are many possible reasons, but here’s one that I think makes sense: Many people on the left (and others as well) have come to doubt the assurance by Justice O’Connor, joined on this point by Justices Brennan, Marshall, and Blackmun, that “courts have been quite capable of applying our free exercise jurisprudence to strike sensible balances between religious liberty and competing state interests.”

These RFRA skeptics recognize that a lot of these questions aren’t a question of some technocratic “sensible balance[],” but instead rest on value judgments about how important laws are, and how harmful exemptions from those laws might be. And if there’s even a small chance that courts will carve out exemptions that the skeptics disapprove of — such as exemptions from antidiscrimination laws — the skeptics want to prevent that risk up front, when the RFRA is being enacted, rather than trusting courts to do the right thing in the future.

This is something they couldn’t have done under the old Justice Brennan / ACLU Sherbert approach, because it was a constitutional mandate that legislatures couldn’t easily modify. But the state RFRA model lets supporters of certain laws (here, antidiscrimination laws) take exemptions from those laws off the table.

Justice Scalia’s opinion Employment Division v. Smith left most religious exemption questions to “the political process.” The modern RFRA skeptics have embraced that.