What is most notable about this shift is that it is seen as a move to the right rather than to the left.
To be sure, the justices who favored the injunction are generally seen as conservatives, and those who opposed it are generally thought of as liberals. But what does it mean to be a liberal or a conservative when it comes to enforcing the First Amendment’s guarantee of religious freedom? Don’t liberals generally have a more expansive view of the rights enshrined in the Bill of Rights, and aren’t conservatives more likely to defer to the decisions of elected officials that might be seen as curtailing those rights? That was how liberals and conservatives lined up on issues of religious freedom in the last century.
It was the court’s liberals, led by Justice William J. Brennan Jr., who in a 1963 decision (Sherbert v. Verner) established the principle that the government could not apply a law in a manner that substantially burdened the free exercise of religion unless it had a “compelling state interest” in doing so. Applying that test, the court held that a state could not deny unemployment compensation to an individual who refused to take a job that would require him to work on the Sabbath. The conservatives, led by Justice John Marshall Harlan II, dissented.
By 1990, the court’s makeup had changed, and the conservatives turned the court around on the issue. In Employment Division v. Smith, the court held that a Native American group that used peyote in its religious celebrations could not claim a religious exemption from the state’s criminal drug laws. Religious observers could be compelled to comply with otherwise legitimate laws of general applicability, the court held, regardless of whether compliance would conflict with their religious beliefs and practices — and regardless of whether the government could show that application of the laws was necessary to advance a “compelling state interest.” The Smith decision was written by Justice Antonin Scalia. The court’s liberals — led by Brennan, the author of Sherbert — dissented.
The Smith decision was highly controversial. Liberals in Congress, led by then-Rep. Charles E. Schumer (N.Y.) in the House and Sen. Ted Kennedy (D-Mass.) in the Senate, introduced a bill to overturn Smith and reinstate Sherbert — as a matter of legislative preference rather than constitutional mandate. They were joined in that effort by congressional conservatives. Their proposal, enacted in 1993 by a voice vote in the House and a near-unanimous margin in the Senate (the vote was 97-3), provided that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless application of the rule is “the least restrictive means of furthering [a] compelling governmental interest.” President Bill Clinton signed the bill in November 1993.
In short, conservative justices have been inclined historically to defer to legislative judgments and reject demands for religious exemptions from generally applicable laws. Liberal justices were more inclined in the past to grant religious exemptions from such laws. By 1993, liberal and conservative legislators alike agreed that there needed to be an especially compelling justification before anyone could be forced to comply with a law that interfered with their ability to practice their religion.
But times change, and today it is conservative justices who are more inclined to grant religious exemptions from generally applicable laws, and liberals who seem more prepared to defer to legislative and executive judgments that have the effect of restricting religious practice. At the risk of oversimplifying a complicated area, liberals and conservatives have seemed to switch sides, and approaches that were once seen as solidly liberal are now denounced as right-wing.
So what are we to make of all of this? We might, for one, think twice before applying such labels to the outcome of difficult cases or to the justices who decide them. Beyond that, some might suggest that the justices’ positions are shaped by the strength of their personal religious convictions. But that seems unfair: no one on the court was more religious than Scalia, who wrote the Smith decision severely curtailing the protection of religious freedom. Others might suggest that liberals today are hostile to organized religion. But that too is unfair, at least insofar as the justices are concerned. Justices Elena Kagan and Stephen G. Breyer, both members of the liberal wing, sided with the conservatives in refusing to apply anti-discrimination laws to the employment of religion teachers in parochial schools.
Still, it seems clear that the political setting in which a claim of religious freedom arises affects not only how it is viewed by the public but also, sometimes at least, how it is treated by the courts. The whole idea of a constitutional right, however, is that it protects against all government measures, liberal or conservative, that would interfere with its exercise. And the whole idea of judicial review is that judges will protect that right regardless of how unpopular its assertion may be. The Supreme Court has been faithful to these ideals when it comes to enforcing the First Amendment rights of free speech and freedom of association. If it is equally faithful when it comes to enforcing the First Amendment right to the free exercise of religion, its decisions will be no more liberal or conservative than the right to religious freedom itself.