The Court after Scalia: The complex future of free exercise

Marci Hamilton is the Fox Family Pavilion Distinguished Scholar at the University of Pennsylvania and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty (which was nominated for a 2015 Pulitzer Prize) and Justice Denied: What America Must Do to Protect Its Children.

The free exercise of religion has been in flux for over a quarter of a century, and the 2016 presidential election, which entails a Supreme Court appointment, is unlikely to calm the waters quickly, regardless of who wins. The instability of free exercise doctrine has been the result of Congress enacting its own standard for free exercise cases, which has moved the First Amendment to the periphery and invited the introduction of extreme religious liberty claims that upend prior free exercise principles. I will focus on the potential effects on free exercise if Democrats control the presidency and the Senate, as many predict. The voters’ choice of president and members of Congress, and then the choice of the next Supreme Court Justice, will determine whether the drive to extreme religious liberty will be checked or abetted.

A brief history

The interpretation of the Free Exercise Clause, worked out over slightly more than a century starting with Reynolds v. United States, came to rest on the following principles: (1) there is an absolute right to believe but not an absolute right to act (Reynolds; Cantwell v. Connecticut); (2) the government may not mandate speech in contravention of one’s religious belief (West Virginia State Board of Education v. Barnette; Wooley v. Maynard); (3) harm to others is a limit on free exercise (Reynolds; United States v. Lee); (4) lawmakers may (and often do) exempt religious conduct from otherwise neutral, generally applicable laws (Employment Division v. Smith); and (5) the government may not target or discriminate against a religious individual or entity without strong and articulated reasons (Church of Lukumi Babalu Aye, Inc. v. Hialeah; Sherbert v. Verner). The doctrine, taken as a whole, protected religious believers and entities by absolutely protecting their right to believe, and shielding them from discrimination, but it also took into account the potential for harm and obligations to the larger society and the rule of law. The 1990 decision in Employment Division v. Smith rested on these principles.

Today, it is widely assumed that conservatives favor extreme religious liberty, but that is only a relatively recent phenomenon. The majority in Smith was written by Justice Antonin Scalia and drawn from the Court’s more conservative Justices: William Rehnquist, Byron White, John Paul Stevens, Sandra Day O’Connor, and Anthony Kennedy. The centrist at the time, Justice Sandra Day O’Connor, wrote a concurrence. The dissent was composed of the liberals on the Court: Harry Blackmun, William Brennan, and Thurgood Marshall. Smith generated a furious bipartisan political backlash led by conservative Christians as part of a group called the Coalition for the Free Exercise of Religion.

From the 1960s to that point, religious entities argued before the Court for extremely strong protection for religious conduct. They had one isolated victory in Wisconsin v. Yoder, but by and large, they could not move the Court to install strict scrutiny for every free exercise case. The Smith decision definitively and expressly rejected strict scrutiny for the vast majority of free exercise cases.

Angry that they could not get strict scrutiny in every situation, religious and civil rights lobbyists turned to Congress to pass legislation. The Religious Freedom Restoration Act (RFRA) was first passed in 1993. Four years later, it was held unconstitutional in City of Boerne v. Flores. In 2000, Congress enacted a new RFRA to apply solely to federal law and to give religious groups the standard they had been unable to obtain from the Supreme Court. At the same time, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA), which imposes the same standard against state laws involving land use and prisons, and conservative RFRA activists spread out to the states to enact state-based RFRAs in individual states.

The rise of RFRA and the sidelining of the First Amendment’s Free Exercise Clause

The Religious Freedom Restoration Act was a Pandora’s box wrapped in shiny paper that members of Congress could not resist and did not open to examine. It still is. The result has been two-fold: First, there has been a diminution of the Supreme Court’s role in framing free exercise doctrine while RFRA has increasingly displaced the First Amendment in free exercise cases. No free exercise case was decided by a legislatively mandated standard before RFRA was passed. Since RFRA’s inception, the free exercise cases have been almost exclusively decided under a statutory standard. Since 1994, there have been no cases in which the First Amendment’s Free Exercise Clause has been dispositive. Instead, it has been a factor in the big-picture Religion Clauses decision on the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. Correlatively, the question addressed by the Court in City of Boerne v. Flores required reference to it, but the decision was about the power of Congress. Free exercise cases decided under RFRA or RLUIPA – with the First Amendment playing a secondary role at most – include Zubik v. Burwell (RFRA), Burwell v. Hobby Lobby Stores, Inc. (RFRA), Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (RFRA), and Cutter v. Wilkinson (RLUIPA).

Second, RFRA has increasingly revealed itself as a tool for the conservative “traditional values” agenda first introduced into the political sphere by the Moral Majority in the late 1970s. Founded by the Rev. Jerry Falwell, the Moral Majority was a fundamentalist Christian organization that entered the political sphere to oppose the legalization of abortion, women’s rights, and gay rights. The RFRA formula has been at work and has tended to favor the conservative social agenda first laid out by the Moral Majority – for example, in Burwell v. Hobby Lobby Stores, Inc., holding that a for-profit corporation can decline to provide its female employees with health insurance that includes medical care that conflicts with the owners’ religious beliefs, and Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., upholding a funeral home’s decision, in the wake of Hobby Lobby, to fire a transgender employee based on the owner’s religious beliefs. Civil rights groups – including the ACLU, Americans United for Separation of Church and State, and People for the American Way – that initially supported RFRA have split off and now actively oppose it. (Just to keep things as complex as possible – the ACLU drafted RLUIPA and now supports RFRA in some categories but not in others, depending on its agendas.) The result has been a divisive political debate over what to do with RFRA. For the conservatives, there have been proposals to supplement RFRA to create a free exercise regime even more favorable to the conservative agenda (for example, the federal First Amendment Defense Act (FADA) and the Mississippi Religious Freedom Restoration Act). Liberals, who have been educated by watching RFRA in action, have suggested carving back RFRA (for example, the federal Do No Harm Act and numerous state bills to provide equality for LGBTQ in employment, housing, and public accommodations).

Constituencies harmed and/or threatened by the RFRA formula have included female employees (Burwell v. Hobby Lobby; Zubik v. Burwell), LGBTQ (EEOC v. R.G. &. G.R. Harris Funeral Homes), and children (Perez v. Paragon Contractors Corporation). It has been a struggle to insert “harm to others” into the RFRA cases because the legislative language so heavily favors the believer. This was true of the first RFRA of 1993 but even more true of the RFRA of 2000, which added this language requiring “broad construction” in favor of the believer: “This chapter shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.”

The factors for Clinton to consider on free exercise

With the experience under RFRA at the federal level (and in the states), it seems unlikely that Clinton would support an appointee who embraces an extreme religious liberty standard, whether it is under RFRA or the First Amendment. That is not the end of the inquiry, however, because her choice must take into account the politics of Congress as much as her own perspective. To wit, a Republican-controlled Congress will not enact the Do No Harm Act, and if it were to enact FADA, it is unlikely Clinton would sign it. Therefore, RFRA would remain in place at its current levels, and the First Amendment Free Exercise Clause would continue to be mostly dormant. In contrast, if a Democrat-controlled Congress were to enact the Do No Harm Act, there will be greater play for First Amendment doctrine to rise again. In turn, that will make it important to know how the next Supreme Court appointee would rule on prevailing constitutional free exercise doctrine, not just extreme religious liberty statutes. That may be difficult to determine, however, with the First Amendment mostly in mothballs for over twenty years, and so sitting judges would have had few instances to consider constitutional free exercise interpretation, let alone write an opinion in the area.

To determine effect on free exercise doctrine, a candidate will first need to be vetted for how she has ruled, written, or spoken on RFRA issues. A strongly pro-believer reading of RFRA, especially on hot-button issues involving abortion, women’s reproductive rights, and LGBTQ issues, is unlikely to be attractive to Clinton. So long as RFRA dominates, what she has said or done regarding the First Amendment will be less predictive.

Add to this uncertainty in Congress and among potential nominees the fact that sitting Justices have had few opportunities to rule on the First Amendment’s free exercise doctrine themselves, and so it is not crystal clear how each of them would rule in a universe in which the First Amendment controlled free exercise. We do know this: only a minority of the Court over the decades has endorsed a stronger standard than the Smith court, and since 1990 the Court has not disavowed the doctrine that the Court announced in Smith despite the politics. (See, for example, its decisions in Hobby Lobby, O Centro Espirita, and Cutter v. Wilkinson.)

The Hosanna-Tabor decision provides some guidance: seven members of the Court embraced a right of religious organizations to avoid the anti-discrimination laws in the choice of clergy but moderated the effect of the holding by stating: “We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.” Only Justices Samuel Alito and Elena Kagan embraced the language of “autonomy” for religious organizations, which had never before been invoked by a sitting Supreme Court Justice. Thus, there is little evidence the Court has an appetite to alter the constitutional free exercise principle confirmed in Smith providing that neutral, generally applicable laws control even believers.

Carving back RFRA, therefore, should bring the First Amendment’s free exercise at least partially out of retirement. That would be a remarkable achievement for the next President of the United States and Congress.