1B. Why Have RFRA-Like Religious Exemption Regimes?

(For an introduction to this series of posts, see here.)

The previous post in this series has explained what RFRA is, and what general rules it sets forth. For nearly all the remaining posts, I’ll take RFRA as given, and not deal with the broader question of whether having such a statute is a good idea. (That’s a perfectly sensible question to ask, but it’s not one that the Court will have to confront in Hobby Lobby.) Still, I think it’s helpful to think a bit about what the main arguments for RFRA are — whether you accept them or not — since this may help us understand how the Court will interpret RFRA.

RFRA begins with the findings that, “the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution,” and “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” To this point, this might sound like a justification for massive protection. Does your religion require you not to pay any taxes to what you see as a corrupt, un-Godly government? Well, tax laws may burden this religious exercise as surely as laws intended to discriminate against your religion, and, hey, your free exercise of religion is an “unalienable right.”

But of course our legal system has never accepted any such view of free exercise. Likewise if your religion requires you to make pilgrimages to a visitation of the Virgin Mary on my property, or to take my property and give it to the poor, or to kill me for blaspheming, or to do many other things that the legal system forbids with no regard for religious objections.

Even if we set aside religious actions that infringe on long-recognized common-law private rights (life, property, and the like), RFRA’s drafters can’t have been trying to protect all “exercise of religion” — in the sense of all conduct or abstention from conduct mandated by one’s religion — as an “unalienable right.” Say, for instance, that your religion requires you not to pay certain kinds of taxes, or to refuse to hire members of certain races at your factory, or to refuse to fight in unjust wars (a broader exemption claim than that allowed by the statutory conscientious objector exemption, which only applies to people who object to all wars). Courts even during the Sherbert/Yoder constitutional exemption era largely rejected such religious exemption claims, and there’s no reason to think that Congress wanted to allow such claims.

Indeed, the very next provision in the RFRA findings section, coupled with the body of the statute, confirms that religious exemption claims are always subject to override by “compelling government interest[s].” “[G]overnments should not substantially burden religious exercise without compelling justification.” “[T]he compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person … is the least restrictive means of furthering [a] compelling governmental interest.” And the Sherbert/Yoder-era cases that RFRA is aiming to restore didn’t even set the “compelling interest” bar at that high a level.

The rationale of RFRA then isn’t really that free exercise of religion is truly “unalienable,” in the sense that the government cannot take it away. Rather, I think it is best framed as roughly this:

1. It is good — both for religious observers and for civil peace — to shape our laws in a way that lets people live in a way that is consistent with their felt religious obligations.

2. Of course, some civil obligations will have to be imposed on all, without regard to their religious views.

3. But in some situations, accommodating religious objectors will actually not be particularly costly either for society as a whole or for other citizens. Religious objectors should therefore be exempted in those situations, so long as any “compelling government interests” can still be served effectively despite the exemption.

And these situations are particularly common when a law imposes only a relatively modest burden on most citizens, but is felt as imposing a great burden indeed on religious observers. (That’s not the RFRA statutory test, but rather my description of cases where an exemption is especially likely to be granted, and has an especially strong argument in its favor.) For instance, a requirement that people take off their headgear in court, as a customary acknowledgment of the importance of the proceedings, is generally only a slight burden to most people. But it is a huge burden to Orthodox Jews, Sikhs, and Muslim women who wear headscarves. Granting religious objectors an exemption from the rule won’t do much to undermine the decorum of the courtroom, but it will let the religious objectors live normal civic lives without violating either what they see as religious law or the secular law.

(Note that much the same argument could be used for deeply held secular philosophical objections. I largely set aside here the question whether RFRA should be interpreted to cover such objections as well as religious objections, though I touch on it very briefly in this article. Follow that link for cases — dealing with the religious objection to draft law and with the religious accommodation provision of Title VII — that have indeed interpreted religious exemptions to cover secular philosophical exemptions, and see the start of Part II of Wisconsin v. Yoder for a contrary view.)

This also helps explain why a legislature might want to enact a RFRA, rather than just specifically considering possible religious objections at the time each law is enacted, and enacting statute-by-statute exemptions. Usually, religious exemptions will be low-cost precisely when they are rare — when the law will apply to the great bulk of the public, and only a few idiosyncratic religious objectors will get exemptions. In such situations, the legislature often won’t want to spend time and effort debating a rare exemption. Indeed, sometimes the potentially objecting religious group won’t be well-known or even present in the jurisdiction at the time the law is enacted.

A legislature might thus want to leave these decisions to courts, to be decided as exemptions arise, rather than having to make the decisions on a statute-by-statute basis whenever any statute is enacted. (The legislature might also think that the judicial process will be fairer to dissenting religious groups than the legislative process, and yield decisions that are more driven by principled analysis and less by raw political power, though I’m not sure how optimistic we should be about that.) That, at least, is the theory of the RFRAs.

Of course, the problem is that deciding whether accommodating religious objectors will indeed be not particularly costly, either for society as a whole or for other citizens, often involves hotly contested moral and pragmatic judgments. Should Amish children, for instance, be exempted from compulsory education after age 14, as the Court held in Wisconsin v. Yoder (1972)? A lot depends on whether you think that, as a moral matter, children should have a right to be exposed to more ideas and concepts, in case they want to eventually leave their religious community. (That was Justice Douglas’s objection in dissent.) A lot also depends on whether you think that, as an empirical matter, Amish children who do leave the community will have a hard time making up for the lost years of school — two years in Yoder, since Wisconsin only mandated education up to age 16.

Likewise, should landlords who don’t want to rent to unmarried couples be exempted from bans on marital status discrimination in housing, if they believe that it is sinful for them to thus assist in what they see as fornication? (This issue came up in several lower court cases in the 1990s.) A lot depends on whether you think that, as a moral matter, unmarried couples have a moral right to equal treatment in any housing transactions, or whether you think that unmarried couples have at most a right to reasonable access to affordable housing. And a lot also depends on whether you think that, as an empirical matter, allowing religious landlords to refuse to rent to unmarried couples would indeed substantially interfere with the couples’ access to affordable housing.

Because of this, I think the Court was right in Smith to conclude that courts ought not be making such decisions as a constitutional matter, in deciding whether to carve out exemptions from drug laws, antidiscrimination laws, compelled testimony rules, assisted suicide bans, animal cruelty laws, and a vast range of other laws. (I discuss this in much more detail in this article, and also explain how religious freedom claims differ from claims, such as free speech claims, in which courts do make such constitutional judgments.) If the legislature really does think that a religious exemption would violate someone else’s rights, or would substantially interfere with pragmatic legislative goals, courts shouldn’t trump this legislative judgment.

But RFRA doesn’t put courts in the position of trumping such a legislative judgment. Precisely because RFRA is a statute, the legislature can always exclude future statutes from RFRA — either when it passes the statutes, or after a court decision granting an exemption. So if, for instance, Congress thinks that there shouldn’t any religious exemptions from the employer mandate, it could enact a statute saying, “the employer mandate shall not be subject to RFRA.” (Of course, as a political matter this is unlikely, given the Democrats’ loss of their Congressional majority, but that simply reflects the fact that Congress likely wouldn’t want to overturn any such decision — it still could do so if it wanted to.) The legislature thus still retains the last word on when religious exemptions should be allowed.