“[W]hat should replace Smith?”1×1. Fulton, 141 S. Ct. at 1882 (Barrett, J., concurring). Justice Kavanaugh joined her opinion and Justice Breyer joined all but the first paragraph, which endorsed “textual and structural arguments against Smith.” Id. That was Justice Barrett’s main question in Fulton v. City of Philadelphia. She expressed serious misgivings about the governing free exercise rule, set out in Employment Division v. Smith,2×2. 494 U.S. 872 (1990). according to which laws that are neutral and generally applicable do not draw a presumption of invalidity simply because they burden religion.3×3. See id. at 878–79. But she also hesitated to embrace the leading alternative, according to which a law that substantially burdens free exercise cannot be applied unless the government can show that it is narrowly tailored to the pursuit of a compelling interest. That “strict scrutiny regime” would raise a series of difficult questions for her.4×4. Fulton, 141 S. Ct. at 1883 (Barrett, J., concurring) (raising questions about the differential treatment of entities and individuals, the distinction between direct and indirect burdens, and the proper level of scrutiny). Reluctant to face them unnecessarily, she instead joined the majority opinion, which exempted a religious organization from Philadelphia’s civil rights requirement for narrower reasons.
Altogether, five Justices criticized the core Smith rule — joining a sixth, Justice Breyer, who had long voiced reservations.5×5. Justice Alito, joined by Justices Thomas and Gorsuch, called for overruling Smith and replacing it with a compelling interest test for all substantial burdens on free exercise. Id. at 1924 (Alito, J., concurring in the judgment) (“Smith was wrongly decided. . . . If Smith is overruled, what legal standard should be applied in this case? The answer that comes most readily to mind is the standard that Smith replaced: A law that imposes a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest. Whether this test should be rephrased or supplemented with specific rules is a question that need not be resolved here because Philadelphia’s ouster of [Catholic Social Services] from foster care work simply does not further any interest that can properly be protected in this case.”). For Justice Breyer’s view, see City of Boerne v. Flores, 521 U.S. 507, 566 (1997) (Breyer, J., dissenting) (“I agree with Justice O’Connor that the Court should direct the parties to brief the question whether [Smith] was correctly decided, and set this case for reargument.”). No Justice defended that rule in Fulton or any other recent decision.6×6. Fulton, 141 S. Ct. at 1931 (Gorsuch, J., concurring in the judgment) (“[N]ot a single Justice has lifted a pen to defend [Smith].”). Given the lack of enthusiasm, it is reasonable to think that overruling Smith remains a possibility.7×7. Prominent scholars have already started to answer Justice Barrett’s question. See Thomas Berg & Douglas Laycock, Protecting Free Exercise Under Smith and After Smith, SCOTUSblog (June 19, 2021, 6:37 PM), https://www.scotusblog.com/2021/06/protecting-free-exercise-under-smith-and-after-smith [https://perma.cc/D7HQ-CMJU] (“[W]e want to begin to address Barrett’s questions. We think the compelling-interest test should usually govern when a generally applicable law substantially burdens religion.”); Douglas Laycock & Thomas C. Berg, Protecting Free Exercise Under Smith and After Smith, Cato Sup. Ct. Rev. (forthcoming 2021) (on file with the Harvard Law School Library). What may make the prospect even more thinkable for Justice Barrett is her realization that “swapping Smith’s categorical antidiscrimination approach” need not mean adopting “an equally categorical strict scrutiny regime.”8×8. Fulton, 141 S. Ct. at 1883 (Barrett, J., concurring). More “nuanced” models are available,9×9. Id. (noting that “this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights — like speech and assembly — has been much more nuanced” than under a strict scrutiny regime). and they may prove attractive to a relatively broad coalition of constitutional actors, not only on the Court but more widely as well.
Of course, it is far from inevitable that Smith will be formally overruled or explicitly abandoned. The Roberts Court may prefer to cut a series of fine distinctions without reformulating any landmark precedents. A similar doctrine of details seems to be governing in the Establishment Clause area, with major precedents repeatedly criticized and repeatedly bypassed without being overturned outright.10×10. See, e.g., Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2080 (2019) (“If the Lemon Court thought that its test would provide a framework for all future Establishment Clause decisions, its expectation has not been met. In many cases, this Court has either expressly declined to apply the test or has simply ignored it.”).
Yet the strain is showing. Chief Justice Roberts’s majority opinion in Fulton turned on a technicality that was difficult to explain to nonspecialists. He decided that the Free Exercise Clause protected a religious child welfare agency that refused to certify same-sex couples as foster parents.11×11. Fulton, 141 S. Ct. at 1882. Strict scrutiny applied because Philadelphia had created a “system of individual exemptions” from its antidiscrimination rules, which otherwise shielded LGBTQ+ couples.12×12. Id. at 1878. According to this esoteric exception to Smith, Philadelphia’s ability to grant exemptions from the antidiscrimination rule was enough to trigger a presumption against its regulation of the religious agency.13×13. Id. Philadelphia then failed to overcome the presumption, according to the Court, when it did not show that it had a compelling interest in applying its antidiscrimination rule to the religious agency. Id. at 1881–82. And Fulton was only the most recent free exercise decision with overwrought reasoning.14×14. See, e.g., Leslie Kendrick & Micah Schwartzman, The Etiquette of Animus, 132 Harv. L. Rev. 133, 135 (2018) (suggesting that the Court in Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719 (2018), failed to fulfill the “‘duty of civility,’ which requires providing sufficient justifications for legal decisions” (footnote omitted) (quoting John Rawls, Political Liberalism 217 (1st ed. 1993))). Unless the Court is willing to settle for contrived justifications for its outcomes, it will have to bring greater coherence to religious freedom law before too long.
What is more, the political conditions for a doctrinal overhaul are surprisingly favorable, despite the polarization that otherwise divides judges, lawmakers, and the country. On the Court, the more liberal Justices have not rejected the idea of rethinking the main free exercise rule.15×15. Justice Breyer has long questioned the wisdom of Smith, see supra note 5. Liberals could be found on both sides of the rule when it was announced in Smith itself, though it was principally seen as a conservative decision. See Emp. Div. v. Smith, 494 U.S. 872, 873–90 (majority opinion joined by Justice Stevens); id. at 891–903 (O’Connor, J., concurring in the judgment) (joined by Justices Brennan, Marshall, and Blackmun as to Parts I and II, which dissented from the new free exercise rule). And among scholars, opinions do not neatly sort along partisan lines.16×16. For examples of scholars to the left of the political center who have criticized Smith, see Steven H. Shiffrin, The Religious Left and Church-State Relations 16–17 (2009); Alan Brownstein, Taking Free Exercise Rights Seriously, 57 Case W. Rsrv. L. Rev. 55, 57 (2006); Kent Greenawalt, Religion and the Rehnquist Court, 99 Nw. U. L. Rev. 145, 154–55 (2004); and James M. Oleske, Jr., Free Exercise (Dis)honesty, 2019 Wis. L. Rev. 689, 739–42. Of course many conservatives have called for its replacement as well, among whom perhaps the leading example is Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1152–53 (1990) [hereinafter McConnell, Free Exercise Revisionism]. To the left of center, Smith or something similar has been supported by numerous academics, including Frederick Mark Gedicks, An Unfirm Foundation: The Regrettable Indefensibility of Religious Exemptions, 20 U. Ark. Little Rock L.J. 555, 572–73 (1998); Leslie C. Griffin & Marci A. Hamilton, Why We Like Smith: We Want Neutral and General Laws to Prevent Harm, Verdict (Apr. 20, 2021), https://verdict.justia.com/2021/04/20/why-we-like-smith-we-want-neutral-and-general-laws-to-prevent-harm [https://perma.cc/2MTL-CGPA]; and Ira C. Lupu & Robert W. Tuttle, The Radical Uncertainty of Free Exercise Principles: A Comment on Fulton v. City of Philadelphia, Am. Const. Soc’y Sup. Ct. Rev. (forthcoming 2021) (on file with the Harvard Law School Library). Those on the right who support Smith include Richard W. Garnett, The Political (and Other) Safeguards of Religious Freedom, 32 Cardozo L. Rev. 1815, 1816 (2011); and Eugene Volokh, A Common-Law Model for Religious Exemptions, 46 UCLA L. Rev. 1465, 1470 (1999). So although the politics of free exercise exemptions have shifted over time, with many liberals and progressives now wary of a measure that they once supported as essential to the protection of religious minorities, that change has not resulted in a consensus among them in favor of the governing rule.
Given that some on the political left are open to rethinking Smith, it is surprising that they have not coalesced around an answer to Justice Barrett’s question. That said, elements of an alternative have been proposed by legal academics,17×17. See, e.g., 1 Kent Greenawalt, Religion and the Constitution: Free Exercise and Fairness 142–56 (2006); Oleske, supra note 16, at 740–41; Brownstein, supra note 16, at 57–60. as well as by those writing in political theory.18×18. See, e.g., Cécile Laborde, Liberalism’s Religion 217–21 (2017); Alan Patten, The Normative Logic of Religious Liberty, 25 J. Pol. Phil. 129, 143–49 (2017). This Comment builds on their work. At the present moment of reexamination and possible reformation, it is important to articulate a clear alternative, both to the existing free exercise interpretation and to the strict-scrutiny option, which was defended in Fulton by Justice Alito.19×19. See supra note 5 (describing Justice Alito’s opinion).
This Comment sets out a model for free exercise that supports exemptions from general laws while sustaining the essential conditions for a democratic society. Liberty of conscience interprets free exercise to require a rebuttable presumption of unconstitutionality against laws and policies that substantially burden people’s most profound beliefs and practices.20×20. The term liberty of conscience has a long history, though it is being retrofitted here to denote a specific set of constitutional commitments that reconcile the basic liberty with democratic imperatives. See John Locke, Two Treatises of Government and a Letter Concerning Toleration 246 (Ian Shapiro, ed. 2003) (“[L]iberty of conscience is every [person’s] natural right, equally belonging to dissenters as to themselves.”); see also Noah Feldman, Divided by God: America’s Church-State Problem — And What We Should Do About It 27, 32–33 (2005) (“Liberty of conscience provided the principle motivating the American experiment in the nonestablishment of religion. But this was liberty of conscience with a distinctly American twist.”). It thereby protects them from government actions that interfere with their basic freedom or with their standing as coequal partners in a society that is engaged in a cooperative enterprise of self-government. Because it shields everyone who is exercising a fundamental right, it counts as a liberty principle. Yet it is also egalitarian, and it implements that commitment by incorporating legal mechanisms that are designed to prevent powerful actors from using exemptions to undermine the predicates of any democracy. These mechanisms combine to make up the overall framework of liberty of conscience, and they include: a moderated standard of scrutiny rather than maximum scrutiny, a commitment to the judgment that the government has a sufficiently strong interest in protecting civil rights, a reasonable limit on third-party harms, and a fair division of social responsibility. This nuanced approach is grounded in basic commitments, and it is conceivable as a reconstruction of the free exercise tradition.21×21. See Ronald Dworkin, Law’s Empire 65–68 (1986) (setting out interpretation’s twofold criteria of fit and justification). In practice, the case law on free exercise has not consistently adhered to the main rule of Smith. See infra section II.B, pp. 303–07 (describing the ways the Court has departed from Smith without convincing justification). Modalities of text, structure, and history are also compatible with free exercise exemptions. See, e.g., Laycock & Berg, supra note 7 (manuscript at 5).
However, this Comment also warns that the ideal framework is unlikely to be attractively realized under nonideal conditions — in particular, our contemporary circumstances of extreme political polarity. Even if the proposal were to win majority support, it might only give the Roberts Court greater leeway to extend a recent pattern of decisionmaking that favors religious actors.22×22. The only exception, putting aside the shadow docket, is the travel ban case, Trump v. Hawaii, 138 S. Ct. 2392 (2018). On the shadow docket, the Court did once deny a death row inmate access to an imam at the time of execution, though more recently it all but confessed error. Compare Dunn v. Ray, 139 S. Ct. 661, 661 (2019), with Dunn v. Smith, 141 S. Ct. 725, 726 (2021). Early in the pandemic, moreover, the Court twice ruled against churches on the shadow docket. See Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603 (2020) (mem.); S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (mem.). As the crisis stretched on, the Court repeatedly issued orders in favor of churches. See, e.g., Tandon v. Newsom, 141 S. Ct. 1294, 1297–98 (2021) (mem.) (granting one such application and listing other orders). One exception came in a case in which the government’s school-closing order was about to expire. See Danville Christian Acad., Inc. v. Beshear, 141 S. Ct. 527 (2020). Liberty of conscience has an open texture that may well increase the power of courts to wield judicial review in a manner that implements a problematic politics. Legal rules can matter, even when results are overdetermined by interests in addition to ideas. Those concerned about conditions of equal citizenship, and the prospects for cooperative governance more generally, therefore have good reason to pause before throwing their support behind free exercise exemptions under the social and political conditions that mark this moment in history.
Part I describes the fundamentals of liberty of conscience. Minorities in matters of conscience presumptively should be free from substantial government burdens, not only to preserve the moral independence that allows them to hold their republican representatives to account, and not only to shield against a majoritarian political process that is liable to oppress or overlook them, but also simply to protect against disproportionate burdens that can be relieved at acceptable cost. Basic democratic commitments support the availability of exemptions from general rules for the exercise of conscience, along with limitations on that availability.
Section I.A distinguishes the model from leading theories grounded in equality or neutrality. It also clarifies briefly that free exercise exemptions properly protect not just religion as such but a broader class of beliefs and practices, specified by constitutional values and signified here by the term conscience. In this section and the succeeding three, the Part regularly references a developed literature rather than constructing a freestanding defense. The Comment brings together components of an egalitarian conception of liberty of conscience.
Section I.B envisions that the presumption can be overcome by important government interests, including combatting structural injustice through civil rights protections. Section I.C draws out an important but often implicit constraint on freedom of conscience, namely that it does not protect believers against responsibilities they bear to contribute to a fair framework of social cooperation. Paying taxes is the classic example of a duty that does not normally admit exemptions, however much it might burden conscience. Separately, section I.D explains that exemptions for conscience must be tempered by fairness to others and by avoidance of harm to others.
Sections I.E and I.F argue briefly that any exemption doctrine must be supplemented by a commitment to equality on the basis of religion and conscience. First, section I.E supports a stronger presumption against laws and policies that discriminate on the basis of faith or freethinking, either facially or in their purpose.23×23. See infra section I.E, pp. 291–92. Widespread agreement exists on this point even today, though that consensus does not yet extend to the antisubordination interpretation that the section favors. Section I.F summarizes a distinct conception of free exercise equality, equal value, which is fully examined in a companion article.24×24. Nelson Tebbe, The Principle and Politics of Equal Value, 121 Colum. L. Rev. (forthcoming 2021) (on file with the Harvard Law School Library) [hereinafter Tebbe, The Principle and Politics of Equal Value]. Language in Fulton reaffirmed the principle,25×25. Fulton, 141 S. Ct. at 1877 (“A law also lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.”). which had been developed in a series of orders concerning restrictions on religious gatherings in the context of the Covid outbreak.26×26. The most important of these orders was in Tandon v. Newson, 141 S. Ct. 1294, where the Court found that “California treats some comparable secular activities more favorably than at-home religious exercise.” Id. at 1297. Equal value is compatible with liberty of conscience — but both approaches are susceptible to political dynamics.
Part II cautions that liberty of conscience is unlikely to be adopted completely and administered appealingly. Political conservatives on the Roberts Court and elsewhere can be expected to continue to deploy free exercise law to protect religious actors and to constitutionalize laissez-faire economics. However much traditional believers are being burdened by aggressive secular programs, as they sincerely believe they are, the Court’s decisionmaking on free exercise is patterned in ways that look more like privileging than protecting.27×27. Cf. Christopher L. Eisgruber & Lawrence G. Sager, The Vulnerability of Conscience: TheConstitutional Basis for Protecting Religious Conduct, 61 U. Chi. L. Rev. 1245, 1250–51 (1994) (distinguishing between privileging and protecting religion).
Part II begins with Fulton itself. The rule used there, which again applies strict scrutiny to any system of individualized exemptions that fails to accommodate religion,28×28. Fulton, 141 S. Ct. at 1878. is not completely unfamiliar. Yet it has a checkered past and present. Justice Scalia engineered the legal device solely to allow the Smith Court to remake free exercise law without overruling any precedents. Until Fulton, the individualized exemption rule had never been relied on exclusively to support a holding in the Supreme Court.29×29. For a full discussion of the relevant precedent, see infra note 180. And there, the Roberts Court dusted off the rule for a strikingly similar purpose: to whitewash a turnabout, so that it could continue to remake free exercise law to more strongly empower religious interests without formally repudiating any cases. Understood in this political manner — and only this way — Fulton made sense and was remarkably successful. It not only achieved unanimity as to the outcome, but it avoided all criticism of its reasoning from the more liberal Justices. Although its justification was overtaxed, its politics were unambiguous.
Extending that analysis, section II.B contends that the Roberts Court has repeatedly ruled in favor of religious actors while tolerating contradictions within existing doctrine on religious freedom. Decisions on matters like the ministerial exception, public accommodations, and the travel ban are difficult to square with preexisting law without relying on artificial distinctions. Relatedly, section II.C explains how the Court is increasingly willing to accept religious exemptions that harm others, in contravention of its own holdings and the requirement of evenhandedness. Section II.D observes that the Court’s approach to religious exemptions differs from its treatment of incidental burdens on other fundamental rights, especially freedom of speech, though it acknowledges some justifications and complexity. Section II.E emphasizes that the Court is finding ways to excuse violations of civil rights laws, even though those laws have been held to be supported by the strongest possible government interests. Finally, section II.F reviews recent empirical evidence that is consistent with an explanation of partisan politicking.
The Conclusion returns to Justice Barrett’s question and considers how it should be answered in light of this Comment. Someone could agree that liberty of conscience presents an ideal approach to free exercise exemptions, and they could also accept that it is unlikely to be attractively applied under nonideal conditions. They would then face a distinct question of how to proceed. At least three options are open to lawyers, judges, and academics who wish to promote democratic commitments.
One possibility would be to continue to press for the ideal framework for free exercise exemptions, and to dissent powerfully and persistently when it is rejected or implemented selectively. That would mean cooperating with a reformulation of Smith while insisting on guardrails that ensure the political equality of all members of the democratic community. A difficulty with this choice is that it increases the probability that a presumption against substantial burdens will be adopted, but in a version that will prove more harmful than the status quo. If liberty of conscience is more permissive than the current constitutional framework, and if a more permissive rule would empower a problematic politics, then advocating for it may be counterproductive.
Another option would be to argue for a second-best solution, such as sticking with the rule of Smith for pragmatic reasons. However, the Court has found ample room to implement its preferences under the extant legal regime as well. As Part II suggests, the majority may even prefer to obscure constitutional change by executing it under prevailing rules. Affirmatively promoting those rules, even as a second-best solution, may feel not only unfortunate but also ineffective.
A third alternative would be to simply let Justice Barrett’s question go unanswered. Resources could then be devoted to arguing for the best outcomes in particular cases, leaving the framework of free exercise for another day. That tactic might end up looking uncomfortably like the Roberts Court’s doctrine of details, though on behalf of different outcomes. Ultimately, the choice among these three is a question of strategy that deserves its own treatment. What is clear is that judges, lawyers, and academics face hard choices and that their decisions will shape a key element of constitutional law at a consequential moment in history.
* Jane M.G. Foster Professor of Law, Cornell Law School. Thanks for helpful comments to Netta Barak-Corren, Corey Brettschneider, Alan Brownstein, Michael C. Dorf, Linda Greenhouse, B. Jessie Hill, Jeremy K. Kessler, Cécile Laborde, Douglas Laycock, Christopher C. Lund, Douglas NeJaime, James D. Nelson, James M. Oleske, Jr., Alan Patten, Laura Portuondo, David Pozen, Zalman Rothschild, Lawrence G. Sager, Richard Schragger, Micah Schwartzman, Steven H. Shiffrin, Mark Storslee, and participants in the Nootbaar Institute Fellows Workshop at Pepperdine Caruso School of Law. The author participated in amicus briefs filed in two of the cases discussed. Brief of Church-State Scholars as Amici Curiae in Support of Respondents, Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021) (No. 19-123); Brief of Church-State Scholars as Amici Curiae in Support of Respondent, Danville Christian Acad., Inc. v. Beshear, 141 S. Ct. 527 (2020) (No. 20A96).